SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
[FEE REQUIRED]
For the fiscal year ended December 31, 1994
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from to
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Commission File Number 1-2578
OHIO EDISON COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OHIO 34-0437786
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
76 SOUTH MAIN STREET, AKRON, OHIO 44308
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: 1-800-736-3402
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
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Each registered on
Common Stock, $9 par value New York Stock Exchange
Rights to Purchase Common Stock and
Chicago Stock Exchange
Cumulative Preferred Stock, $100 par value
3.90% Series 7.24% Series
4.40% Series 7.36% Series All series registered on
4.44% Series 8.20% Series New York Stock Exchange
4.56% Series and
Chicago Stock Exchange
Cumulative Preferred Stock, $25 par value Registered on
7.75% Series New York Stock Exchange
and
Chicago Stock Exchange
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: None
Indicate by check mark if disclosure of delinquent filers pursuant
to Item 405 of Regulation S-K is not contained herein, and will not
be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part
III of this Form 10-K or any amendment to this Form 10-K. X
---
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days:
Yes X No
--- ---
State the aggregate market value of the voting stock held by non-
affiliates of the registrant: $2,992,557,650 as of March 7, 1995.
Indicate the number of shares outstanding of each of the
registrant's classes of common stock, as of the latest practicable
date:
CLASS OUTSTANDING AT MARCH 21, 1995
----- -----------------------------
Common Stock, $9 par value 152,569,437
Documents incorporated by reference (to the extent indicated
herein):
PART OF FORM 10-K INTO WHICH
DOCUMENT DOCUMENT IS INCORPORATED
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Annual Report to Stockholders for the
fiscal year ended December 31, 1994
(Pages 12-30) Part II
Proxy Statement for 1995 Annual Meeting
of Stockholders to be held April 27, 1995 Part III
ITEM 14. Exhibits
Exhibit
Number
- -------
(A) 3-1 - Amended Articles of Incorporation, Effective June
21, 1994, constituting the Company's Articles of
Incorporation.
3-2 - Code of Regulations of the Company as amended
April 24, 1986. (Registration No. 33-5081,
Exhibit (4)(d).)
10-1 - Administration Agreement between the CAPCO Group
dated as of September 14, 1967. (Registration No.
2-43102, Exhibit 5(c)(2).)
10-2 - Amendment No. 1 dated January 4, 1974 to
Administration Agreement between the CAPCO Group
dated as of September 14, 1967. (Registration No.
2-68906, Exhibit 5(c)(3).)
10-3 - Transmission Facilities Agreement between the
CAPCO Group dated as of September 14, 1967.
(Registration No. 2-43102, Exhibit 5(c)(3).)
10-4 - Amendment No. 1 dated as of January 1, 1993 to
Transmission Facilities Agreement between the
CAPCO Group dated as of September 14, 1967. (1993
Form 10-K, Exhibit 10-4.)
10-5 - Agreement for the Termination or Construction of
Certain Agreements effective September 1, 1980
among the CAPCO Group. (Registration No. 2-68906,
Exhibit 10-4.)
10-6 - Amendment dated as of December 23, 1993 to
Agreement for the Termination or Construction of
Certain Agreements effective September 1, 1980
among the CAPCO Group. (1993 Form 10-K, Exhibit
10-6.)
10-7 - CAPCO Basic Operating Agreement, as amended
September 1, 1980. (Registration No. 2-68906,
Exhibit 10-5.)
10-8 - Amendment No. 1 dated August 1, 1981, and
Amendment No. 2 dated September 1, 1982 to CAPCO
Basic Operating Agreement, as amended September 1,
1980. (September 30, 1981 Form 10-Q, Exhibit 20-1
and 1982 Form 10-K, Exhibit 19-3, respectively.)
10-9 - Amendment No. 3 dated July 1, 1984 to CAPCO Basic
Operating Agreement, as amended September 1, 1980.
(1985 Form 10-K, Exhibit 10-7.)
10-10 - Basic Operating Agreement between the CAPCO
Companies as amended October 1, 1991. (1991 Form
10-K, Exhibit 10-8.)
-1-
Exhibit
Number
- -------
10-11 - Basic Operating Agreement between the CAPCO
Companies as amended January 1, 1993. (1993 Form
10-K, Exhibit 10-11.)
10-12 - Memorandum of Agreement effective as of September
1, 1980 among the CAPCO Group. (1982 Form 10-K,
Exhibit 19-2.)
10-13 - Operating Agreement for Beaver Valley Power
Station Units Nos. 1 and 2 as Amended and Restated
September 15, 1987, by and between the CAPCO
Companies. (1987 Form 10-K, Exhibit 10-15.)
10-14 - Construction Agreement with respect to Perry Plant
between the CAPCO Group dated as of July 22, 1974.
(Registration No. 2-52251 of Toledo Edison
Company, Exhibit 5(yy).)
10-15 - Participation Agreement No. 1 relating to the
financing of the development of certain coal
mines, dated as of October 1, 1973, among Quarto
Mining Company, the CAPCO Group, Energy
Properties, Inc., General Electric Credit
Corporation, the Loan Participants listed in
Schedules A and B thereto, Central National Bank
of Cleveland, as Owner Trustee, National City
Bank, as Loan Trustee, and Owner Trustee, National
City Bank, as Loan Trustee, and National City
Bank, as Bond Trustee. (Registration No. 2-61146,
Exhibit 5(e)(1).)
10-16 - Amendment No. 1 dated as of September 15, 1978 to
Participation Agreement No. 1 dated as of October
1, 1973 among Quarto Mining Company, the CAPCO
Group, Energy Properties, Inc., General Electric
Credit Corporation, the Loan Participants listed
in Schedules A and B thereto, Central National
Bank of Cleveland as Owner Trustee, National City
Bank as Loan Trustee and National City Bank as
Bond Trustee. (Registration No. 2-68906 of
Pennsylvania Power Company, Exhibit 5(e)(2).)
10-17 - Participation Agreement No. 2 relating to the
financing of the development of certain coal
mines, dated as of August 1, 1974, among Quarto
Mining Company, the CAPCO Group, Energy
Properties, Inc., General Electric Credit
Corporation, the Loan Participants listed in
Schedules A and B thereto, Central National Bank
of Cleveland, as Owner Trustee, National City
Bank, as Loan Trustee, and National City Bank, as
Bond Trustee. (Registration No. 2-53059, Exhibit
5(h)(2).)
10-18 - Amendment No. 1 dated as of September 15, 1978 to
Participation Agreement No. 2 dated as of August
1, 1974 among Quarto Mining Company, the CAPCO
-2-
Exhibit
Number
- -------
Group, Energy Properties, Inc., General Electric
Credit Corporation, the Loan Participants listed
in Schedules A and B thereto, Central National
Bank of Cleveland as Owner Trustee, National City
Bank as Loan Trustee and National City Bank as
Bond Trustee. (Registration No. 2-68906 of
Pennsylvania Power Company, Exhibit 5(e)(4).)
10-19 - Participation Agreement No. 3 dated as of
September 15, 1978 among Quarto Mining Company,
the CAPCO Companies, Energy Properties, Inc.,
General Electric Credit Corporation, the Loan
Participants listed in Schedules A and B thereto,
Central National Bank of Cleveland as Owner
Trustee, and National City Bank as Loan Trustee
and Bond Trustee. (Registration No. 2-68906 of
Pennsylvania Power Company, Exhibit 5(e)(5).)
10-20 - Participation Agreement No. 4 dated as of
October 31, 1980 among Quarto Mining Company, the
CAPCO Group, the Loan Participants listed in
Schedule A thereto and National City Bank as Bond
Trustee. (Registration No. 2- 68906 of
Pennsylvania Power Company, Exhibit 10-16.)
10-21 - Participation Agreement dated as of May 1, 1986,
among Quarto Mining Company, the CAPCO Companies,
the Loan Participants thereto, and National City
Bank as Bond Trustee. (1986 Form 10-K, Exhibit
10-22.)
10-22 - Participation Agreement No. 6 dated as of
December 1, 1991 among Quarto Mining Company, The
Cleveland Electric Illuminating Company, Duquesne
Light Company, Ohio Edison Company, Pennsylvania
Power Company, the Toledo Edison Company, the Loan
Participants listed in Schedule A thereto,
National City Bank, as Mortgage Bond Trustee and
National City Bank, as Refunding Bond Trustee.
(1991 Form 10-K, Exhibit 10-19.)
10-23 - Agreement entered into as of October 20, 1981
among the CAPCO Companies regarding the use of
Quarto coal at Mansfield Units 1, 2 and 3. (1981
Form 10-K, Exhibit 20-1.)
10-24 - Restated Option Agreement dated as of May 1, 1983
by and between the North American Coal Corporation
and the CAPCO Companies. (1983 Form 10-K, Exhibit
19-1.)
10-25 - Trust Indenture and Mortgage dated as of
October 1, 1973 between Quarto Mining Company and
National City Bank, as Bond Trustee, together with
Guaranty dated as of October 1, 1973 with respect
thereto by the CAPCO Group. (Registration No. 2-
61146, Exhibit 5(e)(5).)
-3-
Exhibit
Number
- -------
10-26 - Amendment No. 1 dated August 1, 1974 to Trust
Indenture and Mortgage dated as of October 1, 1973
between Quarto Mining Company and National City
Bank, as Bond Trustee, together with Amendment
No.1 dated August 1, 1974 to Guaranty dated as of
October 1, 1973 with respect thereto by the CAPCO
Group. (Registration No. 2-53059, Exhibit
5(h)(2).)
10-27 - Amendment No. 2 dated as of September 15, 1978 to
the Trust Indenture and Mortgage dated as of
October 1, 1973, as amended, between Quarto Mining
Company and National City Bank, as Bond Trustee,
together with Amendment No. 2 dated as of
September 15, 1978 to Guaranty dated as of
October 1, 1973 with respect to the CAPCO Group.
(Registration No. 2-68906 of Pennsylvania Power
Company, Exhibits 5(e)(11) and 5(e)(12).)
10-28 - Amendment No. 3 dated as of October 31, 1980, to
Trust Indenture and Mortgage dated as of
October 1, 1973, as amended between Quarto Mining
Company and National City Bank as Bond
Trustee.(Registration No. 2-68906 of Pennsylvania
Power Company, Exhibit 10-16.)
10-29 - Amendment No. 4 dated as of July 1, 1985 to the
Trust Indenture and Mortgage dated as of
October 1, 1973, as amended between Quarto Mining
Company and National City Bank as Bond Trustee.
(1985 Form 10-K, Exhibit 10-28.)
10-30 - Amendment No. 5 dated as of May 1, 1986, to the
Trust Indenture and Mortgage between Quarto and
National City Bank as Bond Trustee. (1986 Form
10-K, Exhibit 10-30.)
10-31 - Amendment No. 6 dated as of December 1, 1991, to
the Trust Indenture and Mortgage dated as of
October 1, 1973, between Quarto Mining Company and
National City Bank, as Bond Trustee. (1991 Form
10-K, Exhibit 10-28.)
10-32 - Trust Indenture dated as of December 1, 1991,
between Quarto Mining Company and National City
Bank, as Bond Trustee. (1991 Form 10-K, Exhibit
10-29.)
10-33 - Amendment No. 3 dated as of October 31, 1980 to
the Bond Guaranty dated as of October 1, 1973, as
amended, with respect to the CAPCO Group.
(Registration No. 2- 68906 of Pennsylvania Power
Company, Exhibit 10-16.)
10-34 - Amendment No. 4 dated as of July 1, 1985 to the
Bond Guaranty dated as of October 1, 1973, as
amended, by the CAPCO Companies to National City
Bank as Bond Trustee. (1985 Form 10-K, Exhibit
10-30.)
-4-
Exhibit
Number
- -------
10-35 - Amendment No. 5 dated as of May 1, 1986, to the
Bond Guaranty by the CAPCO Companies to National
City Bank as Bond Trustee. (1986 Form 10-K,
Exhibit 10-33.)
10-36 - Amendment No. 6A dated as of December 1, 1991, to
the Bond Guaranty dated as of October 1, 1973, by
The Cleveland Electric Illuminating Company,
Duquesne Light Company, Ohio Edison Company,
Pennsylvania Power Company, the Toledo Edison
Company to National City Bank, as Bond Trustee.
(1991 Form 10-K, Exhibit 10-33.)
10-37 - Amendment No. 6B dated as of December 30, 1991, to
the Bond Guaranty dated as of October 1, 1973 by
The Cleveland Electric Illuminating Company,
Duquesne Light Company, Ohio Edison Company,
Pennsylvania Power Company, the Toledo Edison
Company to National City Bank, as Bond Trustee.
(1991 Form 10-K, Exhibit 10-34.)
10-38 - Bond Guaranty dated as of December 1, 1991, by The
Cleveland Electric Illuminating Company, Duquesne
Light Company, Ohio Edison Company,
PennsylvaniaPower Company, the Toledo Edison
Company to National City Bank, as Bond Trustee.
(1991 Form 10-K, Exhibit 10-35.)
10-39 - Open end Mortgage dated as of October 1, 1973
between Quarto Mining Company and the CAPCO
Companies and Amendment No. 1 thereto, dated as of
September 15, 1978. (Registration No. 2-68906 of
Pennsylvania Power Company, Exhibit 10-23.)
10-40 - Repayment and Security Agreement and Assignment of
Lease dated as of October 1, 1973 between Quarto
Mining Company and Ohio Edison Company as Agent
for the CAPCO Companies and Amendment No. 1
thereto, dated as of September 15, 1978. (1980
Form 10-K, Exhibit 20-2.)
10-41 - Restructuring Agreement dated as of April 1, 1985
among Quarto Mining Company, the Company and the
other CAPCO Companies, Energy Properties, Inc.,
General Electric Credit Corporation, the Loan
Participants signatories thereto, Central National
Bank of Cleveland, as Owner Trustee and National
City Bank as Loan Trustee and Bond Trustee. (1985
Form 10-K, Exhibit 10-33.)
10-42 - Unsecured Note Guaranty dated as of July 1, 1985
by the CAPCO Companies to General Electric Credit
Corporation. (1985 Form 10-K, Exhibit 10-34.)
10-43 - Memorandum of Understanding dated March 31, 1985
among the CAPCO Companies. (1985 Form 10-K,
Exhibit 10-35.)
-5-
Exhibit
Number
- -------
(C) 10-44 - Ohio Edison Company Executive Incentive
Compensation Plan. (1984 Form 10-K, Exhibit 19-2.)
(C) 10-45 - Ohio Edison Company Executive Incentive
Compensation Plan as amended February 16, 1987.
(1986 Form 10-K, Exhibit 10-40.)
(C) 10-46 - Restated and Amended Executive Deferred
Compensation Plan. (1989 Form 10-K, Exhibit
10-36.)
(C) 10-47 - Restated and Amended Supplemental Executive
Retirement Plan. (1989 Form 10-K, Exhibit 10-37).
(D) 10-48 - Participation Agreement dated as of March 16, 1987
among Perry One Alpha Limited Partnership, as
Owner Participant, the Original Loan Participants
listed in Schedule 1 Hereto, as Original Loan
Participants, PNPP Funding Corporation, as Funding
Corporation, The First National Bank of Boston, as
Owner Trustee, Irving Trust Company, as Indenture
Trustee and Ohio Edison Company, as Lessee. (1986
Form 10-K, Exhibit 28-1.)
(D) 10-49 - Amendment No. 1 dated as of September 1, 1987 to
Participation Agreement dated as of March 16, 1987
among Perry One Alpha Limited Partnership, as
Owner Participant, the Original Loan Participants
listed in Schedule 1 thereto, as Original Loan
Participants, PNPP Funding Corporation, as Funding
Corporation, The First National Bank of Boston, as
Owner Trustee, Irving Trust Company (now The Bank
of New York), as Indenture Trustee, and Ohio
Edison Company, as Lessee. (1991 Form 10-K,
Exhibit 10-46.)
(D) 10-50 - Amendment No. 3 dated as of May 16, 1988 to
Participation Agreement dated as of March 16,
1987, as amended among Perry One Alpha Limited
Partnership, as Owner Participant, PNPP Funding
Corporation, The First National Bank of Boston, as
Owner Trustee, Irving Trust Company, as Indenture
Trustee, and Ohio Edison Company, as Lessee. (1992
Form 10-K, Exhibit 10-47.)
(D) 10-51 - Amendment No. 4 dated as of November 1, 1991 to
Participation Agreement dated as of March 16, 1987
among Perry One Alpha Limited Partnership, as
Owner Participant, PNPP Funding Corporation, as
Funding Corporation, PNPP II Funding Corporation,
as New Funding Corporation, The First National
Bank of Boston, as Owner Trustee, The Bank of New
York, as Indenture Trustee and Ohio Edison
Company, as Lessee. (1991 Form 10-K, Exhibit 10-
47.)
-6-
Exhibit
Number
- -------
(D) 10-52 - Amendment No. 5 dated as of November 24, 1992 to
Participation Agreement dated as of March 16,
1987, as amended, among Perry One Alpha Limited
Partnership, as Owner Participant, PNPP Funding
Corporation, as Funding Corporation, PNPPII
Funding Corporation, as New Funding Corporation,
The First National Bank of Boston, as Owner
Trustee, The Bank of New York, as Indenture
Trustee and Ohio Edison Company as Lessee. (1992
Form 10-K, Exhibit 10-49.)
(D) 10-53 - Amendment No. 6 dated as of January 12, 1993 to
Participation Agreement dated as of March 16, 1987
among Perry One Alpha Limited Partnership, as
Owner Participant, PNPP Funding Corporation, as
Funding Corporation, PNPP II Funding Corporation,
as New Funding Corporation, The First National
Bank of Boston, as Owner Trustee, The Bank of New
York, as Indenture Trustee and Ohio Edison
Company, as Lessee. (1992 Form 10-K, Exhibit 10-
50.)
(A)(D) 10-54 - Amendment No. 7 dated as of October 12, 1994 to
Participation Agreement dated as of March 16, 1987
as amended, among Perry One Alpha Limited
Partnership, as Owner Participant, PNPP Funding
Corporation, as Funding Corporation, PNPP II
Funding Corporation, as New Funding Corporation,
The First National Bank of Boston, as Owner
Trustee, The Bank of New York, as Indenture
Trustee and Ohio Edison Company, as Lessee.
(D) 10-55 - Facility Lease dated as of March 16, 1987 between
The First National Bank of Boston, as Owner
Trustee, with Perry One Alpha Limited Partnership,
Lessor, and Ohio Edison Company, Lessee. (1986
Form 10-K, Exhibit 28-2.)
(D) 10-56 - Amendment No. 1 dated as of September 1, 1987 to
Facility Lease dated as of March 16, 1987 between
The First National Bank of Boston, as Owner
Trustee, Lessor and Ohio Edison Company, Lessee.
(1991 Form 10-K, Exhibit 10-49.)
(D) 10-57 - Amendment No. 2 dated as of November 1, 1991, to
Facility Lease dated as of March 16, 1987, between
The First National Bank of Boston, as Owner
Trustee, Lessor and Ohio Edison Company, Lessee.
(1991 Form 10-K, Exhibit 10-50.)
(D) 10-58 - Amendment No. 3 dated as of November 24, 1992 to
Facility Lease dated as of March 16, 1987, as
amended, between The First National Bank of
Boston, as Owner Trustee, with Perry One Alpha
Limited Partnership, as Owner Participant and Ohio
Edison Company, as Lessee. (1992 Form 10-K,
Exhibit 10-54.)
-7-
Exhibit
Number
- -------
(A)(D) 10-59 - Amendment No. 4 dated as of January 12, 1993 to
Facility Lease dated as of March 16, 1987 as
amended, between, The First National Bank of
Boston, as Owner Trustee, with Perry One Alpha
Limited Partnership, as Owner Participant, and
Ohio Edison Company, as Lessee.
(A)(D) 10-60 - Amendment No. 5 dated as of October 12, 1994 to
Facility Lease dated as of March 16, 1987 as
amended, between, The First National Bank of
Boston, as Owner Trustee, with Perry One Alpha
Limited Partnership, as Owner Participant, and
Ohio Edison Company, as Lessee.
(D) 10-61 - Letter Agreement dated as of March 19, 1987
between Ohio Edison Company, Lessee, and The First
National Bank of Boston, as Owner Trustee under a
Trust dated March 16, 1987 with Chase Manhattan
Realty Leasing Corporation, required by Section
3(d) of the Facility Lease. (1986 Form 10-K,
Exhibit 28-3.)
(D) 10-62 - Ground Lease dated as of March 16, 1987 between
Ohio Edison Company, Ground Lessor, and The First
National Bank of Boston, as Owner Trustee under a
Trust Agreement, dated as of March 16, 1987, with
the Owner Participant, Tenant. (1986 Form 10-K,
Exhibit 28-4.)
(D) 10-63 - Trust Agreement dated as of March 16, 1987 between
Perry One Alpha Limited Partnership, as Owner
Participant, and The First National Bank of
Boston. (1986 Form 10-K, Exhibit 28-5.)
(D) 10-64 - Trust Indenture, Mortgage, Security Agreement and
Assignment of Facility Lease dated as of March 16,
1987 between The First National Bank of Boston, as
Owner Trustee under a Trust Agreement dated as of
March 16, 1987 with Perry One Alpha Limited
Partnership, and Irving Trust Company, as
Indenture Trustee. (1986 Form 10-K, Exhibit 28-6.)
(D) 10-65 - Supplemental Indenture No. 1 dated as of
September 1, 1987 to Trust Indenture, Mortgage,
Security Agreement and Assignment of Facility
Lease dated as of March 16, 1987 between The First
National Bank of Boston as Owner Trustee and
Irving Trust Company (now The Bank of New York),
as Indenture Trustee. (1991 Form 10-K, Exhibit 10-
55.)
(D) 10-66 - Supplemental Indenture No. 2 dated as of
November 1, 1991 to Trust Indenture, Mortgage,
Security Agreement and Assignment of Facility
Lease dated as of March 16, 1987 between The First
National Bank of Boston, as Owner Trustee and The
Bank of New York, as Indenture Trustee. (1991 Form
10-K, Exhibit 10-56.)
-8-
Exhibit
Number
- -------
(D) 10-67 - Tax Indemnification Agreement dated as of
March 16, 1987 between Perry One, Inc. and PARock
Limited Partnership as General Partners and Ohio
Edison Company, as Lessee. (1986 Form 10-K,
Exhibit 28-7.)
(D) 10-68 - Amendment No. 1 dated as of November 1, 1991 to
Tax Indemnification Agreement dated as of
March 16, 1987 between Perry One, Inc. and Parock
Limited Partnership and Ohio Edison Company. (1991
Form 10-K, Exhibit 10-58.)
(A)(D) 10-69 - Amendment No. 2 dated as of January 12, 1993 to
Tax Indemnification Agreement dated as of
March 16, 1987 between Perry One, Inc. and Parock
Limited Partnership and Ohio Edison Company.
(A)(D) 10-70 - Amendment No. 3 dated as of October 12, 1994 to
Tax Indemnification Agreement dated as of
March 16, 1987 between Perry One, Inc. and Parock
Limited Partnership and Ohio Edison Company.
(D) 10-71 - Partial Mortgage Release dated as of March 19,
1987 under the Indenture between Ohio Edison
Company and Bankers Trust Company, as Trustee,
dated as of the 1st day of August, 1930. (1986
Form 10-K, Exhibit 28-8.)
(D) 10-72 - Assignment, Assumption and Further Agreement dated
as of March 16, 1987 among The First National Bank
of Boston, as Owner Trustee under a Trust
Agreement, dated as of March 16, 1987, with Perry
One Alpha Limited Partnership, The Cleveland
Electric Illuminating Company, Duquesne Light
Company, Ohio Edison Company, Pennsylvania Power
Company and Toledo Edison Company. (1986 Form
10-K, Exhibit 28-9.)
(D) 10-73 - Additional Support Agreement dated as of March 16,
1987 between The First National Bank of Boston, as
Owner Trustee under a Trust Agreement, dated as of
March 16, 1987, with Perry One Alpha Limited
Partnership, and Ohio Edison Company. (1986 Form
10-K, Exhibit 28-10.)
(D) 10-74 - Bill of Sale, Instrument of Transfer and Severance
Agreement dated as of March 19, 1987 between Ohio
Edison Company, Seller, and The First National
Bank of Boston, as Owner Trustee under a Trust
Agreement, dated as of March 16, 1987, with Perry
One Alpha Limited Partnership. (1986 Form 10-K,
Exhibit 28- 11.)
(D) 10-75 - Easement dated as of March 16, 1987 from Ohio
Edison Company, Grantor, to The First National
Bank of Boston, as Owner Trustee under a Trust
Agreement, dated as of March 16, 1987, with Perry
One Alpha Limited Partnership, Grantee. (1986 Form
10-K, File Exhibit 28-12.)
-9-
Exhibit
Number
- -------
10-76 - Participation Agreement dated as of March 16, 1987
among Security Pacific Capital Leasing
Corporation, as Owner Participant, the Original
Loan Participants listed in Schedule 1 Hereto, as
Original Loan Participants, PNPP Funding
Corporation, as Funding Corporation, The First
National Bank of Boston, as Owner Trustee, Irving
Trust Company, as Indenture Trustee and Ohio
Edison Company, as Lessee. (1986 Form 10-K, as
Exhibit 28-13.)
10-77 - Amendment No. 1 dated as of September 1, 1987 to
Participation Agreement dated as of March 16, 1987
among Security Pacific Capital Leasing
Corporation, as Owner Participant, The Original
Loan Participants Listed in Schedule 1 thereto, as
Original Loan Participants, PNPP Funding
Corporation, as Funding Corporation, The First
National Bank of Boston, as Owner Trustee, Irving
Trust Company, as Indenture Trustee and Ohio
Edison Company, as Lessee. (1991 Form 10-K,
Exhibit 10-65.)
10-78 - Amendment No. 4 dated as of November 1, 1991, to
Participation Agreement dated as of March 16, 1987
among Security Pacific Capital Leasing
Corporation, as Owner Participant, PNPP Funding
Corporation, as Funding Corporation, PNPP II
Funding Corporation, as New Funding Corporation,
The First National Bank of Boston, as Owner
Trustee, The Bank of New York, as Indenture
Trustee and Ohio Edison Company, as Lessee. (1991
Form 10-K, Exhibit 10-66.)
10-79 - Amendment No. 5 dated as of November 24, 1992 to
Participation Agreement dated as of March 16, 1987
as amended among Security Pacific Capital Leasing
Corporation, as Owner Participant, PNPP Funding
Corporation, as Funding Corporation, PNPP II
Funding Corporation, as New Funding Corporation,
The First National Bank of Boston, as Owner
Trustee, The Bank of New York, as Indenture
Trustee and Ohio Edison Company, as Lessee. (1992
Form 10-K, Exhibit 10-71.)
(A) 10-80 - Amendment No. 6 dated as of January 12, 1993 to
Participation Agreement dated as of March 16, 1987
as amended among Security Pacific Capital Leasing
Corporation, as Owner Participant, PNPP Funding
Corporation, as Funding Corporation, PNPP II
Funding Corporation, as New Funding Corporation,
The First National Bank of Boston, as Owner
Trustee, The Bank of New York, as Indenture
Trustee and Ohio Edison Company, as Lessee.
(A) 10-81 - Amendment No. 7 dated as of October 12, 1994 to
Participation Agreement dated as of March 16, 1987
-10-
Exhibit
Number
- -------
as amended among Security Pacific Capital Leasing
Corporation, as Owner Participant, PNPP Funding
Corporation, as Funding Corporation, PNPP II
Funding Corporation, as New Funding Corporation,
The First National Bank of Boston, as Owner
Trustee, The Bank of New York, as Indenture
Trustee and Ohio Edison Company, as Lessee.
10-82 - Facility Lease dated as of March 16, 1987 between
The First National Bank of Boston, as Owner
Trustee, with Security Pacific Capital
LeasingCorporation, Lessor, and Ohio Edison
Company, as Lessee. (1986 Form 10-K, Exhibit 28-
14.)
10-83 - Amendment No. 1 dated as of September 1, 1987 to
Facility Lease dated as of March 16, 1987 between
The First National Bank of Boston as Owner
Trustee, Lessor and Ohio Edison Company, Lessee.
(1991 Form 10-K, Exhibit 10-68.)
10-84 - Amendment No. 2 dated as of November 1, 1991 to
Facility Lease dated as of March 16, 1987 between
The First National Bank of Boston as Owner
Trustee, Lessor and Ohio Edison Company, Lessee.
(1991 Form 10-K, Exhibit 10-69.)
10-85 - Amendment No. 3 dated as of November 24, 1992 to
Facility Lease dated as of March 16, 1987, as
amended, between, The First National Bank of
Boston, as Owner Trustee, with Security Pacific
Capital Leasing Corporation, as Owner Participant
and Ohio Edison Company, as Lessee. (1992 Form
10-K, Exhibit 10-75.)
10-86 - Amendment No. 4 dated as of January 12, 1993 to
Facility Lease dated as of March 16, 1987 as
amended between, The First National Bank of
Boston, as Owner Trustee, with Security Pacific
Capital Leasing Corporation, as Owner Participant,
and Ohio Edison Company, as Lessee. (1992 Form
10-K, Exhibit 10-76.)
(A) 10-87 - Amendment No. 5 dated as of October 12, 1994 to
Facility Lease dated as of March 16, 1987 as
amended between, The First National Bank of
Boston, as Owner Trustee, with Security Pacific
Capital Leasing Corporation, as Owner Participant,
and Ohio Edison Company, as Lessee.
10-88 - Letter Agreement dated as of March 19, 1987
between Ohio Edison Company, as Lessee, and The
First National Bank of Boston, as Owner Trustee
under a Trust, dated as of March 16, 1987, with
Security Pacific Capital Leasing Corporation,
required by Section 3(d) of the Facility Lease.
(1986 Form 10-K, Exhibit 28-15.)
-11-
Exhibit
Number
- -------
10-89 - Ground Lease dated as of March 16, 1987 between
Ohio Edison Company, Ground Lessor, and The First
National Bank of Boston, as Owner Trustee under a
Trust Agreement, dated as of March 16, 1987, with
Perry One Alpha Limited Partnership, Tenant. (1986
Form 10-K, Exhibit 28-16.)
10-90 - Trust Agreement dated as of March 16, 1987 between
Security Pacific Capital Leasing Corporation, as
Owner Participant, and The First National Bank of
Boston. (1986 Form 10-K, Exhibit 28-17.)
10-91 - Trust Indenture, Mortgage, Security Agreement and
Assignment of Facility Lease dated as of March 16,
1987 between The First National Bank of Boston, as
Owner Trustee under a Trust Agreement, dated as of
March 16, 1987, with Security Pacific Capital
Leasing Corporation, and Irving Trust Company, as
Indenture Trustee. (1986 Form 10-K, Exhibit 28-
18.)
10-92 - Supplemental Indenture No. 1 dated as of
September 1, 1987 to Trust Indenture, Mortgage,
Security Agreement and Assignment of Facility
Lease dated as of March 16, 1987 between The First
National Bank of Boston, as Owner Trustee and
Irving Trust Company (now The Bank of New York),
as Indenture Trustee. (1991 Form 10-K, Exhibit 10-
74.)
10-93 - Supplemental Indenture No. 2 dated as of
November 1, 1991 to Trust Indenture, Mortgage,
Security Agreement and Assignment of Facility
Lease dated as of March 16, 1987 between The First
National Bank of Boston, as Owner Trustee and The
Bank of New York, as Indenture Trustee. (1991 Form
10-K, Exhibit 10-75.)
10-94 - Tax Indemnification Agreement dated as of
March 16, 1987 between Security Pacific Capital
Leasing Corporation, as Owner Participant, and
Ohio Edison Company, as Lessee. (1986 Form 10-K,
Exhibit 28-19.)
10-95 - Amendment No. 1 dated as of November 1, 1991 to
Tax Indemnification Agreement dated as of
March 16, 1987 between Security Pacific Capital
Leasing Corporation and Ohio Edison Company. (1991
Form 10-K, Exhibit 10-77.)
(A) 10-96 - Amendment No. 2 dated as of January 12, 1993 to
Tax Indemnification Agreement dated as of
March 16, 1987 between Security Pacific Capital
Leasing Corporation and Ohio Edison Company.
(A) 10-97 - Amendment No. 3 dated as of October 12, 1994 to
Tax Indemnification Agreement dated as of
March 16, 1987 between Security Pacific Capital
Leasing Corporation and Ohio Edison Company.
-12-
Exhibit
Number
- -------
10-98 - Assignment, Assumption and Further Agreement dated
as of March 16, 1987 among The First National Bank
of Boston, as Owner Trustee under a Trust
Agreement, dated as of March 16, 1987, with
Security Pacific Capital Leasing Corporation, The
Cleveland Electric Illuminating Company, Duquesne
Light Company, Ohio Edison Company, Pennsylvania
Power Company and Toledo Edison Company. (1986
Form 10-K, Exhibit 28-20.)
10-99 - Additional Support Agreement dated as of March 16,
1987 between The First National Bank of Boston, as
Owner Trustee under a Trust Agreement, dated as of
March 16, 1987, with Security Pacific Capital
Leasing Corporation, and Ohio Edison Company.
(1986 Form 10-K, Exhibit 28-21.)
10-100 - Bill of Sale, Instrument of Transfer and Severance
Agreement dated as of March 19, 1987 between Ohio
Edison Company, Seller, and The First National
Bank of Boston, as Owner Trustee under a Trust
Agreement, dated as of March 16, 1987, with
Security Pacific Capital Leasing Corporation,
Buyer. (1986 Form 10-K, Exhibit 28-22.)
10-101 - Easement dated as of March 16, 1987 from Ohio
Edison Company, Grantor, to The First National
Bank of Boston, as Owner Trustee under a Trust
Agreement, dated as of March 16, 1987, with
Security Pacific Capital Leasing Corporation,
Grantee. (1986 Form 10-K, Exhibit 28-23.)
10-102 - Refinancing Agreement dated as of November 1, 1991
among Perry One Alpha Limited Partnership, as
Owner Participant, PNPP Funding Corporation, as
Funding Corporation, PNPP II Funding Corporation,
as New Funding Corporation, The First National
Bank of Boston, as Owner Trustee, The Bank of New
York, as Indenture Trustee, The Bank of New York,
as Collateral Trust Trustee, The Bank of New York,
as New Collateral Trust Trustee and Ohio Edison
Company, as Lessee. (1991 Form 10-K, Exhibit 10-
82.)
10-103 - Refinancing Agreement dated as of November 1, 1991
among Security Pacific Leasing Corporation, as
Owner Participant, PNPP Funding Corporation, as
Funding Corporation, PNPP II Funding Corporation,
as New Funding Corporation, The First National
Bank of Boston, as Owner Trustee, The Bank of New
York, as Indenture Trustee, The Bank of New York,
as Collateral Trust Trustee, The Bank of New York,
as New Collateral Trust Trustee and Ohio Edison
Company, as Lessee. (1991 Form 10-K, Exhibit 10-
83.)
-13-
Exhibit
Number
- -------
10-104 - Ohio Edison Company Master Decommissioning Trust
Agreement for Perry Nuclear Power Plant Unit One,
Perry Nuclear Power Plant Unit Two, Beaver Valley
Power Station Unit One and Beaver Valley Power
Station Unit Two dated July 1, 1993. (1993
Form 10-K, Exhibit 10-94.)
10-105 - Nuclear Fuel Lease dated as of March 31, 1989,
between OES Fuel, Incorporated, as Lessor, and
Ohio Edison Company, as Lessee. (1989 Form 10-K,
Exhibit 10-62.)
(A) 10-106 - Receivables Purchase Agreement dated as
November 28, 1989, as amended and restated as of
April 23, 1993, between OES Capital, Incorporated,
Corporate Asset Funding Company, Inc. and Citicorp
North America, Inc.
10-107 - Guarantee Agreement entered into by Ohio Edison
Company dated as of January 17, 1991. (1990 Form
10-K, Exhibit 10-64).
10-108 - Transfer and Assignment Agreement among Ohio
Edison Company and Chemical Bank, as trustee under
the OE Power Contract Trust. (1990 Form 10-K,
Exhibit 10-65).
10-109 - Renunciation of Payments and Assignment among Ohio
Edison Company, Monongahela Power Company, West
Penn Power Company, and the Potomac Edison Company
dated as of January 4, 1991. (1990 Form 10-K,
Exhibit 10-66).
(A) 10-110 - Transfer and Assignment Agreement dated May 20,
1994 among Ohio Edison Company and Chemical Bank,
as trustee under the OE Power Contract Trust.
(A) 10-111 - Renunciation of Payments and Assignment among Ohio
Edison Company, Monongahela Power Company, West
Penn Power Company, and the Potomac Edison Company
dated as of May 20, 1994.
(A) 10-112 - Transfer and Assignment Agreement dated
October 12, 1994 among Ohio Edison Company and
Chemical Bank, as trustee under the OE Power
Contract Trust.
(A) 10-113 - Renunciation of Payments and Assignment among Ohio
Edison Company, Monongahela Power Company, West
Penn Power Company, and the Potomac Edison Company
dated as of October 12, 1994.
(E) 10-114 - Participation Agreement dated as of September 15,
1987, among Beaver Valley Two Pi Limited
Partnership, as Owner Participant, the Original
Loan Participants listed in Schedule 1 Thereto, as
Original Loan Participants, BVPS Funding
-14-
Exhibit
Number
- -------
Corporation, as Funding Corporation, The First
National Bank of Boston, as Owner Trustee, Irving
Trust Company, as Indenture Trustee and Ohio
Edison Company, as Lessee. (1987 Form 10-K,
Exhibit 28-1.)
(E) 10-115 - Amendment No. 1 dated as of February 1, 1988, to
Participation Agreement dated as of September 15,
1987, among Beaver Valley Two Pi Limited
Partnership, as Owner Participant, the Original
Loan Participants listed in Schedule 1 Thereto, as
Original Loan Participants, BVPS Funding
Corporation, as Funding Corporation, The First
National Bank of Boston, as Owner Trustee, Irving
Trust Company, as Indenture Trustee and Ohio
Edison Company, as Lessee. (1987 Form 10-K,
Exhibit 28-2.)
(E) 10-116 - Amendment No. 3 dated as of March 16, 1988 to
Participation Agreement dated as of September 15,
1987, as amended, among Beaver Valley Two Pi
Limited Partnership, as Owner Participant, BVPS
Funding Corporation, The First National Bank of
Boston, as Owner Trustee, Irving Trust Company, as
Indenture Trustee and Ohio Edison Company, as
Lessee. (1992 Form 10-K, Exhibit 10-99.)
(E) 10-117 - Amendment No. 4 dated as of November 5, 1992 to
Participation Agreement dated as of September 15,
1987, as amended, among Beaver Valley Two Pi
Limited Partnership, as Owner Participant, BVPS
Funding Corporation, BVPS II Funding Corporation,
The First National Bank of Boston, as Owner
Trustee, The Bank of New York, as Indenture
Trustee and Ohio Edison Company, as Lessee. (1992
Form 10-K, Exhibit 10-100.)
(A)(E) 10-118 - Amendment No. 5 dated as of September 30, 1994 to
Participation Agreement dated as of September 15,
1987, as amended, among Beaver Valley Two Pi
Limited Partnership, as Owner Participant, BVPS
Funding Corporation, BVPS II Funding Corporation,
The First National Bank of Boston, as Owner
Trustee, The Bank of New York, as Indenture
Trustee and Ohio Edison Company, as Lessee.
(E) 10-119 - Facility Lease dated as of September 15, 1987,
between The First National Bank of Boston, as
Owner Trustee, with Beaver Valley Two Pi Limited
Partnership, Lessor, and Ohio Edison Company,
Lessee. (1987 Form 10-K, Exhibit 28-3.)
(E) 10-120 - Amendment No. 1 dated as of February 1, 1988, to
Facility Lease dated as of September 15, 1987,
between The First National Bank of Boston, as
Owner Trustee, with Beaver Valley Two Pi Limited
Partnership, Lessor, and Ohio Edison Company,
Lessee. (1987 Form 10-K, Exhibit 28-4.)
-15-
Exhibit
Number
- -------
(E) 10-121 - Amendment No. 2 dated as of November 5, 1992 to
Facility Lease dated as of September 15, 1987, as
amended, between The First National Bank of
Boston, as Owner Trustee, with Beaver Valley Two
Pi Limited Partnership, as Owner Participant, and
Ohio Edison Company, as Lessee. (1992 Form 10-K,
Exhibit 10-103.)
(A)(E) 10-122 - Amendment No. 3 dated as of September 30, 1994 to
Facility Lease dated as of September 15, 1987, as
amended, between The First National Bank of
Boston, as Owner Trustee, with Beaver Valley Two
Pi Limited Partnership, as Owner Participant, and
Ohio Edison Company, as Lessee.
(E) 10-123 - Ground Lease and Easement Agreement dated as of
September 15, 1987, between Ohio Edison Company,
Ground Lessor, and The First National Bank of
Boston, as Owner Trustee under a Trust Agreement,
dated as of September 15, 1987, with Beaver Valley
Two Pi Limited Partnership, Tenant. (1987 Form
10-K, Exhibit 28- 5.)
(E) 10-124 - Trust Agreement dated as of September 15, 1987,
between Beaver Valley Two Pi Limited Partnership,
as Owner Participant, and The First National Bank
of Boston. (1987 Form 10-K, Exhibit 28-6.)
(E) 10-125 - Trust Indenture, Mortgage, Security Agreement and
Assignment of Facility Lease dated as of
September 15, 1987, between The First National
Bank of Boston, as Owner Trustee under a Trust
Agreement dated as of September 15, 1987, with
Beaver Valley Two Pi Limited Partnership, and
Irving Trust Company, as Indenture Trustee. (1987
Form 10-K, Exhibit 28-7.)
(E) 10-126 - Supplemental Indenture No. 1 dated as of
February 1, 1988 to Trust Indenture, Mortgage,
Security Agreement and Assignment of Facility
Lease dated as of September 15, 1987 between The
First National Bank of Boston, as Owner Trustee
under a Trust Agreement dated as of September 15,
1987 with Beaver Valley Two Pi Limited Partnership
and Irving Trust Company, as Indenture Trustee.
(1987 Form 10-K, Exhibit 28-8.)
(E) 10-127 - Tax Indemnification Agreement dated as of
September 15, 1987, between Beaver Valley Two Pi
Inc. and PARock Limited Partnership as General
Partners and Ohio Edison Company, as Lessee. (1987
Form 10-K, Exhibit 28-9.)
(A)(E) 10-128 - Amendment No. 1 dated as of November 5, 1992 to
Tax Indemnification Agreement dated as of
September 15, 1987, between Beaver Valley Two Pi
Inc. and PARock Limited Partnership as General
Partners and Ohio Edison Company, as Lessee.
-16-
Exhibit
Number
- -------
(A)(E) 10-129 - Amendment No. 2 dated as of September 30, 1994 to
Tax Indemnification Agreement dated as of
September 15, 1987, between Beaver Valley Two Pi
Inc. and PARock Limited Partnership as General
Partners and Ohio Edison Company, as Lessee.
(E) 10-130 - Tax Indemnification Agreement dated as of
September 15, 1987, between HG Power Plant, Inc.,
as Limited Partner and Ohio Edison Company, as
Lessee. (1987 Form 10-K, Exhibit 28-10.)
(A)(E) 10-131 - Amendment No. 1 dated as of November 5, 1992 to
Tax Indemnification Agreement dated as of
September 15, 1987, between HG Power Plant, Inc.,
as Limited Partner and Ohio Edison Company, as
Lessee.
(A)(E) 10-132 - Amendment No. 2 dated as of September 30, 1994 to
Tax Indemnification Agreement dated as of
September 15, 1987, between HG Power Plant, Inc.,
as Limited Partner and Ohio Edison Company, as
Lessee.
(E) 10-133 - Assignment, Assumption and Further Agreement dated
as of September 15, 1987, among The First National
Bank of Boston, as Owner Trustee under a Trust
Agreement, dated as of September 15, 1987, with
Beaver Valley Two Pi Limited Partnership, The
Cleveland Electric Illuminating Company, Duquesne
Light Company, Ohio Edison Company, Pennsylvania
Power Company and Toledo Edison Company. (1987
Form 10-K, Exhibit 28-11.)
(E) 10-134 - Additional Support Agreement dated as of
September 15, 1987, between The First National
Bank of Boston, as Owner Trustee under a Trust
Agreement, dated as of September 15, 1987, with
Beaver Valley Two Pi Limited Partnership, and Ohio
Edison Company. (1987 Form 10-K, Exhibit 28-12.)
(F) 10-135 - Participation Agreement dated as of September 15,
1987, among Chrysler Consortium Corporation, as
Owner Participant, the Original Loan Participants
listed in Schedule 1 Thereto, as Original Loan
Participants, BVPS Funding Corporation, as Funding
Corporation, The First National Bank of Boston, as
Owner Trustee, Irving Trust Company, as Indenture
Trustee and Ohio Edison Company, as Lessee. (1987
Form 10-K, Exhibit 28-13.)
(F) 10-136 - Amendment No. 1 dated as of February 1, 1988, to
Participation Agreement dated as of September 15,
1987, among Chrysler Consortium Corporation, as
Owner Participant, the Original Loan Participants
listed in Schedule I Thereto, as Original Loan
Participants, BVPS Funding Corporation, as Funding
Corporation, The First National Bank of Boston, as
-17-
Exhibit
Number
- -------
Owner Trustee, Irving Trust Company, as Indenture
Trustee, and Ohio Edison Company, as Lessee. (1987
Form 10-K, Exhibit 28-14.)
(F) 10-137 - Amendment No. 3 dated as of March 16, 1988 to
Participation Agreement dated as of September 15,
1987, as amended, among Chrysler Consortium
Corporation, as Owner Participant, BVPS Funding
Corporation, The First National Bank of Boston, as
Owner Trustee, Irving Trust Company, as Indenture
Trustee, and Ohio Edison Company, as Lessee. (1992
Form 10-K, Exhibit 10-114.)
(F) 10-138 - Amendment No. 4 dated as of November 5, 1992 to
Participation Agreement dated as of September 15,
1987, as amended, among Chrysler Consortium
Corporation, as Owner Participant, BVPS Funding
Corporation, BVPS II Funding Corporation, The
First National Bank of Boston, as Owner Trustee,
The Bank of New York, as Indenture Trustee and
Ohio Edison Company, as Lessee. (1992 Form 10-K,
Exhibit 10-115.)
(A)(F) 10-139 - Amendment No. 5 dated as of January 12, 1993 to
Participation Agreement dated as of September 15,
1987, as amended, among Chrysler Consortium
Corporation, as Owner Participant, BVPS Funding
Corporation, BVPS II Funding Corporation, The
First National Bank of Boston, as Owner Trustee,
The Bank of New York, as Indenture Trustee and
Ohio Edison Company, as Lessee.
(A)(F) 10-140 - Amendment No. 6 dated as of September 30, 1994 to
Participation Agreement dated as of September 15,
1987, as amended, among Chrysler Consortium
Corporation, as Owner Participant, BVPS Funding
Corporation, BVPS II Funding Corporation, The
First National Bank of Boston, as Owner Trustee,
The Bank of New York, as Indenture Trustee and
Ohio Edison Company, as Lessee.
(F) 10-141 - Facility Lease dated as of September 15, 1987,
between The First National Bank of Boston, as
Owner Trustee, with Chrysler Consortium
Corporation, Lessor, and Ohio Edison Company, as
Lessee. (1987 Form 10-K, Exhibit 28-15.)
(F) 10-142 - Amendment No. 1 dated as of February 1, 1988, to
Facility Lease dated as of September 15, 1987,
between The First National Bank of Boston, as
Owner Trustee, with Chrysler Consortium
Corporation, Lessor, and Ohio Edison Company,
Lessee. (1987 Form 10-K, Exhibit 28-16.)
(F) 10-143 - Amendment No. 2 dated as of November 5, 1992 to
Facility Lease dated as of September 15, 1987, as
amended, between The First National Bank of
-18-
Exhibit
Number
- -------
Boston, as Owner Trustee, with Chrysler Consortium
Corporation, as Owner Participant and Ohio Edison
Company, as Lessee. (1992 Form 10-K, Exhibit 118.)
(F) 10-144 - Amendment No. 3 dated as of January 12, 1993 to
Facility Lease dated as of September 15, 1987, as
amended, between The First National Bank of
Boston, as Owner Trustee, with Chrysler Consortium
Corporation, as Owner Participant, and Ohio Edison
Company, as Lessee. (1992 Form 10-K, Exhibit 10-
119.)
(A)(F) 10-145 - Amendment No. 4 dated as of September 30, 1994 to
Facility Lease dated as of September 15, 1987, as
amended, between The First National Bank of
Boston, as Owner Trustee, with Chrysler Consortium
Corporation, as Owner Participant, and Ohio Edison
Company, as Lessee.
(F) 10-146 - Ground Lease and Easement Agreement dated as of
September 15, 1987, between Ohio Edison Company,
Ground Lessor, and The First National Bank of
Boston, as Owner Trustee under a Trust Agreement,
dated as of September 15, 1987, with Chrysler
Consortium Corporation, Tenant. (1987 Form 10-K,
Exhibit 28-17.)
(F) 10-147 - Trust Agreement dated as of September 15, 1987,
between Chrysler Consortium Corporation, as Owner
Participant, and The First National Bank of
Boston. (1987 Form 10-K, Exhibit 28-18.)
(F) 10-148 - Trust Indenture, Mortgage, Security Agreement and
Assignment of Facility Lease dated as of
September 15, 1987, between the First National
Bank of Boston, as Owner Trustee under a Trust
Agreement, dated as of September 15, 1987, with
Chrysler Consortium Corporation and Irving Trust
Company, as Indenture Trustee. (1987 Form 10-K,
Exhibit 28-19.)
(F) 10-149 - Supplemental Indenture No. 1 dated as of
February 1, 1988 to Trust Indenture, Mortgage,
Security Agreement and Assignment of Facility
Lease dated as of September 15, 1987 between The
First National Bank of Boston, as Owner Trustee
under a Trust Agreement dated as of September 15,
1987 with Chrysler Consortium Corporation and
Irving Trust Company, as Indenture Trustee. (1987
Form 10-K, Exhibit 28-20.)
(F) 10-150 - Tax Indemnification Agreement dated as of
September 15, 1987, between Chrysler Consortium
Corporation, as Owner Participant, and Ohio Edison
Company, as Lessee. (1987 Form 10-K, Exhibit 28-
21.)
-19-
Exhibit
Number
- -------
(A)(F) 10-151 - Amendment No. 1 dated as of November 5, 1992 to
Tax Indemnification Agreement dated as of
September 15, 1987, between Chrysler Consortium
Corporation, as Owner Participant, and Ohio Edison
Company, as Lessee.
(A)(F) 10-152 - Amendment No. 2 dated as of January 12, 1993 to
Tax Indemnification Agreement dated as of
September 15, 1987, between Chrysler Consortium
Corporation, as Owner Participant, and Ohio Edison
Company, as Lessee.
(A)(F) 10-153 - Amendment No. 3 dated as of September 30, 1994 to
Tax Indemnification Agreement dated as of
September 15, 1987, between Chrysler Consortium
Corporation, as Owner Participant, and Ohio Edison
Company, as Lessee.
(F) 10-154 - Assignment, Assumption and Further Agreement dated
as of September 15, 1987, among The First National
Bank of Boston, as Owner Trustee under a Trust
Agreement, dated as of September 15, 1987, with
Chrysler Consortium Corporation, The Cleveland
Electric Illuminating Company, Duquesne Light
Company, Ohio Edison Company, Pennsylvania Power
Company, and Toledo Edison Company. (1987 Form
10-K, Exhibit 28-22.)
(F) 10-155 - Additional Support Agreement dated as of
September 15, 1987, between The First National
Bank of Boston, as Owner Trustee under a Trust
Agreement, dated as of September 15, 1987, with
Chrysler Consortium Corporation, and Ohio Edison
Company. (1987 Form 10-K, Exhibit 28-23.)
10-156 - Operating Agreement dated March 10, 1987 with
respect to Perry Unit No. 1 between the CAPCO
Companies. (1987 Form 10-K, Exhibit 28-24.)
10-157 - Operating Agreement for Bruce Mansfield Units Nos.
1, 2 and 3 dated as of June 1, 1976, and executed
on September 15, 1987, by and between the CAPCO
Companies. (1987 Form 10-K, Exhibit 28-25.)
10-158 - Operating Agreement for W. H. Sammis Unit No. 7
dated as of September 1, 1971 by and between the
CAPCO Companies. (1987 Form 10-K, Exhibit 28-26.)
10-159 - OE-APS Power Interchange Agreement dated March 18,
1987, by and among Ohio Edison Company and
Pennsylvania Power Company, and Monongahela Power
Company and West Penn Power Company and The
Potomac Edison Company. (1987 Form 10-K, Exhibit
28-27.)
10-160 - OE-PEPCO Power Supply Agreement dated March 18,
1987, by and among Ohio Edison Company and
Pennsylvania Power Company and Potomac Electric
Power Company. (1987 Form 10-K, Exhibit 28-28.)
-20-
Exhibit
Number
- -------
10-161 - Supplement No. 1 dated as of April 28, 1987, to
the OE-PEPCO Power Supply Agreement dated
March 18, 1987, by and among Ohio Edison Company,
Pennsylvania Power Company, and Potomac Electric
Power Company. (1987 Form 10-K, Exhibit 28-29.)
10-162 - APS-PEPCO Power Resale Agreement dated March 18,
1987, by and among Monongahela Power Company, West
Penn Power Company, and The Potomac Edison Company
and Potomac Electric Power Company. (1987 Form
10-K, Exhibit 28-30.)
-21-
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this amendment to be signed on its behalf by the undersigned,
thereunto duly authorized.
OHIO EDISON COMPANY
BY /s/Harvey L. Wagner
----------------------------------------
Harvey L. Wagner
Comptroller
Date: March 22, 1995
-22-
CERTIFICATE
OF
AMENDED ARTICLES OF INCORPORATION
OF
OHIO EDISON COMPANY
W. R. Holland, who is President and G. F. LaFlame, who
is Secretary of the above named Ohio corporation for profit with its
principal location at Akron, Ohio do hereby certify that at a
meeting of the Board of Directors called and held on the 21st day of
June, 1994, Amended Articles of Incorporation were unanimously
adopted to consolidate the provisions of the Company's original
Articles and all previously adopted amendments thereto which were
then in force. These Amended Articles take the place of and
supersede the existing Articles as theretofore amended. The Amended
Articles so adopted are as follows:
AMENDED ARTICLES OF INCORPORATION
---------------------------------
FIRST: The name of the corporation is Ohio Edison Company
(hereinafter referred to as the "Corporation").
SECOND: The place in the State of Ohio where its principal
office is located is the City of Akron, Summit County.
THIRD: The purpose or purposes for which such Corporation is
formed are:
(1) To manufacture, acquire by purchase, lease or
otherwise, transmit, distribute, sell and supply electricity
to public and private consumers for light, heat and power and
any or all other uses.
(2) To manufacture, acquire by purchase, lease or
otherwise transmit, distribute, sell and supply steam and hot
water for heat and power and any or all other uses.
(3) To manufacture, acquire by purchase, lease or
otherwise, transmit, distribute, sell and supply cold water
and ice for cold storage and refrigerator purposes and any or
all other uses.
(4) To manufacture, acquire by purchase, lease or
otherwise, transmit, distribute, sell and supply natural or
artificial gas for light, heat and power and any or all other
uses.
(5) To acquire, own, maintain, operate and dispose of
street and interurban railroads, with all necessary or
convenient appurtenances and appliances incidental to the
operation of street and interurban railroads, said railroads
to be operated by electric or other motive power except steam
or animal power, telegraph and telephone lines, and to
acquire, own, maintain, operate and dispose of automobiles and
busses with all necessary or convenient appurtenances and
appliances incidental to the operation of automobiles and
busses and to engage in the general business of a common
carrier upon its railroad or lines of railway, and telegraph
and telephone lines, or with its automobiles and busses.
(6) To acquire and hold the securities of electric
power and light and gas companies and other public utility
companies and companies owning the stocks or securities of
public utility companies.
(7) To acquire and hold the securities of companies
engaged in the business of operating or supervising the
operation of public utility companies and of companies doing
a general construction, engineering or contracting business
with public utility or other companies.
(8) To invest and deal with the monies of the
Corporation in any manner, and to acquire by purchase, by the
exchange of stock or other securities of the Corporation, by
subscription or otherwise and to invest in, to hold for
investment or for any other purpose and to deal in and to use,
sell, pledge or otherwise dispose of any stocks, bonds, notes,
debentures and other securities and obligations of any
Government, State, municipality or corporation or association
or partnership, domestic or foreign, (including without
prejudice to the generality of the foregoing the companies
described in paragraphs 6 and 7 above), and while owner of any
such stocks, bonds, notes, debentures or other securities or
obligations, to exercise all the rights, powers and privileges
of ownership, including among other things the right to vote
thereon for any and all purposes.
(9) Either directly, or through subsidiary companies,
to engage in the business of operating or supervising the
management or operation of public utility companies.
(10) To aid in any lawful manner by loan, subsidy,
guaranty or otherwise, any company whose stocks, bonds, notes,
debentures or other securities or obligations are held or
controlled directly or indirectly by the corporation, and to
do any and all lawful acts or things necessary or advisable to
protect, preserve, improve or enhance the value of any such
stocks, bonds, notes, debentures or other securities or
obligations.
(11) To guarantee and to assume the payment of any
dividends on any shares of the capital stock of any company in
which the Corporation may either directly or indirectly have
an interest as stockholder or otherwise, and to assume and to
guarantee by endorsement or otherwise the payment of the
principal of and the interest on bonds, notes or other
obligations created or to be created by any such company.
(12) To acquire, to develop, to improve, to sell, to
assign, to transfer, to convey, to lease, to sublease, to
pledge and to otherwise alienate and dispose of and to
mortgage or otherwise encumber real property situated in any
part of the world and the fixtures and personal property
incident thereto or connected therewith.
(13) To develop and turn to account any land acquired by
or in which the Corporation is interested and in particular by
laying out and preparing the same for building purposes,
constructing, altering and fully equipping buildings and by
letting the same by building lease or building agreement and
by advancing money to and entering into contracts and
arrangements of all kinds with builders, contractors, tenants
and others.
(14) To construct, improve and fully equip electric
power generating works, stations and substations, transmission
lines, steam heating plants, water works, gas works,
reservoirs, roads and additions to or extensions or
betterments of any and all of the same, and other works and
conveniences which the Corporation may deem directly or
indirectly conducive to these objects, and to sell, assign,
transfer, convey, lease and/or sublease any of said stations,
substations, works or conveniences to any other corporation or
corporations, association or associations, or individual or
individuals authorized to purchase or otherwise acquire or
lease the same.
(15) To purchase, to sell, to manufacture and generally
to deal in building materials and goods, wares and merchandise
and to carry on any other lawful trade or business incidental
to or proper or useful in connection with the purchase, sale,
ownership, construction and equipment of its property.
(16) To acquire, to hold, to own, to make, to dispose of
and generally to deal in grants, concessions, franchises,
rights of way and contracts of every kind from or with any
person, firm, association, corporation, private, public or
municipal, or body politic, and from or with the government or
public authorities of the United States, or of any State,
territory, possession or dependency thereof, or from or with
the District of Columbia, or from or with any foreign
government; to cause to be formed, to promote and to aid in
any way in the formation of any corporation or association,
domestic or foreign.
(17) To make and enter into all manner and kinds of
contracts, agreements and obligations for the purchasing,
acquiring, holding, using, dealing in, selling or otherwise
disposing of any and all kinds of property, real and personal.
(18) To borrow money, to issue bonds, debentures, notes
or other obligations secured or unsecured of the Corporation;
to secure the same by mortgage or mortgages or deed or deeds
of trust or pledge or other lien upon any or all of the
property, rights, privileges and franchises of the
Corporation wheresoever situated, acquired or to be acquired;
to confer upon the holders of any debentures, bonds, notes or
other obligations of the Corporation secured or unsecured the
right to convert the same into any class of stock of any
series of the Corporation now or hereafter to be issued upon
such terms as shall be fixed by the Board of Directors subject
to the provisions hereof; to sell, to pledge and to otherwise
dispose of any or all bonds, debentures, notes or other
obligations of the Corporation; to purchase and otherwise to
acquire shares of its own capital stock and to hold, to sell,
to assign, to transfer and to reissue any or all of such
shares; provided that the Corporation shall not use its funds
or property for the purchase of its own shares of capital
stock when such use would cause any impairment of the stated
capital of the Corporation, except as such purchase out of
capital may be permitted by law, and provided further that
shares of its own capital stock owned by the Corporation shall
not be voted upon directly or indirectly.
(19) To acquire, to hold, to use, to sell, to assign, to
lease, to mortgage and otherwise to dispose of letters patent
of the United States or of any other country, patents, patent
rights, copyrights, licenses and privileges, inventions,
improvements and processes, trade marks and trade names or
pending applications therefore, relating to or useful in
connection with any business of the Corporation or of any
other company or association in which the Corporation may have
an interest directly or indirectly as a stockholder or
otherwise.
(20) To deal in stocks and securities either as an agent
or broker or underwriter, or otherwise; to make advances or
loans upon the pledge of securities to be bought, sold or
otherwise dealt in, or without security, so far as may be
permitted by law.
(21) To have and to exercise all the powers now or
hereafter conferred by the laws of the State of Ohio upon
corporations organized under the laws under which the
Corporation is organized and any and all laws amendatory
thereof and supplemental thereto.
(22) To conduct business in the State of Ohio, other
States, the District of Columbia, the territories and colonies
of the United States and in foreign countries, and to have one
or more offices out of the State of Ohio, as well as within
said State, and to hold, purchase, mortgage and convey real
and personal property out of the State of Ohio as well as
within said State.
(23) Generally to carry on and undertake any other
lawful business of the same general nature, which may from
time to time seem to the directors of the Corporation capable
of being conveniently carried on in connection with the above
objects, or calculated directly or indirectly to render
valuable or enhance the value of any of the Corporation's
properties, privileges or rights.
(24) Generally to perform any and all acts connected
with, arising from or incidental to the business to be carried
on by the Corporation, and to do all acts necessary and proper
for the purposes of its business.
The foregoing clauses shall be construed both as objects and
powers; and it is hereby expressly provided that the foregoing
enumeration of specific powers shall not be held to limit or
restrict in any manner the objects or powers of the Corporation, and
that the Corporation shall possess such incidental powers as are
reasonably necessary or convenient for the accomplishment of any of
the objects or powers hereinbefore enumerated, either alone or in
association with other corporations, associations, firms or
individuals, to the same extent and as fully as individuals might or
could do as principals, agents, contractors or otherwise.
FOURTH: The maximum number of shares which the Corporation is
authorized to have outstanding is one hundred ninety-seven million
(197,000,000), of which six million (6,000,000) are to have a par
value of One Hundred Dollars ($100) per share, eight million
(8,000,000) are to have a par value of Twenty-five Dollars ($25) per
share, one hundred seventy-five million (175,000,000) are to have a
par value of Nine Dollars ($9) per share and eight million
(8,000,000) are to have no par value. The shares so authorized are
to be classified as follows:
<PAGE>
(a) DESIGNATION OF CLASSES.
Preferred Stock, Six million (6,000,000) shares, with a
par value of $100 per share;
Class A Preferred Stock, Eight million (8,000,000)
shares, with a par value of Twenty-five Dollars ($25) per
share;
Preference Stock, Eight million (8,000,000) shares, with
no par value;
Common Stock, One hundred seventy-five million
(175,000,000) shares, with a par value of $9 per share.
(b) EXPRESS TERMS AND PROVISIONS OF CLASSES.
See Exhibit A attached hereto which is made a part hereof as
though fully set forth at this place.
OTHER PROVISIONS
Rights of Directors in Declaring Dividends:
A director shall be fully protected in relying in good faith
upon the books of account of the Corporation or statements prepared
by any of its officials as to the value and amount of the assets,
liabilities and/or net profits of the Corporation, or any other
facts pertinent to the existence and amount of surplus or other
funds from which dividends might properly be declared and paid.
Rights to Treat Registered Holders as Owners:
The Corporation shall be entitled to treat the person in whose
name any share, right or option is registered as the owner thereof,
for all purposes, and shall not be bound to recognize any equitable
or other claim to or interest in such share, right or option on the
part of any other person, whether or not the Corporation shall have
notice thereof, save as may be expressly provided by the laws of the
State of Ohio.
FIFTH: No creditor of the Corporation shall have any claim or
right of action against a shareholder as such, except as may be
expressly provided by the laws of the State of Ohio.
SIXTH: The number of directors of the Corporation which shall
constitute the whole Board shall be such as from time to time shall
be fixed by, or in the manner provided in, the Code of Regulations,
and such number may be altered from time to time in the manner
provided in such Code of Regulations, or by amendment thereof,
adopted by the stockholders in the manner provided therein and by
the laws of Ohio, but such number shall in no case be less than
three. Vacancies caused by an increase in the number of Directors
or otherwise may be filled by the Board of Directors in the manner
provided in the Code of Regulations. Directors need not be
stockholders. Any director may be removed at any time with or
without cause upon the affirmative vote of the holders of a majority
of the stock of the Corporation at that time entitled to vote for
directors.
SEVENTH: The following additional provisions are inserted for
the management of the business and for the conduct of the affairs of
this Corporation and for the creation, definition, limitation and
regulation of the powers of the Corporation, the directors and the
stockholders:
(1) The Board of Directors shall have power from time
to time to fix and determine and to vary the amount to be
reserved as a working capital of the Corporation and, before
the payment of any dividends or making any distribution of
profits, it may set aside out of the net profits of the
Corporation such sum or sums as it may from time to time in
its absolute discretion think proper whether as a reserve
fund to meet contingencies or for the equalizing of dividends
or for repairing or maintaining any property of the
Corporation or for such corporate purposes as the Board shall
think conducive to the interests of the Corporation, subject
only to such limitations as the Code of Regulations of the
Corporation may from time to time impose.
(2) In the absence of fraud no contract or other
transaction between this Corporation and any other corporation
shall be affected by the fact that directors of this
Corporation are directors of such other corporation, if such
contract or transaction shall be approved or ratified by the
affirmative vote of a majority of the directors present at a
meeting of the Board of Directors or the committee of this
Corporation having authority in the premises, who are not so
interested. Any director individually, or any firm of which
any director is a partner, may be a party to or may be
interested in any contract or transaction of this Corporation
provided that such contract or transaction shall be approved
or ratified by the affirmative vote of at least a majority of
the directors present at a meeting of the Board of Directors
or the committee of the Corporation having authority in the
premises, who are not so interested. No director shall be
liable by reason of his interest in such transaction or
contract to account to the Corporation for any profit realized
by him from or through any such transaction or contract of the
Corporation, ratified or approved as aforesaid.
Directors interested in any contracts or transactions of
the types described in the foregoing paragraph may be counted
when present at meetings of the Board of Directors or of any
committee for the purpose of determining the existence of a
quorum to consider and vote upon any such contract or
transaction. Any director whose interest in any such contract
or transaction arises solely by reason of the fact that he is
a stockholder, officer or creditor of such other company (or
solely by reason of the fact that he is a director of such
other company or partner in such firm where such dealing,
contract or arrangement is made by officers or employees of
the Corporation in the ordinary performance of their duties
and without the actual participation of such director) shall
not be deemed interested in such contract or other transaction
under any of the provisions of this paragraph (2), nor shall
any such contract or transaction be void or voidable, nor
shall any such director be liable to account because of such
interest nor need any such interest be disclosed.
No contract or other transaction between this
Corporation and any other corporation, at least a majority of
the stock of which having voting power is owned or controlled
by the Corporation or which owns or controls at least a
majority of the stock having voting power of the Corporation,
shall in any case be void or voidable because of the fact that
directors of this Corporation are directors of such other
corporation, nor shall any such director be deemed interested
in such contract or other transaction under any of the
provisions of this subdivision (2), nor shall any such
director be liable to account because of such relation, nor
need any such relation be disclosed.
No contract or other transaction between this
Corporation and any other corporation or firm which provides
for the purchase and sale of securities or other property or
for any other action by this Corporation upon terms not less
favorable to this Corporation than those offered to others,
shall in any case be void or voidable because of the fact that
directors of this Corporation are directors of such other
corporations or partners in such firm, nor shall any director
be deemed interested in such contract or other transaction
under any of the provisions of this subdivision (2), nor shall
any such director be liable to account because of such
relation, nor need any such relation be disclosed.
Any contract, or act, including contracts in which any
director or directors of the Corporation are interested
directly or indirectly, that shall be approved or ratified by
the vote of the holders of a majority of the capital stock of
the Corporation having voting powers which is represented in
person or by proxy at any annual meeting of stockholders or at
any special meeting called for the purpose, among others, of
considering the approval or ratification of the acts of
officers and/or directors (provided that a lawful quorum of
stockholders be there represented in person or by proxy) shall
be as valid and as binding upon the Corporation and upon all
its stockholders as though it had been approved or ratified by
every stockholder of the Corporation.
(3) The Board of Directors shall also have power
without the assent or vote of the stockholders to fix the
times for the declaration and payment of dividends; to
authorize and cause to be executed and delivered mortgages on
and instruments of pledge, or any other instruments creating
liens, on the real and personal property of the Corporation;
and to make and determine the use and disposition of any
surplus or net profits over and above the stated capital of
the Corporation.
(4) The Board of Directors shall have power, in its
discretion, to redeem any preferred or special shares, if
subject to redemption, or to purchase any preferred or special
shares which are subject to redemption at not exceeding the
redemption price thereof, and, in the case of the redemption
or purchase of such preferred or special shares which are
subject to redemption, to withdraw and apply to such
redemption or purchase an amount out of its stated capital
which shall not exceed with respect to any share an amount
equal to that part of the consideration received by the
Corporation for said share as stated capital plus that part if
any of the surplus which may have been transferred to stated
capital with respect to such share. Nothing contained in
this paragraph (4) shall in any way affect the rights of the
Corporation to redeem or purchase any of its shares to the
extent of the surplus of the aggregate of its assets over the
aggregate of its liabilities plus stated capital and to hold
such shares or to resell them for such consideration as shall
be fixed from time to time by the Board of Directors, and
power and authorization so to redeem, purchase, hold, and
resell its shares or to purchase, hold and sell the shares of
a corporation which owns or controls shares of the Corporation
entitling such corporation to elect a majority of the Board of
Directors of the Corporation is vested solely in the Board of
Directors.
(5) In the event that any excess of assets over the
amount of the stated capital of the Corporation at any time is
created by any reduction of stated capital, then the Board of
Directors is hereby expressly authorized to dispose of such
excess of assets created by the reduction of stated capital
and such excess of assets shall be passed to and added to the
surplus of the Corporation and thereafter shall be subject to
disposition by the Board of Directors in all respects as
surplus paid in by shareholders.
(6) The Board of Directors may authorize any mortgage,
deed of trust or similar instrument on all or any part of the
Corporation's property, real or personal, for the purpose of
securing the payment or performance of any contract or
obligation. No vote or consent of shareholders shall be
necessary to authorize such action by the Board of Directors.
(7) The Board of Directors shall have the power to
appoint an Executive Committee from among their number, which
Committee, to the extent and in the manner provided in the
Code of Regulations of the Corporation, shall have and may
exercise all of the powers of the Board of Directors, so far
as may be permitted by law, in the management of the business
and affairs of the Corporation whenever the Board of Directors
is not in session. The fact that the Executive Committee has
acted shall be conclusive evidence that the Board of Directors
was not in session at the time of such action.
(8) The Board of Directors, in addition to the powers
and authority expressly conferred upon it hereinbefore and by
statute and by the Code of Regulations, is hereby empowered to
exercise all such powers as may be exercised by the
Corporation; subject, nevertheless, to the provisions of the
statutes of the State of Ohio, of these Articles as they may
be from time to time amended and to any regulation that may
from time to time be made by the stockholders, provided that
no regulation so made shall invalidate any provision of these
Articles as they may be from time to time amended or any prior
act of the directors which would have continued valid if such
regulation had not been made.
EIGHTH: The Corporation may, by action taken at any meeting of
its Board of Directors, sell, lease, exchange or otherwise dispose
of all or substantially all of its property and assets, including
its good will, upon such terms and conditions and for such
considerations, which may be money, shares, bonds, or other
instruments for the payment of money or other property or
considerations, and, if desired, may divide or distribute such
considerations among its shareholders on such terms and basis and in
such manner as its Board of Directors deems expedient, when and as
authorized by the vote of holders of shares entitling them to
exercise a majority of the voting power on such proposal, at a
shareholders' meeting called for that purpose.
Nothing in this Article Eighth is intended to restrict the
power of the Corporation, without the authorization thereof by the
shareholders, to sell, lease, exchange, or otherwise dispose of, any
of its property if thereby the corporate business be not
substantially limited, or if the proceeds of such property be
appropriated to the conduct or development of its remaining
business.
NINTH: The Corporation may upon the affirmative vote of the
holders of shares entitling them to exercise a majority of the
voting power of the Corporation as hereinbefore described, at a
meeting called for the purpose, confer upon the holders of any
bonds, debentures or obligations issued or to be issued by the
Corporation whether secured by mortgage or otherwise the power to
vote on election of directors and in respect of the corporate
affairs and management of the Corporation and, in such case, shall
fix the extent to which and the conditions and the manner in which
such power to vote shall be exercised; provided, however, that when
such voting power has been conferred it shall not be diminished
as to any bonds, debentures or obligations while they are
outstanding and, likewise, the Corporation may, but shall not be
obligated to, confer upon the holders of bonds, debentures or
obligations the right of inspection of the books of account and
minutes of the meetings, and any other rights which the shareholders
of said Corporation have or may have, to the extent that may be
determined at such meeting.
TENTH: Except as in these Articles otherwise expressly
provided, any dissenting shareholder who by the provisions of the
statutes of the State of Ohio is entitled to relief when the
articles of the Corporation have been amended or when all or
substantially all of the corporate assets of the Corporation have
been authorized to be sold, leased, exchanged or otherwise disposed
of or when a consolidation or reorganization of the Corporation has
been authorized, shall be compensated in the manner set forth and
subject to the terms and conditions provided in this Article Tenth,
and not otherwise. In the event that such shareholder (a) shall
have objected in writing to such proposed amendment or other matter
prior to or by vote or otherwise in writing at the meeting of the
shareholders called for the purpose of voting upon such amendment or
other matter which entitles such shareholder to such relief, and
(b) shall have within twenty days after the amendment or certificate
effecting such amendment or other matter has been filed with the
Secretary of State demanded in writing from the Corporation payment
of his stock, such shareholder shall be paid by the Corporation the
fair cash value (as hereinafter described) of his stock at the date
that written notice of said proposed amendment or other matter on
which action was to be taken was sent to the shareholders of the
meeting to be held for such purpose.
In the event that the shares of stock held by such dissenting
shareholder are of a class or classes which is or are dealt in on an
established Stock Exchange, the fair cash value of his share shall
be conclusively presumed to be the average closing price on such
exchange for the seven (7) successive business days (excluding
Sundays and holidays) ending with the day of mailing the notice
aforesaid. If there is no established Stock Exchange upon which
said stock is quoted and the Corporation and such shareholder fail
to come to an agreement within thirty days after the date of such
written demand, such shareholder may demand an appraisal of his
stock by three disinterested persons, one of whom shall be
designated by the shareholder, one by the directors of the
Corporation and the other by the two selected as aforesaid and may
serve written notice on such Corporation designating therein one
appraiser and requiring the Corporation to designate a second
appraiser within thirty days from the date of service of such
notice. If within thirty days from the date of service of such
notice the Corporation or its successor shall have failed to
designate a second appraiser or if the two appraisers first
designated shall fail to designate a third appraiser within thirty
days from the designation of the second appraiser, such shareholder
may apply to the Court of Common Pleas, or to a judge thereof, in
the county in which the principal office of the Corporation or its
successor is located to designate a second and a third appraiser, or
a third appraiser, as the case may be; and the decision of the
appraisers as to the value of such stock shall be final and binding
upon the Corporation and such shareholder; in case the value of such
stock as so fixed by the appraisers is not paid to such shareholder
within sixty days of notice of such decision to the Corporation or
its successor, the decision of the appraisers shall be evidence of
the amount due from the Corporation or its successors, and such
amount may be collected as other debts are by law collectible. Upon
receipt of payment in full of the value of such stock, such
shareholder shall transfer his stock to the Corporation or its
successor, to be disposed of by the directors thereof, or to be
retained for the benefit of the remaining shareholders.
A shareholder who so objects in writing and demands in writing
the payment of the fair cash value of any shares shall not be
entitled to vote such shares or to receive any dividends or
distributions thereon or to exercise any rights respecting such
shares, unless and until the sale, lease, exchange, other
disposition, consolidation, reorganization or amendment shall be
abandoned, or, with the consent of the Corporation, the objection
and demand shall be withdrawn.
Any shareholder who does not object and demand in writing the
payment of the fair cash value of his shares in the manner and at
the time hereinabove provided, shall be concluded by the vote of
assenting shareholders.
ELEVENTH: The Corporation reserves the right to increase or
decrease its authorized capital stock, or any class or series
thereof, or to reclassify the same, and to amend, alter, change or
repeal any provision contained in these Articles under which the
Corporation is organized or in any amendment thereto, in the manner
now or hereafter prescribed by law, and all rights conferred upon
stockholders in said Articles or any amendment thereto are granted
subject to this reservation; provided, however, that the Corporation
shall not decrease the amounts which any class or series of the
Preferred Stock shall be entitled to receive as dividends or upon
dissolution, liquidation or winding up in preference to any other
class, or decrease the redemption price of such class or series,
unless the holders of all the Preferred Stock of such class or
series so affected shall consent thereto.
To the extent that the affirmative vote of the holders of
shares of Common Stock of the Corporation is required (whether as a
class vote, individually or in conjunction with class votes of other
classes, or otherwise) to effect an amendment, alteration, change or
repeal of any provision contained in these Articles, the affirmative
vote of the holders of a majority of such shares shall satisfy such
requirement.
TWELFTH: Holders of shares of Preferred Stock, Class A
Preferred Stock, Preference Stock, and holders of Common Stock of
the Corporation shall have no preemptive rights to subscribe to any
additional issues of shares of the capital stock of the Corporation
of any class, or any rights to exchange shares issued for shares to
be issued.
THIRTEENTH: Subject to change, and until changed, as provided
in the section of the Ohio General Corporation Act relating to the
appointment of such an agent, G. F. LaFlame, whose address
(including street and number) is 76 South Main Street, Akron, Ohio
44308, is appointed the agent of the Corporation upon whom process,
tax notices or demands required or permitted by statute to be served
upon a corporation may be served.
FOURTEENTH: The code of regulations of the Corporation shall
be the code of regulations of Ohio Edison Company as of the date
hereof, or as the Code of Regulations may be amended in the manner
provided for herein or in the Code of Regulations.
FIFTEENTH: These Amended Articles of Incorporation take the
place of and supersede the existing articles of incorporation as
heretofore amended.
IN WITNESS WHEREOF, the above named officers, acting for and
on behalf of the corporation, have subscribed their names this 21st
day of June, 1994.
/s/ W. R. Holland
----------------------------------------
W. R. Holland, President and
Chief Executive Officer
/s/ G. F. LaFlame
----------------------------------------
G. F. LaFlame, Secretary
Exhibit A
OHIO EDISON COMPANY
STATEMENT OF THE EXPRESS TERMS OF THE SHARES OF:
PREFERRED STOCK, CLASS A PREFERRED STOCK, PREFERENCE STOCK AND
COMMON STOCK OF OHIO EDISON COMPANY, AND OF CERTAIN OTHER PROVISIONS
RELATING THERETO, AS CONTAINED IN THE ARTICLES OF INCORPORATION OF
OHIO EDISON COMPANY, AS AMENDED.
Express Terms and Provisions of Classes
The express terms and provisions of the shares of each class
are as follows:
PREFERRED STOCK
Provision for Division Into and Issue in Series of Preferred
Stock and Grant of Authority to Board of Directors
The Shares of the Preferred Stock may be divided into and
issued in series. Each such series shall be designated so as to
distinguish the shares thereof from the shares of all other series
and classes and all shares of the Preferred Stock, irrespective of
series, shall be identical except as to the following rights and
preferences in respect of any or all of which there may be
variations between different series, and authority is hereby
expressly granted to and vested in the Board of Directors to
establish series and to determine by amendment to these Articles,
adopted prior to the issuance of any shares of such series, the
following rights and preferences of the shares thereof in accordance
with the provisions of the General Corporation Law of the State of
Ohio applicable thereto:
(a) The rate of dividend and the dividend payment dates;
(b) The price at which shares may be redeemed, such price to
be not less than $100 or more than $115 per share, plus
accrued dividends to the date of redemption;
(c) The amount payable upon shares in event of involuntary
liquidation, which amount shall not be less than $100 per
share or more than $115 per share, plus accrued dividends;
(d) The amount payable upon shares in event of voluntary
liquidation, which amount shall not be less than $100 per
share or more than $115 per share, plus accrued dividends;
(e) The terms and conditions, if any, on which shares of such
series shall be by their terms convertible into or
exchangeable for shares of any other class of stock of the
Corporation over which the Preferred Stock has preference
as to payment of dividends and as to assets;
(f) The sinking fund requirements, if any, for the purchase
or redemption of shares of such series which requirements
shall not permit the purchase or redemption of shares of
such series while the Corporation is subject to the Public
Utility Holding Company Act of 1935 if the Corporation is
in arrears with respect to dividends on any series of
Preferred Stock or Class A Preferred Stock, unless
approval for such purchase or redemption has been obtained
under that Act.
The Board of Directors are hereby authorized to issue and sell
all the authorized unissued shares of Preferred Stock as shares of
any series.
CLASS A PREFERRED STOCK
Provision for Division Into and Issue in Series of Class A
Preferred Stock and Grant of Authority to Board of Directors
The shares of Class A Preferred Stock may be divided into and
issued in series. Each such series shall be designated so as to
distinguish the shares thereof from the shares of all other series
and classes and all shares of the Class A Preferred Stock,
irrespective series, shall be identical except as to the following
rights and preferences in respect of any or all of which there may
be variations between different series, and authority is hereby
expressly granted to and vested in the Board of Directors to
establish series and to determine by amendment to these Articles,
adopted prior to the issuance of any shares of such series, the
following rights and preferences of the shares thereof in accordance
with the provisions of the General Corporation Law of the State of
Ohio applicable thereto:
(a) The rate of dividend and the dividend payment dates;
(b) The price at which shares may be redeemed, such price to
be not less than $25 per share or more than $28.75 per
share, plus accrued dividends to the date of redemption;
(c) The amount payable upon shares in event of involuntary
liquidation, which amount shall not be less than $25 per
share or more than $28.75 per share, plus accrued
dividends;
(d) The amount payable upon shares in event of voluntary
liquidation, which amount shall not be less than $25 per
share or more than $28.75 per share, plus accrued
dividends;
(e) The terms and conditions, if any, on which shares of such
series shall be by their terms convertible into or
exchangeable for shares of any other class of stock of the
Corporation over which the Class A Preferred Stock has
preference as to payment of dividends and as to assets;
(f) The sinking fund requirements, if any, for the purchase
or redemption of shares of such series which requirements
shall not permit the purchase or redemption of shares of
such series while the Corporation is subject to the Public
Utility Holding Company Act of 1935 if the Corporation is
in arrears with respect to dividends on any series of
Class A Preferred Stock or Preferred Stock, unless
approval for such purchase or redemption has been obtained
under that Act.
The Board of Directors are hereby authorized to issue and sell
all the authorized and unissued shares of Class A Preferred Stock as
shares of any series.
General Provisions
The following provisions shall apply to all of the Preferred
Stock and Class A Preferred Stock irrespective of series:
(A) The holders of the Preferred Stock and Class A Preferred
Stock of each series shall be entitled to receive dividends, payable
when and as declared by the Board of Directors, on such dates and at
such rates as shall be determined for the respective series, from
the first day of the current dividend period within which such stock
shall have been originally issued, before any dividends shall be
declared or paid upon or set apart for the Common Stock or any other
class of stock of the Corporation not having preference over the
Preferred Stock and Class A Preferred Stock as to payment of
dividends. Such dividends shall be cumulative so that if for any
dividend period or periods dividends shall not have been paid or
declared and set apart for payment upon all outstanding Preferred
Stock and Class A Preferred Stock at the rates determined for the
respective series, the deficiency shall be fully paid, or declared
and set apart for payment, before any dividends shall be declared or
paid upon the Common Stock or any other class of stock of the
Corporation not having preference over the Preferred Stock and
Class A Preferred Stock as to payment of dividends. Dividends shall
not be declared and set apart for payment, or paid, on the Preferred
Stock or Class A Preferred Stock of any one series, for any dividend
period, unless dividends have been or are contemporaneously declared
and set apart for payment or paid on the Preferred Stock and Class A
Preferred Stock of all series for all dividend periods terminating
on the same or an earlier date.
(B) When full cumulative dividends as aforesaid upon the
Preferred Stock and Class A Preferred Stock of all series then
outstanding for all past dividend periods and for the current
dividend periods shall have been paid or declared and set apart for
payment, the Board of Directors may declare dividends on the Common
Stock or any other class of stock over which the Preferred Stock or
Class A Preferred Stock has preference as to payment of dividends,
and no holders of any series of the Preferred Stock or Class A
Preferred Stock as such shall be entitled to share therein;
provided, however, that, so long as any shares of the 4.40%
Preferred Stock or the 3.90% Preferred Stock are outstanding, no
dividends (other than dividends paid in or presently thereafter
repaid to the Corporation for or as a capital contribution with
respect to stock over which the Preferred Stock and Class A
Preferred Stock have preference as to payment of dividends and as to
assets) shall be paid or any other distribution of assets made, by
purchase of shares or otherwise, on Common Stock or any other class
of stock over which the Preferred Stock and Class A Preferred Stock
have preference as to payment of dividends or as to assets except
out of accumulated surplus available for distribution to stock over
which the Preferred Stock and Class A Preferred Stock have
preference as to payment of dividends and as to assets, earned
subsequent to September 30, 1944, or if, at the time of declaration
thereof or the making of such distribution, there shall not remain
to the credit of earned surplus account (after deducting therefrom
the amount of such dividends and distribution) an amount at least
equal to one and one-half times the annual dividend requirements on
all then outstanding shares of the Preferred Stock and Class A
Preferred Stock and on all other classes of stock over which the
Preferred Stock and Class A Preferred Stock do not have preference
as to payment of dividends and as to assets.
So long as any shares of the Preferred Stock and Class A
Preferred Stock are outstanding, the Corporation shall not (except
as may be approved or permitted by the affirmative favorable vote of
the holders of at least 66-2/3% of the total number of shares of
Preferred Stock and Class A Preferred Stock at the time outstanding
voting as a single class, such total number of shares for this
purpose to be calculated on the basis of each share of Preferred
Stock being counted as one share and each share of Class A Preferred
Stock being counted as one-quarter share), declare or pay any
dividends on the Common Stock, except as follows:
(a) If and so long as the common stock equity at the end of
the calendar month immediately preceding the date on which
a dividend on Common Stock is declared is, or as a result
of such dividend would become, less than 20% of total
capitalization, the Corporation shall not declare such
dividend in an amount which, together with all other
dividends on Common Stock paid within the year ending with
and including the date on which such dividend is payable,
exceeds 50% of the consolidated net income of the
Corporation and its subsidiary companies available for
dividends on the Common Stock for the twelve full calendar
months immediately preceding the month in which such
dividend is declared;
(b) If and so long as the common stock equity at the end of
the calendar month immediately preceding the date on which
a dividend on Common Stock is declared is, or as a result
of such dividend would become, less than 25% but not less
than 20% of total capitalization, the Corporation shall
not declare such dividend in an amount which, together
with all other dividends on Common Stock paid within the
year ending with and including the date on which such
dividend is payable, exceeds 75% of the consolidated net
income of the Corporation and its subsidiary companies
available for dividends on the Common Stock for the twelve
full calendar months immediately preceding the month in
which such dividend is declared; and
(c) At any time when the common stock equity is 25% or more
of total capitalization, the Corporation may not declare
dividends on shares of the Common Stock which would reduce
the common stock equity below 25% of total capitalization,
except to the extent provided in subparagraphs (a) and (b)
above.
For the purposes of the foregoing limitation (i) the term
"common stock equity" shall mean the sum of the par value of, or
stated value or capital represented by, the shares of Common Stock
of the Corporation, and the consolidated surplus, earned, capital
and paid-in, of the Corporation and its subsidiary companies
(including any premiums on Common Stock but excluding any premiums
on the Preferred Stock and Class A Preferred Stock), whether or not
available for the payment of dividends on the Common Stock; (ii) the
term "total capitalization" shall mean the sum of the par value of,
or stated value or capital represented by, the capital stock of all
classes of the Corporation and its subsidiary companies outstanding
in the hands of the public, the consolidated surplus, earned,
capital and paid-in, of the Corporation and its subsidiary companies
(including any premiums on any such capital stock), whether or not
available for the payment of dividends on the Common Stock, and the
principal amount of all debt of the Corporation and its subsidiary
companies outstanding in the hands of the public, maturing more than
twelve months after the date of the determination of the total
capitalization; and (iii) the term "dividends on Common Stock" shall
embrace dividends on Common Stock of the Corporation (other than
dividends payable only in shares of such Common Stock),
distributions on, and purchases or other acquisitions for value of
any Common Stock of the Corporation.
(C) Upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of
Preferred Stock and Class A Preferred Stock of each series, without
any preference of the shares of any series of Preferred Stock or
Class A Preferred Stock over the shares of any other series of
Preferred Stock or Class A Preferred Stock, shall be entitled to
receive out of the assets of the Corporation, whether capital,
surplus or other, before any distribution of the assets to be
distributed shall be made to the holders of Common Stock or of any
other class of stock not having preference as to assets over the
Preferred Stock and Class A Preferred Stock, the amount determined
to be payable on the shares of such series in the event of voluntary
or involuntary liquidation, as the case may be. In case the assets
shall not be sufficient to pay in full the amounts determined to be
payable on all the shares of Preferred Stock and Class A Preferred
Stock in the event of voluntary or involuntary liquidation, as the
case may be, then the assets available for such payment shall be
distributed to the extent available as follows: first, to the
payment, pro rata, of an amount per share on each share of Preferred
Stock and Class A Preferred Stock outstanding irrespective of series
equal to the par value thereof; second, to the payment of the
accrued dividends on such shares, such payment to be made pro rata
in accordance with the amount of accrued dividends on each such
share; and, third, to the payment of any amounts in excess of the
par value per share plus accrued dividends which shall have been
determined to be payable on the shares of any series of Preferred
Stock and Class A Preferred Stock in the event of voluntary or
involuntary liquidation, as the case may be, such payment also to be
made pro rata in accordance with the amounts, if any, so payable on
each such share. After payment to the holders of the Preferred
Stock and of the Class A Preferred Stock of the full preferential
amounts hereinabove provided for, the holders of the Preferred Stock
and of the Class A Preferred Stock as such shall have no right or
claim to any of the remaining assets of the Corporation, either upon
any distribution of such assets or upon dissolution, liquidation or
winding up, and the remaining assets to be distributed, if any, upon
a distribution of such assets or upon dissolution, liquidation or
winding up, may be distributed among the holders of the Common Stock
or of any other class of stock over which the Preferred Stock and
the Class A Preferred Stock have preference as to assets. Without
limiting the right of the Corporation to distribute its assets or to
dissolve, liquidate or wind up in connection with any sale, merger,
or consolidation, the sale of all or substantially all of the
property of the Corporation to, or the merger or consolidation of
the Corporation with or into, any other corporation shall not be
deemed to be a distribution of assets or a dissolution, liquidation,
or winding up for the purposes of this paragraph.
(D) At the option of the Board of Directors of the
Corporation, the Corporation may redeem any series of Preferred
Stock or Class A Preferred Stock determined to be redeemable, or any
part of any series, at any time at the redemption price determined
for such series; provided, however, that not less than thirty nor
more than sixty days previous to the date fixed for redemption a
notice of the time and place thereof shall be given to the holders
of record of the Preferred Stock or Class A Preferred Stock so to be
redeemed, by mail or publication, in such manner as may be
prescribed by the Code of Regulations of the Corporation or by
resolution of the Board of Directors; and, provided, further, that,
in every case of redemption of less than all of the outstanding
shares of any one series of Preferred Stock or Class A Preferred
Stock, the shares of such series to be redeemed shall be chosen by
lot in such manner as may be prescribed by resolution of the Board
of Directors. At any time after notice of redemption has been given
in the manner prescribed by the Code of Regulations of the
Corporation or by resolution of the Board of Directors to the
holders of stock so to be redeemed, the Corporation may deposit the
aggregate redemption price with some bank or trust company in the
Borough of Manhattan, the City of New York, named in such notice,
payable on the date fixed for redemption as aforesaid and in the
amounts aforesaid to the respective orders of the holders of the
shares so to be redeemed, on endorsement to the Corporation, or
otherwise, as may be required, and upon surrender of the
certificates for such shares. Upon the deposit of said money as
aforesaid, or, if no such deposit is made, upon said redemption date
(unless the Corporation defaults in making payment of the redemption
price as set forth in such notice), such holders shall cease to be
shareholders with respect to said shares, and from and after the
making of said deposit, or, if no such deposit is made, after the
redemption date (the Corporation not having defaulted in making
payment of the redemption price as set forth in such notice), the
said holders shall have no interest in or claim against the
Corporation, with respect to said shares, but from and after the
date fixed for redemption as aforesaid shall be entitled only to
receive said monies from said bank or trust company, or if no such
deposit is made, or if such deposit has been made and thereafter
paid over to the Corporation as hereinafter provided, from the
Corporation, without interest thereon, upon endorsement, if
required, and surrender of the certificates as aforesaid.
In case the holder of any such Preferred Stock or Class A
Preferred Stock shall not, within six years after said deposit,
claim the amount deposited as above stated for the redemption
thereof, the Depositary shall upon demand pay over to the
Corporation such amounts so deposited and the Depositary, but not
the Corporation, shall thereupon be relieved from all responsibility
to the holder thereof.
Nothing herein contained shall limit any legal right of the
Corporation to purchase any shares of the Preferred Stock or Class A
Preferred Stock. Any shares of Preferred Stock or Class A Preferred
Stock redeemed, purchased or otherwise acquired shall not be
reissued but shall be retired and cancelled.
(E) So long as any shares of the Preferred Stock or Class A
Preferred Stock are outstanding, the Corporation shall not:
(a) without the affirmative vote in favor thereof of the
holders of at least 66-2/3% of the total number of
shares of Preferred Stock and Class A Preferred
Stock at the time outstanding voting as a single
class, such total number of shares for this purpose
to be calculated on the basis of each share of
Preferred Stock being counted as one share and each
share of Class A Preferred Stock being counted as
one-quarter share, issue (such issuance to be within
180 days after such a vote) any shares of any class
of stock preferred as to dividends or assets over
the Preferred Stock and Class A Preferred Stock or
any security convertible into such class of stock,
or adopt an amendment of these Articles, which would
either (i) create or authorize any shares of any
class preferred as to dividends or assets over the
Preferred Stock and Class A Preferred Stock, or
(ii) change any of the rights and preferences of the
then outstanding Preferred Stock or Class A
Preferred Stock in any manner substantially
prejudicial to the holders thereof; provided,
however, that if any such change would adversely
affect the holders of only one such class of stock,
only the affirmative vote of the holders of at least
66-2/3% of the class so affected shall be required;
and provided, further, that nothing in this
paragraph contained shall authorize the adoption of
any amendment of these Articles by the vote of the
holders of a less number of shares of Preferred
Stock or Class A Preferred Stock, or of any other
class of stock, or of all classes of stock, then is
required for adoption of such amendment by the laws
of the State of Ohio at the time applicable thereto;
(b) sell, lease, exchange, or otherwise dispose of all
or substantially all its property or merge or
consolidate with or into any other corporation or
corporations, without the affirmative vote in favor
of such sale, lease, exchange, disposition, merger
or consolidation of the holders of at least a
majority of the total number of shares of Preferred
Stock and Class A Preferred Stock at the time
outstanding voting as a single class, such total
number of shares for this purpose to be calculated
on the basis of each share of Preferred Stock being
counted as one share and each share of Class A
Preferred Stock being counted as one-quarter share,
unless such sale, lease, exchange, disposition,
merger or consolidation, or the issuance and
assumption of all securities to be issued or assumed
in connection with any such sale, lease, exchange,
disposition, merger or consolidation, shall have
been ordered, approved or permitted by a regulatory
authority of the United States of America having
jurisdiction in the premises; provided, however,
that nothing in this paragraph contained shall
authorize any such sale, lease, exchange,
disposition, merger or consolidation by the vote of
the holders of a less number of shares of the
Preferred Stock or Class A Preferred Stock, or of
any other class of stock, or of all classes of
stock, than is required for such sale, lease,
exchange, disposition, merger or consolidation by
the laws of the State of Ohio at the time applicable
thereto; and provided, further, that the provisions
of this paragraph shall not apply to a purchase or
other acquisition by the Corporation of franchises
or assets of another corporation in any manner which
does not involve a merger or consolidation;
(c) issue or assume (unless such issue or assumption
shall have been approved by the affirmative vote of
the holders of at least a majority of the total
number of shares of Preferred Stock and Class A
Preferred Stock at the time outstanding voting as a
single class, such total number of shares for this
purpose to be calculated on the basis of each share
of Preferred Stock being counted as one share and
each share of Class A Preferred Stock being counted
as one-quarter share), any unsecured notes,
debentures or other securities representing
unsecured indebtedness for purposes other than
(i) the refunding of outstanding unsecured
indebtedness theretofore issued or assumed by the
Corporation, (ii) the reacquisition, redemption or
other retirement of any indebtedness, or (iii) the
reacquisition, redemption or other retirement of all
outstanding shares of the Preferred Stock and issue
or assumption, the total principal amount of all
unsecured notes, debentures or other securities
representing unsecured indebtedness issued or
assumed by the Corporation and then outstanding
(including unsecured securities then to be issued or
assumed but excluding the principal amount of any
unsecured notes, debentures or other securities
representing unsecured indebtedness having a
maturity in excess of ten (10) years and in amount
not exceeding 20% of the aggregate of (1) and
(2) immediately hereinbelow described) would exceed
20% of the aggregate of (1) the total principal
amount of all bonds or other securities representing
secured indebtedness issued or assumed by the
Corporation and then to be outstanding and (2) the
aggregate, at the time of such issue or assumption,
of the par value of, or stated capital represented
by, the outstanding shares of all classes of stock
and of the surplus of the Corporation, paid-in,
earned and other, if any. When unsecured notes,
debentures or other securities representing
unsecured debt of a maturity in excess of ten (10)
years shall become of a maturity of ten (10) years
or less, it shall then be regarded as unsecured debt
of a maturity of less than ten (10) years and shall
be computed with such debt for the purpose of
determining the percentage ratio to the sum of
(1) and (2) above of unsecured debt of a maturity of
less than ten (10) years, and when provision shall
have been made, whether through a sinking fund or
otherwise, for the retirement, prior to their
maturity, of unsecured notes, debentures or other
securities, representing unsecured debt of a
maturity in excess of ten (10) years, the amount of
any such security so required to be retired in less
than ten (10) years shall be regarded as unsecured
debt of a maturity of less than ten (10) years (and
not as unsecured debt of a maturity in excess of ten
(10) years) and shall be computed with such debt for
the purpose of determining the percentage ratio to
the sum of (1) and (2) above of unsecured debt of a
maturity of less than ten (10) years, provided,
however, that the payment due upon the maturity of
unsecured debt having an original single maturity in
excess of ten (10) years or the payment due upon the
latest maturity of any serial unsecured debt of
which the original latest maturity was in excess of
ten (10) years shall not, for purposes of this
provision, be regarded as unsecured debt of a
maturity of less than ten (10) years until such
payment or payments shall be required to be made
within five (5) years; furthermore, when unsecured
notes, debentures or other securities representing
unsecured debt of a maturity of less than ten (10)
years shall exceed 20% of the sum of (1) and (2)
above, no additional unsecured notes, debentures or
other securities representing unsecured debt shall
be issued or assumed (except for the purposes set
forth in (i), (ii) and (iii) above) until such ratio
is reduced to 20% of the sum of (1) and (2) above;
or
(d) issue, sell or otherwise dispose of any shares of
Preferred Stock or Class A Preferred Stock, or
issue, sell or otherwise dispose of any class of
stock ranking pari passu with the Preferred Stock
----------
and Class A Preferred Stock as to the payment of
dividends and as to assets, unless, in either case,
(i) the net income of the Corporation available for
the payment of dividends for a period of twelve
consecutive calendar months within the fifteen
calendar months immediately preceding the issuance,
sale or disposition of such stock (including, in any
case in which such stock is to be issued, sold or
otherwise disposed of in connection with the
acquisition of property, the net income of the
property to be acquired, computed on the same basis
as the net income of the Corporation available for
the payment of dividends) is at least equal to twice
the annual dividend requirements on all shares of
Preferred Stock and Class A Preferred Stock and of
all classes of stock over which the Preferred Stock
and Class A Preferred Stock do not have preference
as to the payment of dividends and as to assets,
including the shares proposed to be issued, to be
outstanding immediately following such issuance,
sale or disposition, and (ii) the gross income of
the Corporation available for the payment of
interest for a period of twelve consecutive calendar
months within the fifteen calendar months
immediately preceding the issuance, sale or
disposition of such stock (including, in any case in
which such stock is to be issued, sold or otherwise
disposed of in connection with the acquisition of
property, the gross income of the property to be so
acquired, computed on the same basis as the gross
income of the Corporation available for the payment
of interest) is at least equal to one and one-half
(1-1/2) times the aggregate of the annual interest
requirements (adjusted by provision for amortization
of debt discount and expense or of premium on debt,
as the case may be) on all indebtedness of the
Corporation and the annual dividend requirements
(adjusted by provision for amortization of Preferred
Stock and Class A Preferred Stock premium and
expense) on all shares of Preferred Stock and
Class A Preferred Stock and of all classes of stock
over which the Preferred Stock and Class A Preferred
Stock do not have preference as to the payment of
dividends and as to assets, including the shares
proposed to be issued, to be outstanding immediately
following such issuance, sale or disposition, and
(iii) the aggregate of the capital of the
Corporation applicable to the Common Stock and the
surplus of the Corporation shall be not less than
the aggregate amount payable on the involuntary
liquidation, dissolution or winding up of the
Corporation, in respect of all shares of the
Preferred Stock and Class A Preferred Stock and all
shares of stock, if any, ranking prior thereto, or
on a parity therewith, as to dividends or
distributions, which will be outstanding after the
issue of the shares proposed to be issued; provided,
that the Corporation shall not thereafter pay any
dividends on Common Stock (the term "dividends on
Common Stock" shall have the definition set forth in
paragraph (B) hereinabove) unless immediately
thereafter the Corporation's common stock equity
(the words "common stock equity" as used in this
sub-paragraph meaning the sum of the par or stated
value of the outstanding Common Stock of the
Corporation, the earned surplus and the capital and
paid-in surplus of the Corporation, whether or not
available for the payment of dividends on the Common
Stock, and any premium on the Common Stock of the
Corporation) shall be at least equal to the
aggregate amount payable, on involuntary
liquidation, dissolution or winding up of the
Corporation, on all shares of the Preferred Stock
and Class A Preferred Stock and of any stock ranking
prior to, or on a parity with, the Preferred Stock
and Class A Preferred Stock, as to dividends or
other distributions, at the time outstanding;
provided, however, that all or any of the foregoing
limitations contained in (ii) and (iii) of this
subdivision (d) may at any time and all or any of
the foregoing limitations contained in (i) of this
subdivision (d) may, if and whenever there are no
longer outstanding shares of the 4.40% Preferred
Stock or of the 3.90% Preferred Stock, be waived by
the affirmative vote in favor thereof of the holders
of at least a majority of the total number of shares
of preferred Stock and Class A Preferred Stock at
the time outstanding voting as a single class, such
total number of shares for this purpose to be
calculated on the basis of each share of Preferred
Stock being counted as one share and each share of
Class A Preferred Stock being counted as one-quarter
share.
(F) So long as there are any shares of the 4.40% Preferred
Stock or of the 3.90% Preferred Stock outstanding, the Corporation
shall not issue, sell or otherwise dispose of any shares of
Preferred Stock or Class A Preferred Stock if the total number of
shares thereof thereafter issued and outstanding would exceed
200,000, such total number of shares for this purpose to be
calculated on the basis of each share of Preferred Stock being
counted as one share and each share of Class A Preferred Stock being
counted as one-quarter share, or issue, sell or otherwise dispose of
any class of stock ranking pari passu with the Preferred Stock and
----------
Class A Preferred Stock as to the payment of dividends and as to
assets, unless, in any such case, prior thereto or simultaneously
therewith, the total par value of, or stated capital represented by,
shares of stock over which the Preferred Stock and Class A Preferred
Stock have preference as to the payment of dividends and as to
assets shall have been increased over $14,366,776 by an amount at
least equal to $75 for each share so to be issued of Preferred Stock
and $18.75 for each share so to be issued of Class A Preferred
Stock, including the shares to be issued, in excess of 200,000
shares calculated as set forth above and by an amount equal to $75
for each share so to be issued of any kind of stock over which the
Preferred Stock and Class A Preferred Stock do not have preference
as to the payment of dividends and as to assets.
(G) The term "accrued dividends" shall be deemed to mean in
respect of any share of the Preferred Stock or Class A Preferred
Stock of any series, as of any given date, the amount, if any, by
which the product of the rate of dividend per annum, determined upon
the shares of such series, multiplied by the number of years and any
fractional part of a year which shall have elapsed from the date
after which dividends on such stock became cumulative to such given
date, exceeds the total dividends actually paid on such stock and
the dividends declared and set apart for payment. Accumulations of
dividends shall not bear interest.
The term "outstanding", whenever used herein with respect to
shares of Preferred Stock or Class A Preferred Stock or of any other
class of stock which are by their terms redeemable, or with respect
to bonds or other evidences of indebtedness, shall not include any
such shares or bonds or evidences of indebtedness which have been
called for redemption in accordance with the provisions applicable
thereto, of which call for redemption notice shall have been given,
as required by such provisions, and for the redemption of which a
sum of money sufficient to pay the amount payable on such redemption
shall have been deposited with a bank or trust company, in trust for
such purpose, or any bonds or other evidences of indebtedness for
the payment of which at maturity provision has been made in a
similar manner.
The term "net income of the Corporation available for the
payment of dividends" shall mean the balance remaining after
deducting from the total gross earnings of the Corporation from all
sources the following: (a) all operating expenses and taxes,
including charges to income for general taxes and for federal income
and excess profits taxes, for retirement or depreciation reserve and
for amortization or other disposition of amounts, if any, classified
as amounts in excess of original cost of utility plant, and (b) all
interest charges and other income deductions, including charges to
income for amortization of debt discount, premium and expense. For
the purpose of computing such net income of the Corporation
available for the payment of dividends, there shall not be deducted
any provision made for the amortization of Preferred Stock or
Class A Preferred Stock premium, discount, commission and expense.
The term "gross income of the Corporation available for the
payment of interest" shall be determined in accordance with
generally accepted accounting practices, but in any event after
deducting the amount charged for the period by the Corporation on
its books for all taxes, including charges to income for general
taxes and for federal and state taxes measured by income, for
retirement or depreciation reserve and, so long as classified as an
operating expense, for amortization or other disposition of amounts,
if any, classified as amounts in excess of original cost of utility
plant.
PREFERENCE STOCK
Provision for Division Into and Issue in
Series of Preference Stock and Grant of
Authority to Board of Directors
The shares of the Preference Stock may be divided into and
issued in series. Each such series shall be designated so as to
distinguish the shares thereof from the shares of all other series
and classes, and all shares of the Preference Stock, irrespective of
series, shall be identical except as to the following rights and
preferences in respect of any or all of which there may be
variations between different series, and authority is hereby
expressly granted to and vested in the Board of Directors to
establish series and to determine by amendment to these Articles,
adopted prior to the issuance of any shares of such series, the
following rights and preferences of the shares thereof in accordance
with the provisions of the General Corporation Law of Ohio
applicable thereto:
(a) The rate of dividend and the dividend payment dates;
(b) The price at and the terms and conditions on which shares
may be redeemed;
(c) The amount payable upon shares in event of involuntary
liquidation;
(d) The amount payable upon shares in event of voluntary
liquidation;
(e) Sinking fund provisions, if any, for the redemption or
purchase of shares (the term "sinking fund" as used
herein, including any analogous fund, however designated);
and
(f) The terms and conditions on which shares may be converted,
if the shares of any series are issued with the privilege
of conversion.
The Board of Directors are hereby authorized to issue and sell
all the authorized and unissued shares of Preference Stock as shares
of any series which shall have been duly established, and in the
event that the Corporation shall acquire, by purchase or redemption
or otherwise, any issued shares of its Preference Stock of any
series, the Board of Directors may resell or convert and sell, in
their discretion, any shares so acquired as shares of the same or of
any other series of Preference Stock which shall have been duly
established.
Shares of any series of Preference Stock, without par value,
may be issued for such consideration, not less than the event of
involuntary liquidation, as may be fixed by the Board of Directors
prior to the time of such issuance and, except as otherwise
determined by the Board of Directors in accordance with the
provisions of the General Corporation Law of Ohio applicable
thereto, the entire amount of such consideration shall be stated
capital.
General Provisions
The following provisions shall apply to all shares of the
Preference Stock irrespective of series:
(A) The shares of Preference Stock shall be subordinate to the
Preferred Stock and the Class A Preferred Stock but in preference to
the Common Stock as to the payment of dividends. The holders of the
Preference Stock of each series shall be entitled to receive
dividends payable quarterly when and as declared by the Board of
Directors on such dates and at such rates as shall be determined for
the respective series, from the date upon which such shares shall
have been originally issued, before any dividends shall be declared
or paid upon or set apart for the Common Stock or any other stock of
the Company not having preference over the Preference Stock as to
payment of dividends. Such dividends shall be cumulative so that if
for any dividend period or periods dividends shall not have been
paid or declared and set apart for payment upon all outstanding
Preference Stock at the rates determined for the respective series,
the deficiency shall be fully paid, or declared and set apart for
payment before any dividends shall be declared or paid upon the
Common Stock or any other stock of the Corporation not having
preference over the Preference Stock as to payment of dividends.
Dividends shall not be declared and set apart for payment, or paid,
on the Preference Stock of any one series, for any dividend period,
unless dividends have been or are contemporaneously declared and set
apart for payment or paid on the Preference Stock of all series for
all dividend periods terminating on the same or an earlier date.
(B) When full cumulative dividends as aforesaid upon the
Preference Stock of all series then outstanding for all past
dividend periods and for the current dividend periods shall have
been paid or declared and set apart for payment, the Board of
Directors may declare dividends on the Common Stock or any other
stock over which the Preference Stock has a preference as to payment
of dividends, and no holders of any series of Preference Stock as
such shall be entitled to share therein.
(C) The shares of Preference Stock shall be subordinate to the
Preferred Stock and the Class A Preferred Stock but in preference to
the Common Stock upon any dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary. Upon any such
dissolution, liquidation or winding up of the Corporation whether
voluntary or involuntary, the holders of Preference Stock of each
series, without any preference of the shares of any series of
Preference Stock over the shares of any other series of Preference
Stock, shall be entitled to receive out of the assets of the
Corporation, whether capital, surplus or other, before any
distribution of the assets to be distributed shall be made to the
holders of Common Stock or of any other stock not having preference
as to assets over the Preference Stock, the amount determined to be
payable on the shares of such series in the event of voluntary or
involuntary liquidation, as the case may be. In case the assets
shall not be sufficient to pay in full the amounts determined to be
payable on all shares of Preference Stock in the event of voluntary
or involuntary liquidation, as the case may be, then the assets
available for such payment shall be distributed ratably among the
holders of the Preference Stock of all series in accordance with the
amounts determined to be payable on the shares of each series, in
the event of voluntary or involuntary liquidation, as the case may
be, in proportion to the full preferential amounts to which they are
respectively entitled. After payment to the holders of the
Preference Stock of the full preferential amounts hereinbefore
provided for, the holders of the Preference Stock as such shall have
no right or claim to any of the remaining assets of the Corporation,
either upon any distribution of such assets or upon dissolution,
liquidation or winding up, and the remaining assets to be
distributed, if any, upon a distribution of such assets or upon
dissolution, liquidation or winding up, may be distributed, subject
to the laws of the State of Ohio and the Articles of Incorporation,
among the holders of the Common Stock or of any other stock over
which the Preference Stock has preference as to assets. Without
limiting the right of the Corporation to distribute its assets or to
dissolve, liquidate or wind up in connection with any sale, merger,
or consolidation, the sale of all or substantially all the property
of the Corporation to, or the merger or consolidation of the
Corporation into or with, any other corporation shall not be deemed
to be a distribution of assets or a dissolution, liquidation or
winding up for the purposes of this paragraph.
(D) At the option of the Board of Directors of the
Corporation, the Corporation may redeem any series of Preference
Stock determined to be redeemable, or any part of any series, at any
time at the redemption price determined for such series; provided,
however, that not less than thirty nor more than sixty days previous
to the date fixed for redemption a notice of the time and place
thereof shall be given to the holders of record of the Preference
Stock so to be redeemed, by mail or publication, in such manner as
may be prescribed by the Code of Regulations of the Corporation or
by resolution of the Board of Directors; and, provided, further,
that in every case of redemption of less than all of the outstanding
shares of any one series of Preference Stock, the shares of such
series to be redeemed shall be chosen by lot in such manner as may
be prescribed by resolution of the Board of Directors. At any time
after notice of redemption has been given in the manner prescribed
by the Code of Regulations of the Corporation or by resolution of
the Board of Directors to the holders of stock so to be redeemed,
the Corporation may deposit, or may cause its nominee to deposit,
the aggregate redemption price with some bank or trust company named
in such notice, payable on the date fixed for redemption as
aforesaid and in the amounts aforesaid to the respective orders of
the holders of the shares so to be redeemed, on endorsement to the
Corporation or its nominee, or otherwise, as may be required, and
upon surrender of the certificates for such shares. Upon the
deposit of said money as aforesaid, or, if no such deposit is made,
upon said redemption date (unless the Corporation defaults in making
payment of the redemption price as set forth in such notice), such
holders shall cease to be stockholders with respect to said shares
and from and after the making of said deposit, or, if no such
deposit is made, after the redemption date (the Corporation not
having defaulted in making payment of the redemption price as set
forth in such notice), the said holders shall have no interest in or
claim against the Corporation, or its nominee, with respect to said
shares, but shall be entitled only to receive said monies on and
after the date fixed for redemption as aforesaid from said bank or
trust company, or if no such deposit is made, or if such deposit has
been made and thereafter paid over to the Corporation as hereafter
provided, from the Corporation, without interest thereon, upon
endorsement, if required, and surrender of the certificates as
aforesaid.
If such deposit shall be made by a nominee of the Corporation
as aforesaid, such nominee shall upon such deposit become the owner
of the shares with respect to which such deposit was made and
certificates of stock may be issued to such nominee in evidence of
such ownership.
In case the holder of any such Preference Stock shall not,
within six years after said deposit, claim the amount deposited as
above stated for the redemption thereof, the Depositary shall upon
demand pay over to the Corporation such amounts so deposited and the
Depositary shall thereupon be relieved from all responsibility to
the holder thereof.
Nothing herein contained shall limit any legal right of the
Corporation to purchase any shares of the Preference Stock.
(E) So long as any shares of the Preference Stock are
outstanding, no amendment to the Articles of Incorporation shall be
adopted without the affirmative vote of the holders of at least
66-2/3% of the shares of Preference Stock outstanding at the time of
the adoption of such amendment, which would either (a) create any
class of shares preferred as to dividends or assets over the
Preference Stock, or (b) change the designations, preferences,
qualifications, limitations, restrictions or other special or
relative rights of the then outstanding Preference Stocks, provided,
however, nothing in this paragraph contained shall authorize the
adoption of any amendment of the Articles of Incorporation by the
vote of the holders of a less number of shares of Preference Stock,
or of any other class of stock, or of all classes of stock, than is
required for the adoption of such amendment by the laws of the State
of Ohio, at that time applicable thereto.
COMMON STOCK
There shall be a class of stock of the Corporation designated
Common Stock and each share of Common Stock shall be equal to every
other share of said stock in every respect.
VOTING POWERS AND OTHER RIGHTS
At all elections of directors of the Corporation, and on all
other matters, except on matters in respect of which the laws of the
State of Ohio shall provide that all shareholders shall have the
right to vote irrespective of whether such right has been
relinquished by any of such shareholders and except as otherwise
herein provided, the holders of the Common Stock shall have the
exclusive right to vote.
Whenever and as often as four quarterly dividends payable on
the Preferred Stock or the Class A Preferred Stock of any series
shall be in default, in whole or in part, the holders of the
Preferred Stock and the Class A Preferred Stock shall have the
exclusive right, voting separately from any other class of stock and
as a single class, each share of Preferred Stock being counted as
one and each share of Class A Preferred Stock being counted as
one-quarter, to vote for and to elect the smallest number of
directors which shall constitute a majority of the then authorized
number of directors of the Corporation, and, in all matters with
respect to the governing of the affairs of the Corporation other
than the election of directors, each share of the Preferred Stock
shall be counted as one and each share of the Class A Preferred
Stock shall be counted as one-quarter so that each holder of one or
more shares of Preferred Stock held by him, and each holder of one
or more shares of Class A Preferred Stock shall be entitled to
one-quarter vote for each such share of stock held by him.
Whenever and as often as six quarterly dividends payable on the
Preference Stock of any series shall be in default, in whole or in
part, the holders of the Preference Stock, subject to any right of
the holders of the Preferred Stock and the Class A Preferred Stock
to elect a majority of directors as aforesaid, shall have the
exclusive right, voting separately from any other class of stock and
as a class, each share of Preference Stock being counted as one, to
vote for and to elect two directors of the Corporation, and, in all
matters with respect to the governing of the affairs of the
Corporation other than the election of directors, each share of the
Preference Stock shall be counted as one so that each holder of one
or more shares of Preference Stock shall be entitled to one vote for
each such share of stock held by him.
In the event of defaults entitling the Preferred Stock and
Class A Preferred Stock and/or the Preference Stock to vote as
aforesaid, the holders of the Common Stock shall have the exclusive
right, voting separately and as a class, to vote for and to elect
the number of directors which shall not be required to be elected by
the Preferred Stock and Class A Preferred Stock and/or the
Preference Stock, as the case may be, and, in all matters other than
the election of directors, each holder of Common Stock shall be
entitled to one vote for each such share of stock held by him. The
voting rights of the holders of the Preferred Stock and the Class A
Preferred Stock, taken as a single class, or of the holders of the
Preference Stock, as the case may be, shall cease when all defaults
in the payment of dividends on their respective class of stock shall
have been cured, and such dividends shall be declared and paid out
of any funds legally available therefore as soon as reasonably
practicable. Whenever the right shall have accrued to the holders
of the Preferred Stock and the Class A Preferred Stock to elect
directors, voting separately from any other class of stock and as a
class, the terms of office, as directors, of all persons who may be
directors of the Corporation at the time, other than persons who
were elected as directors by the holders of the Preference Stock as
aforesaid and who constitute less than a majority of the Board of
Directors, shall terminate upon the election of a majority of the
Board of Directors by the holders of the Preferred Stock and the
Class A Preferred Stock, and whenever the right shall have accrued
to the holders of the Preference Stock to elect two directors,
voting separately from any other class of stock and as a single
class, the terms of office, as directors, of all other than persons
who were elected as directors by the holders of the Preferred Stock
and the Class A Preferred Stock as aforesaid, shall terminate upon
the election of two directors by the holders of the Preference
Stock. In either case, if the holders of the Common Stock shall not
then have elected the remaining directors of the Corporation, the
directors of the Corporation in office just prior to the election of
a majority of the Board of Directors by the holders of the Preferred
Stock and the Class A Preferred Stock and/or the election of two
directors by the holders of the Preference Stock, as the case may
be, shall elect the remaining directors of the Corporation.
Thereafter so long as the majority of the Board of Directors is
being elected by the holders of the Preferred Stock and the Class A
Preferred Stock and/or two directors are being elected by the
holders of the Preference Stock, as the case may be, the remaining
directors, whether elected by directors as aforesaid or by the
holders of the Common Stock, shall continue in office until their
successors are elected by the holders of the Common Stock. Any
vacancy in the Board of Directors occurring during any period that
the Preferred Stock and Class A Preferred Stock and/or the
Preference Stock shall have representatives on the board shall be
filled by a majority vote of the remaining directors representing
the class or classes of stock theretofore represented by the
director causing the vacancy or by the remaining director
representing such class or classes if there be but one. Upon the
termination of the exclusive right of the holders of the Preferred
Stock and Class A Preferred Stock to elect a majority of the
directors of the Corporation and/or the exclusive right of the
holders of the Preference Stock to elect two directors, as the case
may be, the terms of office of all the directors of the Corporation
representing the stockholders whose right to elect directors has
terminated shall terminate and their successors may be elected by
the vote of a majority of the remaining directors who represent the
holders of the Common Stock.
Whenever the right shall have accrued to the holders of the
Preferred Stock and Class A Preferred Stock and/or the holders of
the Preference Stock to elect directors as aforesaid, it shall be
the duty of the president, a vice-president or the secretary of the
Corporation forthwith to call and cause notice to be given to the
shareholders entitled to vote at a meeting to be held at such time
as the Corporation's officers may fix, not less than forty-five nor
more than sixty days after the accrual of such right, for the
purpose of electing directors. The notice so given shall be mailed
to each holder of record of the Preferred Stock or Class A Preferred
Stock and/or each holder of the Preference Stock, as the case may
be, at his last known address appearing on the books of the
Corporation. If the notice is to the holders of the Preferred Stock
and the Class A Preferred Stock, it shall set forth, among other
things, (i) that by reason of the fact that dividends payable on the
Preferred Stock or Class A Preferred Stock are in default in an
amount equal to four full quarterly payments or more per share, the
holders of the Preferred Stock and Class A Preferred Stock, voting
separately as a single class, have the right to elect the smallest
number of directors necessary to constitute a majority of the full
Board of Directors of the Corporation, (ii) that any holder of the
Preferred Stock and Class A Preferred Stock has the right, at any
reasonable time, to inspect, and make copies of, the list or lists
of holders of the Preferred Stock and Class A Preferred Stock
maintained at the principal office of the Corporation or at the
office of any Transfer Agent of the Preferred Stock or Class A
Preferred Stock, and (iii) either the entirety of the next following
paragraph or the substance thereof with respect to the number of
shares of the Preferred Stock and Class A Preferred Stock required
to be represented at any meeting, or adjournment thereof, called for
the election of directors of the Corporation. If the notice is to
the holders of the Preference Stock, it shall set forth, among other
things, (i) that by reason of the fact that dividends payable on the
Preference Stock are in default in an amount equal to six full
quarterly payments or more per share, the holders of the Preference
Stock, voting separately as a class, have the right to elect two
directors of the Corporation, (ii) that any holder of the Preference
Stock has the right, at any reasonable time, to inspect, and make
copies of, the list or lists of holders of the Preference Stock
maintained at the principal office of the Corporation or at the
office of any Transfer Agent of the Preference Stock, and
(iii) either the entirety of the next following paragraph of the
substance thereof with respect to the number of shares of the
Preference Stock required to be represented at any meeting, or
adjournment thereof, called for the election of directors of the
Corporation.
At the first meeting of stockholders held for the purpose of
electing directors during such time as the holders of the Preferred
Stock and Class A Preferred Stock and/or the holders of the
Preference Stock shall have the special right to elect directors,
the presence in person or by proxy of the holders of a majority of
the outstanding Common Stock shall be required to constitute a
quorum of such class for the election of directors, the presence in
person or by proxy of the holders of a majority of the outstanding
Preferred Stock and Class A Preferred Stock, taken together as a
single class, shall be required to constitute a quorum of such class
for the election of directors. In the absence of a quorum of any
class of stockholders (the holders of the Preferred Stock and
Class A Preferred Stock being treated as a single class), no
election of directors by such class of stockholders shall be held.
If because of the preceding sentence the holders of the Preferred
Stock and Class A Preferred Stock and/or the holders of the
Preference Stock are not able to exercise their right to elect
directors as provided herein, a majority of the holders of either of
such classes of stockholders (the holders of the Preferred Stock and
Class A Preferred Stock being treated as a single class) who have
not been able to exercise their right to elect directors as
aforesaid, which majority is present in person or by proxy shall
have power to adjourn the election of the directors who will
represent the holders of the Preferred Stock and the Class A
Preferred Stock and/or the holders of the Preference Stock, as the
case may be, to a date not less than fifteen nor more than fifty
days from the giving of the notice of such adjourned meeting
hereinafter provided for; and provided, further, that at such
adjourned meeting, as applicable, the presence in person or by proxy
of the holders of 35% of the outstanding Preferred Stock and Class A
Preferred Stock, taken together as a single class, shall be required
to constitute a quorum of such class for the election of directors
and the presence in person or by proxy of the holders of 35% of the
outstanding Preference Stock shall be required to constitute a
quorum of such class for the election of directors. For the
purposes of this paragraph, in determining whether a quorum exists,
each share of Preferred Stock shall be counted as one, each share of
Class A Preferred Stock shall be counted as one-quarter, each share
of Preference Stock shall be counted as one and each share of Common
Stock shall be counted as one. In the event such first meeting of
stockholders shall be so adjourned, it shall be the duty of the
president, a vice-president or the secretary of the Corporation,
within ten days from the date on which such first meeting shall have
been adjourned, to cause notice of such adjourned meeting to be
given to the shareholders entitled to vote thereat, such adjourned
meeting to be held not less than fifteen days nor more than fifty
days from the giving of such second notice. Such second notice
shall be given in the form and manner hereinabove provided for with
respect to the notice required to be given of such first meeting of
stockholders, and shall further set forth, as applicable, that a
quorum of the holders of the Preferred Stock and Class A Preferred
Stock was not present at such first meeting and that the holders of
35% of the outstanding Preferred Stock and Class A Preferred Stock,
taken together as a single class, each share of Preferred Stock
being counted as one-quarter, shall be required to constitute a
quorum of such class for the election of directors at such adjourned
meeting and/or that a quorum of the holders of the Preference Stock
was not present at such first meeting and that the holders of 35% of
the outstanding Preference Stock shall be required to constitute a
quorum of such class for the election of directors at such adjourned
meeting. If the requisite quorum of holders of the Preferred Stock
and Class A Preferred Stock, taken together as a single class,
and/or the requisite quorum of holders of the Preference Stock, as
the case may be, shall not be present at said adjourned meeting,
then no election of directors by the class not mustering a quorum
shall be held and the directors of the Corporation otherwise in
office (taken into account the actions, if any, properly taken at
such meeting) shall remain in office until the next Annual Meeting
of the Corporation, or special meeting in lieu thereof, and until
their successors shall have been elected and shall qualify. Neither
such first meeting nor such adjourned meeting shall be held on a
date within sixty days of the date of the next Annual Meeting of the
Corporation or special meeting in lieu thereof. At each Annual
Meeting of the Corporation, or special meeting in lieu thereof, held
during such time as the holders of the Preferred Stock and Class A
Preferred Stock, voting separately as a single class, shall have the
right to elect a majority of the Board of Directors and/or the
holders of the Preference Stock shall have the right to elect two
directors, the foregoing provisions of this paragraph shall govern
such Annual Meeting, or special meeting in lieu thereof, as if said
Annual Meeting or special meeting were the first meeting of
stockholders held for the purpose of electing directors after such
rights of the holders of the Preferred Stock and Class A Preferred
Stock and/or the holders of the Preference Stock should have
accrued, with the exception that if, at any adjourned Annual
Meeting, or special meeting in lieu thereof, a quorum of 35% of the
outstanding Preferred Stock and Class A Preferred Stock taken
together as a single class and/or a quorum of 35% of the outstanding
Preference Stock is not present in person or by proxy, all the
directors, other than those elected by the holders of the Preferred
Stock and Class A Preferred Stock taken together as a single class
or by the holders of the Preference Stock (as a result of either the
holders of the Preferred Stock and Class A Preferred Stock or the
holders of the Preference Stock mustering a quorum), shall be
elected by a vote of the holders of a majority of the Common Stock
of the Corporation present or represented at the meeting.
At all elections of directors of the Corporation, each
shareholder entitled to vote for directors shall have the right to
cumulate his shares and to give to one candidate for whom he may
vote as many votes as the number of directors to be elected by the
holders of the class of stock held by such shareholder multiplied by
the number of his shares equals (with each share, in the case of
Class A Preferred Stock, being counted as one-quarter share), or to
distribute them on the same principle among as many such candidates
as he sees fit.
Established Series of Preferred Stock
Without limitation of the foregoing authority conferred upon
the Board of Directors, there shall be series of Preferred Stock
designated as 4.40%, 3.90%, 4.56%, 4.44%, 7.24%, 7.36%, 8.20%, and
8.45% Preferred Stock.
4.40% Preferred Stock
The rights and preferences of the series 4.40% Preferred Stock
in those respects in which the shares thereof may vary from the
shares of other series shall be as follows:
(a) The rate of dividend shall be 4.40% per annum and the
dividend payment dates shall be the first days of January,
April, July and October in each year;
(b) The price at which shares may be redeemed shall be $108
per share, plus accrued dividends to the date of
redemption;
(c) The amount payable in event of involuntary liquidation
shall be $100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation shall
be the redemption price in effect at the date of such
liquidation;
(e) They shall not be, by their terms, convertible or
exchangeable; and
(f) There shall not be any sinking fund requirements for the
purchase or redemption of the 4.40% Preferred Stock.
3.90% Preferred Stock
The rights and preferences of the series of 3.90% Preferred
Stock in those respects in which the shares thereof may vary from
the shares of the other series shall be as follows:
(a) The rate of dividend shall be 3.90% per annum and the
dividend payment dates shall be the first days of January,
April, July and October in each year;
(b) The price at which shares may be redeemed shall be
$103.625 per share, plus accrued dividends to the date of
redemption;
(c) The amount payable in the event of involuntary liquidation
shall be $100 per share, plus accrued dividends;
(d) The amount payable in the event of voluntary liquidation
shall be the redemption price in effect at the date of
such liquidation;
(e) They shall not be, by their terms, convertible or
exchangeable; and
(f) There shall not be any sinking fund requirements for the
purchase or redemption of the 3.90% Preferred Stock.
4.56% Preferred Stock
The rights and preferences of the series of 4.56% Preferred
Stock in those respects in which the shares thereof may vary from
the shares of other series shall be as follows:
(a) The rate of dividend shall be 4.56% per annum and the
dividend payment dates shall be the first days of March,
June, September and December in each year;
(b) The price at which shares may be redeemed shall be
$103.375 per share, plus accrued dividends to the date of
redemption;
(c) The amount payable in the event of involuntary liquidation
shall be $100 per share, plus accrued dividends;
(d) The amount payable in the event of voluntary liquidation
shall be the redemption price in effect at the date of
such liquidation;
(e) The shares shall not be, by their terms, convertible or
exchangeable; and
(f) There shall not be any sinking fund requirements for the
purchase or redemption of the 4.56% Preferred Stock.
4.44% Preferred Stock
The rights and preferences of the series of 4.44% Preferred
Stock in those respects in which the shares thereof may vary from
the shares of other series shall be as follows:
(a) The rate of dividend shall be 4.44% per annum and the
dividend payment dates shall be the first days of January,
April, July and October in each year;
(b) The price at which shares may be redeemed shall be $103.50
per share plus accrued dividends to the date of
redemption;
(c) The amount payable in the event of involuntary liquidation
shall be $100 per share, plus accrued dividends;
(d) The amount payable in the event of voluntary liquidation
shall be the redemption price in effect at the date of
such liquidation;
(e) The shares shall not be, by their terms, convertible or
exchangeable; and
(f) There shall not be any sinking fund requirements for the
purchase or redemption of the 4.44% Preferred Stock.
7.24% Preferred Stock
The rights and preferences of the series of 7.24% Preferred
Stock in those respects in which the shares thereof may vary from
the shares of other series shall be as follows:
(a) The rate of dividend shall be 7.24% per annum and the
dividend payment dates shall be the twenty-ninth days of
March, June, September and December in each year;
(b) The price at which shares may be redeemed shall be $101.98
per share, plus accrued dividends in each case to the date
of redemption;
(c) The amount payable in the event of involuntary liquidation
shall be $100 per share, plus accrued dividends;
(d) The amount payable in the event of voluntary liquidation
shall be the redemption price in effect at the date of
such liquidation;
(e) The shares shall not be, by their terms, convertible or
exchangeable; and
(f) There shall not be any sinking fund requirements for the
purchase or redemption of the 7.24% Preferred Stock.
7.36% Preferred Stock
The rights and preferences of the 7.36% Preferred Stock in
those respects in which the shares thereof may vary from the shares
of other series shall be as follows:
(a) The rate of dividend shall be 7.36% per annum and the
dividend payment dates shall be the fourteenth days of
March, June, September and December in each year;
(b) The price at which shares may be redeemed shall be $102.84
per share if the date of redemption is after March 1, 1988
and on or prior to March 1, 1993, and $101.74 per share
if the date of redemption is after March 1, 1993, plus
accrued dividends in each case to the date of redemption;
(c) The amount payable in the event of involuntary liquidation
shall be $100 per share, plus accrued dividends;
(d) The amount payable in the event of voluntary liquidation
shall be the redemption price in effect at the date of
such liquidation;
(e) The shares shall not be, by their terms, convertible or
exchangeable; and
(f) There shall not be any sinking fund requirements for the
purchase or redemption of the 7.36% Preferred Stock.
8.20% Preferred Stock
The rights and preferences of the 8.20% Preferred Stock in
those respects in which the shares thereof may vary from the shares
of other series shall be as follows:
(a) The rate of dividend shall be 8.20% per annum and the
dividend payment dates shall be the twenty-sixth days of
February, May, August and November in each year;
(b) The price at which shares may be redeemed shall be $103.30
per share if the date of redemption is after February 1,
1989, and on or prior to February 1, 1994, and $102.07 per
share if the date of redemption is after February 1, 1994,
plus accrued dividends in each case to the date of
redemption;
(c) The amount payable in the event of involuntary liquidation
shall be $100 per share, plus accrued dividends;
(d) The amount payable in the event of involuntary liquidation
shall be the redemption price in effect at date of such
liquidation;
(e) The shares shall not be, by their terms, convertible or
exchangeable; and
(f) There shall not be any sinking fund requirements for the
purchase or redemption of the 8.20% Preferred Stock.
8.45% PREFERRED STOCK
The rights and preferences of the 8.45% Preferred Stock, in
those respects in which the series thereof may vary from the shares
of other series, shall be as follows:
(a) The rate of dividend shall be 8.45% per share per annum
and the dividend payment dates shall be the sixteenth day
of March, June, September and December, in each year,
commencing December 16, 1991, provided that accumulated
and unpaid dividends accrued for any prior quarterly
period may be paid at any time, and provided that with
respect to the dividend payable on December 16, 1991, the
first day of the dividend period with respect to which
such dividend is paid shall be the day of the actual
issuance of the 8.45% Preferred Stock;
(b) The amount payable in the event of involuntary liquidation
shall be $100 per share, plus accrued dividends;
(c) The amount payable in the event of voluntary liquidation
shall be $100 per share, plus accrued dividends;
(d) The shares shall not be, by their terms, convertible or
exchangeable;
(e) The requirements for the mandatory redemption of shares
of the 8.45% Preferred Stock shall be as follows:
(i) On September 16, 1997 and on each September 16
thereafter through and including September 16, 2001 (each a
"Mandatory Redemption Date") the Corporation shall redeem out
of funds legally available therefore 50,000 shares of the 8.45%
Preferred Stock (or the number of shares then outstanding if
less than 50,000) at a redemption price equal to $100 per share
plus accrued dividends to the date of redemption. Whenever on
any such Mandatory Redemption Date funds legally available
therefore are insufficient to permit the Corporation to redeem
the full number of shares of 8.45% Preferred Stock so required
to be redeemed on such date, the Corporation shall apply to
such redemption the proportion of such legally available funds
which bears the same ratio to the amount required for the
redemption of the full number of such shares as the total
amount of such legally available funds bears to the total
amount required for the purchase or redemption of shares of all
classes of Preferred Stock and of any kind of stock over which
the Preferred Stock does not have preference as to the payment
of dividends and as to assets which the Corporation is then
obligated to redeem or purchase, and the number of shares of
8.45% Preferred Stock required to be redeemed pursuant to the
previous sentence hereof on the next succeeding Mandatory
Redemption Date shall be increased by an amount equal to the
difference between the number of shares of 8.45% Preferred
Stock so redeemed and the number of such shares that would have
been redeemed had there been sufficient funds legally available
therefore.
(ii) No redemption, acquisition or purchase of any stock
ranking equally with or junior to the 8.45% Preferred Stock
shall occur during any period when the mandatory redemption of
shares described in paragraph (i) of this subsection (e) is in
arrears, except for payments of arrears through redemptions of
shares of classes of Preferred Stock and of any kind of stock
over which the Preferred Stock does not have preference as to
the payment of dividends and as to assets which the Company is
then obligated to redeem or purchase; and
(f) All redemptions of shares of the 8.45% Preferred Stock
pursuant to subsection (e) hereof will be made as nearly
as practicable pro rata among the holders of the 8.45%
--------
Preferred Stock then outstanding, if the holders of all
outstanding shares of 8.45% Preferred Stock shall so
agree.
Established Series of Class A Preferred Stock
Without limitation of the foregoing authority conferred
upon the Board of Directors, there shall be a series of Class A
Preferred Stock designated as 7.75% Class A Preferred Stock.
7.75% Class A Preferred Stock
The rights and preferences of the 7.75% Class A Preferred
Stock in those respects in which the series thereof may vary from
the shares of other series shall be as follows:
(a) The rate of dividend shall be 7-3/4% per share per annum
and the dividend payment dates shall be the first days of
January, April, July and October in each year, commencing
July, 1993, provided that accumulated and unpaid dividends
accrued for any prior quarterly period may be paid at any
time and dividends for the first period shall begin to
accrue from the date of original issuance. The amount of
the dividend payable for any quarterly period shall be
computed on the basis of a 360-day year of twelve 30-day
months;
(b) The 7-3/4% Class A Preferred Stock is not redeemable on
or before April 1, 1998. After April 1, 1998, the shares
shall be redeemable at a price of $25 per share plus
accumulated and unpaid dividends;
(c) The amount payable in the event of an involuntary
liquidation shall be $25 per share, plus accumulated and
unpaid dividends;
(d) The amount payable in the event of a voluntary
liquidation, dissolution or winding up of the Corporation
shall be $25 per share, plus accumulated and unpaid
dividends;
(e) The 7-3/4% Class A Preferred Stock shall not be, by its
terms, convertible; and
(f) There shall not be any sinking fund requirements for the
purchase or redemption of the 7-3/4% Class A Preferred
Stock.
I.C.1
-----
___________________________________________________
___________________________________________________
AMENDMENT NO. 7
dated as of October 12, 1994
to
PARTICIPATION AGREEMENT
dated as of March 16, 1987, as
amended by Amendment No. 1 thereto
dated as of September 1, 1987,
Amendment No. 3 thereto
dated as of May 16, 1988,
Amendment No. 4 thereto dated as of
November 1, 1991
Amendment No. 5 thereto dated
as of November 24, 1992, and
Amendment No. 6 thereto dated
as of January 12, 1993
among
PERRY ONE ALPHA LIMITED PARTNERSHIP,
as Owner Participant
PNPP FUNDING CORPORATION,
PNPP II FUNDING CORPORATION,
THE FIRST NATIONAL BANK OF BOSTON,
in its individual capacity and
as Owner Trustee under a Trust Agreement
dated as of March 16, 1987,
with the Owner Participant,
THE BANK OF NEW YORK,
as Indenture Trustee
and OHIO EDISON COMPANY,
as Lessee
___________________________________________________
___________________________________________________
THIS AMENDMENT NO. 7 dated as of October 12, 1994
("Amendment No. 7") to the Participation Agreement dated as
---------------
of March 16, 1987, as amended by Amendment No. 1 thereto
dated as of September 1, 1987, Amendment No. 3 thereto
dated as of May 16, 1988, Amendment No. 4 thereto dated as
of November 1, 1991 Amendment No. 5 thereto, dated as of
November 24, 1992 ("Amendment No. 5"), and Amendment No. 6
thereto, dated as of January 12, 1993 ("Amendment No. 6"),
and as in effect on the date hereof (the "Participation
-------------
Agreement")1/, among the Owner Participant identified on
- ---------
the cover page hereof (the "Owner Participant"), PNPP
-----------------
FUNDING CORPORATION, a Delaware corporation ("Funding
-------
Corporation"), PNPP II FUNDING CORPORATION, a Delaware
- -----------
corporation ("New Funding Corporation"), THE FIRST NATIONAL
-----------------------
BANK OF BOSTON, a national banking association, in its
individual capacity ("FNB") and as Owner Trustee (the '
---
"Owner Trustee") under a Trust Agreement, dated as of March
-------------
16, 1987, with the Owner Participant, THE BANK OF NEW YORK
(formerly Irving Trust Company), a New York banking
corporation, in its individual capacity ("Bank of New
-----------
York") and as Indenture Trustee (the "Indenture Trustee")
- ---- -----------------
under a Trust Indenture, Mortgage, Security Agreement and
Assignment of Facility Lease, dated as of March 16, 1987,
as supplemented and amended by the Supplemental Indenture
No. 1, dated as of September 1, 1987, Supplemental
Indenture No. 2 dated as of November 1, 1991 and
Supplemental Indenture No. 3 dated as of January 1, 1993
(the "Indenture"), with the Owner Trustee, and OHIO EDISON
---------
COMPANY, an Ohio corporation (the "Lessee"),
------
W I T N E S S E T H :
- -------------------
WHEREAS, the Owner Participant, Funding
Corporation, New Funding Corporation, the Owner Trustee,
the Indenture Trustee and the Lessee have previously
entered into the Participation Agreement; and
WHEREAS, Funding Corporation desires to cease to
be a party to the Participation Agreement; and
WHEREAS, Section 3(d) of the Facility Lease
provides for an adjustment to Basic Rent and to the
- ------------------------
1. A document entitled Amendment No.2, a copy of which is
dated as of March 15, 1988, to the Participation Agreement
was not entered into or executed by the parties.
schedules of Casualty Values, Special Casualty Values and
Modified Special Casualty Values in order to preserve the
Net Economic Return of the Owner Participant in the event,
among other things, of any change ("Tax Rate Change") in
the Code enacted into law after the Closing Date and prior
to March 19, 2007, which results in the change in the
marginal federal income tax rate (the "Tax Rate")
applicable to corporations differing from the rate assumed
in the Pricing Assumptions as in effect on the Closing
Date; and
WHEREAS, Section 2(e) of the Participation
Agreement provides that, subject to the satisfaction of the
conditions set forth in Sections 2(d) and 11(c) of the
Participation Agreement, the Lessee and the Lessor shall
reoptimize the amortization schedules for the Outstanding
Fixed Rate Notes, in accordance with and in the manner
contemplated by the Closing Letter, upon the occurrence of
a Tax Rate Adjustment; and
WHEREAS, Section 11(b)(1) of the Code, as amended
by the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-
66), generally effective for tax years beginning on or
after January 1, 1993, increases the Tax Rate assumed to be
applicable to the Owner Participant in the Pricing
Assumptions from 34% to 35%; and
WHEREAS, Section 10.2(ii) of the Indenture
provides, among other things, that, upon receipt of a
written instruction from the Lessee and the Owner Trustee,
the Indenture Trustee shall consent to certain amendments
to the Facility Lease; and
WHEREAS, the Owner Trustee and the Lessee intend
to execute Amendment No. 5 to the Facility Lease, dated as
of October 12, 1994 ("Lease Amendment No. 5"), to amend
---------------------
certain provisions thereof, Appendix A thereto and certain
schedules thereof; and
WHEREAS, in order to carry out the provisions of
Section 2(e) of the Participation Agreement and such
Section 3(d) of the Facility Lease, the Owner Participant,
Funding Corporation, New Funding Corporation, the Owner
Trustee, the Indenture Trustee and the Lessee wish to amend
the Participation Agreement to establish and preserve the
pricing file, which incorporates the Assumptions and the
new 35% Tax Rate and other assumptions created by the Owner
Participant in connection with the Tax Rate Change, and
reoptimize the amortization schedules for the Outstanding
Fixed Rate Notes by entering into this Amendment No. 7.
NOW THEREFORE, in consideration of the premises
and of other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
SECTION 1. Definitions.
Except as otherwise amended or defined herein and
in the recitals, capitalized terms used herein shall have
the respective meanings assigned to such terms in Appendix
A to the Participation Agreement.
SECTION 2. Amendments.
(a) Section 2(c) Releveraging. Section 2(c) of
-------------------------
the Participation Agreement is amended by inserting before
the end of the first sentence thereof after the phrase "Net
Economic Return" and before the period the following
phrase:
"; provided that in order to determine the amount
--------
of the recourse loans to the Lessor the Owner
Participant will prepare a pricing file which
preserves Net Economic Return and incorporates
all of the Assumptions and the Tax Rate
Assumptions."
(b) Section 2(d) Refunding of Notes. Section
-------------------------------
2(d) of the Participation Agreement is amended by inserting
before the end of the penultimate sentence thereof after
the phrase "Net Economic Return" the following phrase:
"; provided that in order to determine the
--------
foregoing the Owner Participant will prepare a
pricing file which preserves Net Economic Return
and incorporates all of the Assumptions and the
Tax Rate Assumptions."
(c) Section 11(c) Conditions to Releveraging and
--------------------------------------------
Refunding. Section 11(c) of the Participation Agreement is
- ---------
amended as follows:
(i) by deleting the heading "Conditions to
Releveraging or Refunding." and inserting in lieu
thereof "Conditions to Releveraging, Refunding or
Reoptimization."; and
(ii) by deleting the phrase "Releveraging Date
or Refunding Date" each time it appears in clauses (4)
and (6) of such Section and inserting in lieu thereof
the phrase "Releveraging Date, Refunding Date or
Reoptimization Date" throughout such Section; and
(iii) by inserting in the first paragraph
therein before the first parenthetical and after the
phrase "of the following conditions precedent" the
following new parenthetical:
"(but in the case of a reoptimization, only the
conditions precedent specified in clauses (3),
(4), (6), (7) and (9) below)".
(d) Section 18 Notices, etc. Section 18(iv) of
------------------------
the Participation Agreement is amended by inserting at the
end thereof before the semicolon after the phrase
"Attention: President" the following phrase:
"and if to New Funding Corporation, at c/o J.H.
Management Corp., P.O. Box 4024, Boston, Massachusetts
02101-4024, Attention: Nancy D. Smith, President".
(e) Appendix A. Appendix A to the Participation
----------
Agreement is amended as follows:
(i)by restating the definition of "Funding
Corporation" to read as follows:
"`Funding Corporation' shall mean, as of the
Effective Date, as such term is defined in
Section 6(a) of Amendment No. 6 to the
Participation Agreement, New Funding
Corporation."
(ii)by inserting in the appropriate alphabetical
order the following new definitions:
"`Amendment No. 7 to the Participation Agreement'
shall mean Amendment No. 7, dated as of October
12, 1994, to the Participation Agreement, among
the Owner Participant, Funding Corporation, New
Funding Corporation, the Owner Trustee, the
Indenture Trustee and the Lessee."
"`Closing Letter' shall have the meaning set
forth in Section 2(c) of the Participation
Agreement, a copy of which is attached as
Exhibit D to Amendment No. 7 to the Participation
Agreement."
"`Reoptimization Date' shall mean a date on which
a reoptimization pursuant to Section 2(e) of the
Participation Agreement is to be effected."
"`Tax Rate Adjustment' shall have the meaning set
forth in Section 2(c) of the Participation
Agreement."
"`Tax Rate Adjustment Date' shall have the
meaning assigned to such term in Section 4 of
Amendment No. 7 to the Participation Agreement."
"`Tax Rate Assumptions' shall mean the tax rate
change assumptions set forth on Schedule 1 to
Amendment No. 7 to the Participation Agreement."
"`Tax Rate Change' shall have the meaning set
forth in Section 3(d) of the Facility Lease."
"`Tax Rate Change Transaction Expenses' shall
mean the amount assigned to such term in Schedule
1 to Amendment No. 7 to the Participation
Agreement."
(f) Parties In Interest. The parties agree that
-------------------
Funding Corporation shall cease to be a party to the
Participation Agreement and shall have no further rights,
obligations or interest, except as otherwise provided in
Section 13 of the Participation Agreement, thereunder. The
Participation Agreement is hereby amended generally so that
all references to Funding Corporation shall be deemed to
refer to New Funding Corporation, to the extent that such
references relate to the rights, obligations or interest of
Funding Corporation subsequent to the "Effective Date", as
such term is defined in Section 6(a) of Amendment No. 6 to
the Participation Agreement.
SECTION 3. Implementation.
(a) Forms. The forms of Lease Amendment No. 4 and the
-----
Eighth Amendment, dated as of October 12, 1994, to the
Reimbursement Agreement, as amended heretofore, among the
Lessee, The Fuji Bank, Limited, Chemical Bank and the
Participating Banks named therein (the Amendment to
"Reimbursement Agreement") are attached hereto as Exhibits
-----------------------
A and B, respectively, and the reoptimized amortization
schedules for the Outstanding Fixed Rate Notes are attached
hereto as Exhibits C-1, C-2, C-3 and C-4, respectively.
(b) Request by the Owner Participant. In
--------------------------------
accordance with Section 2.01 of the Trust Agreement,
subject to the terms and conditions of Section 11(c) of the
Participation Agreement, the Owner Participant hereby
directs that the Owner Trustee (i) execute and deliver this
Amendment No. 7 and Lease Amendment No. 5 (collectively,
the "1994 Amendments"), (ii) execute and deliver all other
---------------
agreements, instruments and certificates contemplated by
the Transaction Documents and the 1994 Amendments, (iii)
instruct the Indenture Trustee to (x) consent to Lease
Amendment No. 5 and (y) attach the reoptimized amortization
schedules (attached hereto as Exhibits C-1, C-2, C-3, and
C-4) for the Outstanding Fixed Rate Notes in place of the
existing amortization schedules to such Fixed Rate Notes
and (iv) subject to the terms of the Trust Agreement, to
take such other action in connection with the foregoing as
the Owner Participant may from time to time direct.
(c) Instruction and Consent. In accordance with
-----------------------
Section 10.2(ii) of the Indenture, the Lessee and the Owner
Trustee hereby instruct the Indenture Trustee to consent to
Lease Amendment No. 5 and the Indenture Trustee hereby so
consents.
(d) Consent of Lessee. In accordance with
-----------------
Section 8(b)(2) of the Participation Agreement, the Lessee
hereby consents to the revised amortization schedules
(attached hereto as Exhibits C-1, C-2, C-3, and C-4) to the
respective Outstanding Fixed Rate Notes in connection with
the Tax Rate Change.
(e) Recordations and Filings. The Lessee agrees
------------------------
that it will cause to be made the recordations and filings
set forth in Schedule 2 hereto and that such recordations
and filings are all of the recordations and filings that
are necessary in order to preserve, protect and perfect the
Owner Trustee's rights and interests under the Facility
Lease, as amended by Amendment Nos. 1, 2, 3, 4 and 5
thereto, and the first and prior security interest of the
Indenture Trustee in the Lease Indenture Estate under the
Indenture, as amended.
SECTION 4. Conditions To Effectiveness.
This Amendment No. 7 shall become effective as of
the date first above written if: (a) it shall have been
duly executed and delivered by all of the parties hereto
and all of the conditions set forth below in this Section 4
shall have been satisfied (the date of such satisfaction
being referred to as the "Tax Rate Adjustment Date"); (b)
------------------------
the Owner Participant shall have received a duly executed
and delivered, legal, valid, and binding Lease Amendment
No. 5 and Amendment No. 3 to the Tax Indemnification
Agreement, as amended heretofore ("TIA Amendment No. 3");
(c) the Owner Participant shall have received the
replacement Letter of Credit having Maximum Drawing Amounts
(as defined in the Letter of Credit) corresponding to the
Modified Special Casualty Values, as adjusted on the date
hereof, from The Fuji Bank, Limited, in substantially the
form of Exhibit B to the Reimbursement Agreement, in
replacement of the existing Letter of Credit; (d) the Owner
Participant shall have received opinions from Owner
Participant's Special Tax Counsel, Lessee's Senior
Attorney, Lessee's Special Counsel, Lessee's NRC Counsel,
special counsel and special Japanese counsel to The Fuji
Bank, Limited, and such other opinions as the Owner
Participant shall reasonably request and all such opinions
shall be in form and substance satisfactory to the Owner
Participant; (e) no Default, Event of Default, Event of
Loss, Deemed Loss Event, Reimbursement Default,
Reimbursement Event of Default, Indenture Default or
Indenture Event of Default shall have occurred and be
continuing; and (f) subject to the satisfaction of any and
all other conditions set forth in Sections 2(d) and 11(c)
of the Participation Agreement.
SECTION 5. Expenses.
(a) On the Tax Rate Adjustment Date, (i) the
costs and expenses of the Owner Participant (including, but
not limited to, Owner Participant's computer lease analysis
expenses, out-of-pocket expenses and legal fees and
disbursements of the Owner Participant's counsel, including
counsel for each Partner of the Owner Participants, and any
financial advisors employed by it) as well as the fees and
expenses (including, but not limited to, all computer lease
analysis and travel related costs) of the Owner Trustee,
the Indenture Trustee, the Collateral Trust Trustee,
Funding Corporation, New Funding Corporation and the
Issuing Bank with respect to the negotiation, execution and
delivery of this Amendment No. 7, Lease Amendment No. 5,
TIA Amendment No. 3, the replacement Letter of Credit, the
transactions contemplated herein and therein and all other
agreements, documents or instruments prepared in connection
therewith and all fees, taxes, expenses and disbursements
incurred by such parties, including, but not limited to,
legal fees and disbursements of their counsel, in
connection with the transactions contemplated hereby and
thereby and (ii) all stenographic, printing, reproduction,
and other out-of-pocket expenses (other than investment
banking or brokerage fees) incurred in connection with the
execution and delivery of this Amendment No. 7, Lease
Amendment No. 5, TIA Amendment No. 3, the replacement
Letter of Credit and all other agreements, documents or
instruments prepared in connection therewith (collectively,
the "Tax Rate Change Transaction Expenses") shall be paid
------------------------------------
by the Lessee, on behalf of the Owner Trustee, as
Supplemental Rent in accordance with the provisions of this
Section 5, Section 20 of the Facility Lease and Sections
14(b)(2)(b) and (g) of the Participation Agreement.
(b) Notwithstanding anything in this Section 5
or in Section 14 of the Participation Agreement to the
contrary, (i) in the event the transactions contemplated by
this Amendment No. 7 shall not be consummated for any
reason, the Lessee shall pay or cause to be paid, and shall
indemnify and hold harmless the Indenture Trustee, the
Collateral Trust Trustee, the Owner Trustee, the Owner
Participant, Funding Corporation and New Funding
Corporation in respect of all Tax Rate Change Transaction
Expenses and (ii) in any event, the Lessee shall pay or
cause to be paid directly (and not as Supplemental Rent)
that portion of the Tax Rate Change Transaction Expenses
which exceeds the Tax Rate Change Transaction Expenses
payable by the Owner Trustee pursuant to clause (a) above
and as indicated on Schedule 1 hereto and shall indemnify
and hold the Lessor and the Owner Participant harmless for
any such amounts.
SECTION 6. Miscellaneous.
(a) Execution. This Amendment No. 7 may be
---------
executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which,
when so executed and delivered, shall be an original, but
all such counterparts shall together constitute but one and
the same instrument. Although this Amendment No. 7 is
dated as of the date first above written for convenience
(and once it becomes effective shall have effect from such
date), the actual dates of execution hereof by the parties
hereto are respectively the dates set forth under the
signatures hereto, and this Amendment No. 7 shall not be
effective until all such signatures shall have been duly
affixed and all conditions precedent set forth in Section 4
hereof shall have been satisfied. This Amendment No. 7
amends and modifies the Participation Agreement and is to
be read with and form part of the Participation Agreement.
On and from the Tax Rate Adjustment Date, any reference in
any Transaction Document to the Participation Agreement
shall be deemed to refer to the Participation Agreement as
amended and modified by Amendment No. 1 thereto, dated as
of September 1, 1987, Amendment No. 3 thereto dated as of
May 16, 1988, Amendment No. 4 thereto dated as of November
1, 1991, Amendment No. 5 thereto dated as of November 24,
1992, Amendment No. 6 thereto dated as of January 12, 1993,
and this Amendment No. 7.
(b) Non-Waiver or Amendment. The agreements
-----------------------
contained in this Amendment shall not, except as expressly
provided in this Amendment, operate as a waiver of any
right, power or remedy of any party under any Transaction
Document, nor constitute, except as expressly provided in
this Amendment No. 7, a waiver of any provision of any
Transaction Document.
(c) Governing Law. This Amendment No. 7 has
-------------
been negotiated and delivered in the State of New York and
shall be governed by, and construed in accordance with, the
laws of the State of New York.
(d) Responsibility for Recitals. The recitals
---------------------------
contained herein shall be taken as the statements of the
Lessee, and the other parties hereto assume no
responsibility for the correctness of the same.
<PAGE>
IN WITNESS WHEREOF, intending to be legally
bound, each of the parties hereto has caused this Amendment
No. 7 to the Participation Agreement to be duly executed by
its respective officers thereunto duly authorized as of the
dates set forth below.
PNPP FUNDING CORPORATION
By: \s\ M.A. Ferrucci
--------------------
Name: M.A. Ferrucci
Title: President
Date: October 12, 1994
PNPP II FUNDING CORPORATION
By: \s\ Lannhi Tran
-----------------------
Name: Lannhi Tran
Title: Vice President
Date: October 12, 1994
THE FIRST NATIONAL BANK OF BOSTON,
in its individual capacity and as
Owner Trustee under a Trust Agreement,
dated as of March 16, 1987, with the
Owner Participant
By: \s\ J.E. Mogavero
------------------------
Name: J.E. Mogavero
Title: Authorized Officer
Date: October 12, 1994
<PAGE>
THE BANK OF NEW YORK, in its individual
capacity and as Indenture Trustee under a
Trust Indenture, Mortgage, Security
Agreement and Assignment of Facility Lease
dated as of March 16, 1987, as amended
with The First National Bank of Boston in
its individual capacity and as Owner
Trustee under a Trust Agreement, dated as
of March 16, 1987, with the Owner
Participant
By: \s\ Mary Jane Morrissey
-----------------------
Name: Mary Jane Morrissey
Title: Asst. Vice President
Date: October 12, 1994
OHIO EDISON COMPANY, as Lessee
By: \s\ R.J. Marsh
--------------
Name: R.J. Marsh
Title: Treasurer
Date: October 12, 1994
PERRY ONE ALPHA LIMITED PARTNERSHIP,
as Owner Participant
By: PERRY ONE, INC., its Managing
Partner
By:\s\ Arthur S. Penn
---------------------------
Name: Arthur S. Penn
Title: President
Date: October 12, 1994
<PAGE>
SCHEDULE 1
TO
AMENDMENT NO. 7
TO
PARTICIPATION AGREEMENT
-----------------------
TAX RATE CHANGE ASSUMPTIONS
---------------------------
SEE WARREN & SELBERT ABC FILE OEPTXSOVRANFINR DATED
6-Oct-1994 23:24:41 (A HARD COPY OF WHICH IS RETAINED
IN THE FILES OF OWNER PARTICIPANT, LESSEE AND MCMANUS
& MILES)
1. Tax Rate Change
Transaction Expenses $45,000.00 paid on the Tax
Rate Adjustment Date by the
Lessee on behalf of the Owner
Trustee as Supplemental Rent
and amortized for Federal
income tax purposes on a
straight line basis over the
remaining Basic Lease Term.
2. Owner Participant's
Marginal Federal
Tax Rate 35 percent in 1993 and each
year after.
3. Basic Rent payments See Schedule 1 to Amendment
No. 5 to Facility Lease.
4. Amortization of Notes See Exhibits C-1, C-2, C-3
and C-4 to Amendment No. 7 to
Participation Agreement.
<PAGE>
SCHEDULE 2
TO
AMENDMENT NO. 7
TO
PARTICIPATION AGREEMENT
-----------------------
RECORDATIONS AND FILINGS
------------------------
UCC-1 Financing Statements and Other Filings
A. Secretary of Commonwealth, Pennsylvania
(i) A financing statement on form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
B. County Recorder, Summit County, Ohio:
(i) A financing statement on form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
C. Secretary of State, Ohio
(i) A financing statement on Form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
<PAGE>
EXHIBIT A
TO AMENDMENT
NO. 7 TO
PARTICIPATION
AGREEMENT
---------
[FORM OF LEASE AMENDMENT NO. 5]
<PAGE>
EXHIBIT B
TO AMENDMENT
NO. 7 TO
PARTICIPATION
AGREEMENT
---------
[FORM OF AMENDMENT TO REIMBURSEMENT AGREEMENT]
<PAGE>
EXHIBITS C-1, C-2
C-3 and C-4,
respectively,
TO AMENDMENT
NO. 7 TO
PARTICIPATION
AGREEMENT
---------
[FORM OF REOPTIMIZED AMORTIZATION SCHEDULES
FOR THE FIXED RATE NOTES]
<PAGE>
EXHIBIT D
TO AMENDMENT
NO. 7 TO
PARTICIPATION
AGREEMENT
---------
[COPY OF CLOSING LETTER]
<PAGE>
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY
LEASE AS AMENDED BY THIS AMENDMENT NO. 4 THERETO HAVE BEEN
ASSIGNED TO, AND ARE SUBJECT TO, A SECURITY INTEREST IN
FAVOR OF, THE BANK OF NEW YORK, AS INDENTURE TRUSTEE UNDER
A TRUST INDENTURE, MORTGAGE, SECURITY AGREEMENT AND
ASSIGNMENT OF FACILITY LEASE, DATED AS OF MARCH 16, 1987,
AS AMENDED. THIS AMENDMENT NO. 4 HAS BEEN EXECUTED IN
SEVERAL COUNTERPARTS. SEE SECTION 3(d) OF THIS AMENDMENT
NO. 4 FOR INFORMATION CONCERNING THE RIGHTS OF HOLDERS OF
VARIOUS COUNTERPARTS HEREOF.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART
- -----------------------------------------------------------
- -----------------------------------------------------------
AMENDMENT NO. 4
dated as of January 12, 1993
to
FACILITY LEASE
dated as of March 16, 1987,
as amended
between
LESSOR
THE FIRST NATIONAL BANK OF BOSTON
not in its individual capacity, but solely
as Owner Trustee under a Trust Agreement
dated as of March 16, 1987 with
PERRY ONE ALPHA LIMITED PARTNERSHIP
as Owner Participant
and
LESSEE
OHIO EDISON COMPANY
- -----------------------------------------------------------
- -----------------------------------------------------------
Original Facility Lease Recorded on
at Volume 292, Page 40,
Lake County, Ohio Recorder's Office
and Roll G129 at Frame 0942 of the
Records of Incorporation and Miscellaneous
Filings, Ohio Secretary of State
- -----------------------------------------------------------
- -----------------------------------------------------------
Sale and Leaseback of the Undivided Interest in
Perry Power Plant Unit 1
AMENDMENT NO. 4, dated as of January 12, 1993
("Amendment No. 4"), to the Facility Lease, dated as of March 16,
---------------
1987, as amended and as in effect on the date hereof (the
"Facility Lease"), among THE FIRST NATIONAL BANK OF BOSTON, a
--------------
national banking association, not in its individual capacity, but
solely as Owner Trustee under a Trust Agreement, dated as of
March 16, 1987, with the Owner Participant identified on the
cover page hereof (in such capacity, the "Lessor"), and OHIO
------
EDISON COMPANY, an Ohio corporation ("Lessee"),
------
W I T N E S S E T H:
-------------------
WHEREAS, the Lessee and the Lessor have heretofore
entered into the Facility Lease providing for the lease by the
Lessor to the Lessee of the Undivided Interest; and
WHEREAS, Section 3(e) of the Facility Lease provides
for an adjustment to Basic Rent and to the schedules of Casualty
Values, Special Casualty Values and Modified Special Casualty
Values to preserve the Net Economic Return in the event, among
other things, of the refunding of the Fixed Rate Notes by
issuance of Additional Notes; and
WHEREAS, Section 10.1(viii) of the Indenture provides,
among other things, that the Lessor and Indenture Trustee may,
without the consent of the Holders of Notes Outstanding, execute
a supplement to the Indenture in order to evidence the issuance
of and to provide the terms of the Additional Notes; and
WHEREAS, the Lessor and the Indenture Trustee intend to
execute a Supplemental Indenture No. 3 dated as of January 1,
1993 to the Indenture, providing for the issuance of new
promissory notes;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions.
For purposes hereof, capitalized terms used herein and
not otherwise defined herein or in the recitals shall have the
meanings assigned to such terms in Appendix A to the Facility
Lease. Effective Date shall have the meaning ascribed to such
term in Amendment No. 6 to the Participation Agreement.
SECTION 2. Amendments.
As of the Effective Date, the Facility Lease shall be
amended as follows:
(a) Schedule 1 entitled "Basic Rent Percentages"
is hereby deleted in its entirety and replaced with Schedule
1 hereto.
(b) Schedule 2 entitled "Casualty Values" is
hereby deleted in its entirety and replaced with Schedule 2
hereto.
(c) Schedule 3 entitled "Special Casualty Values"
is hereby deleted in its entirety and replaced with Schedule
3 hereto.
(d) Schedule 4 entitled "Modified Special
Casualty Values" is hereby deleted in its entirety and
replaced with Schedule 4 hereto.
(e) Appendix A to the Facility Lease is amended
as set forth in Amendment No. 6 to the Participation
Agreement in respect of Appendix A thereto.
SECTION 3. Miscellaneous.
(a) Execution. This Amendment No. 4 may be
---------
executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which, when so executed
and delivered, shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
Although this Amendment No. 4 is dated as of the date first above
written for convenience (and once it becomes effective shall have
effect from such date), the actual dates of execution hereof by
the parties hereto are, respectively, the dates set forth under
the signatures hereto, and this Amendment No. 4 shall become
effective as of the Effective Date when all conditions precedent
to the Effective Date shall have been satisfied. This Amendment
No. 4 amends and modifies the Facility Lease and is to be read
with and form part of the Facility Lease. On and from the
Effective Date any reference in any Transaction Document to the
Facility Lease shall be deemed to refer to the Facility Lease, as
amended through and including the date hereof.
(b) Non-Waiver or Amendment. The agreements contained
-----------------------
in this Amendment shall not, except as expressly provided in this
Amendment No. 4, operate as a waiver of any right, power or
remedy of any party under any Transaction Document, nor
constitute, except as expressly provided in this Amendment No. 4,
a waiver of any provision of any Transaction Document.
-2-
(c) Governing Law. This Amendment No. 4 shall be
-------------
governed by and construed in accordance with the laws of the
State of New York, except to the extent that the laws of the
State of Ohio govern the creation of, and perfection of, interest
in property (whether real or personal) and except to the extent
that the Federal laws of the United States are mandatorily
applicable.
(d) Original Counterpart. The single executed
--------------------
original of this Amendment No. 4 marked "THIS COUNTERPART IS THE
ORIGINAL COUNTERPART" and containing the receipt of the Indenture
Trustee thereon shall be the "Original" of this Amendment No. 4.
No security interest in this Amendment No. 4 may be created or
continued through the transfer or possession of any counterpart
other than the "Original".
IN WITNESS WHEREOF, intending to be legally bound, each
of the parties hereto has caused this Amendment No. 4 to Facility
Lease to be duly executed by an officer thereunto duly
authorized.
THE FIRST NATIONAL BANK OF BOSTON,
not in its individual capacity, but
solely as Owner Trustee under a
Trust Agreement dated as of
March 16, 1987 with the Owner
Participant
ATTEST:
[Corporate Seal] By: /s/ J.E. Mogavero
-------------------------------
By: /s/ Eric J. Donaghey Name: J.E. Mogavero
--------------------- -----------------------------
Name: Eric J. Donaghey Title: Authorized Officer
------------------- ----------------------------
Title: Assistant Cashier Date: January 12, 1993
------------------ -----------------------------
By: /s/ G. Patrick McEnroe
--------------------------
Name: G. Patrick McEnroe
------------------------
Title: Assistant Cashier
-----------------------
OHIO EDISON COMPANY
ATTEST:
[Corporate Seal] By: /s/ T.F. Struck, II
-------------------------------
By: /s/ G.F. LaFlame Name: T.F. Struck, II
--------------------- -----------------------------
Name: G.F. LaFlame Title: Assistant Treasurer
------------------- ----------------------------
Title: Secretary Date: January 12, 1993
------------------ -----------------------------
By: /s/ Nancy C. Brink
----------------------
Name: Nancy C. Brink
--------------------
Title: Assistant Secretary
-------------------
-4-
CERTIFICATE OF SERVICE
----------------------
The Lessee, Ohio Edison Company, hereby certifies that
its precise address is 76 S. Main Street, Akron, Ohio 44308.
By: /s/ T.F. Struck, II
-------------------------------
Name: T.F. Struck, II
-----------------------------
Title: Assistant Treasurer
----------------------------
Date: January 12, 1993
-----------------------------
STATE OF OHIO )
) ss.:
COUNTY OF SUMMIT )
BEFORE ME, a Notary Public in and for said County and
State, personally appeared the above-named OHIO EDISON COMPANY,
by T.F. Struck, II its Assistant Treasurer, who acknowledged that
he/she did sign the foregoing instrument on behalf of said
corporation by authority of its Board of Directors and that the
same is the free act and deed of said corporation and his/her
free act and deed individually and as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal at Akron, Ohio this 12 day of January, 1993.
/s/ Tracy A. Bendel
-----------------------
Notary Public
My Commission Expires June 26, 1997
<PAGE>
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF SUFFOLK )
BEFORE ME, a Notary Public in and for said
Commonwealth, personally appeared the above-named THE FIRST
NATIONAL BANK OF BOSTON, by J.E. Mogavero, its Authorized
Officer, who acknowledged that he/she did sign the foregoing
instrument on behalf of said national banking association by
authority of its Board of Directors and that the same is the free
act and deed of said national banking association and his/her
free act and deed individually and as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal at Canton, Massachusetts this 12th day of January,
1993.
/s/ Chi Chung Ma
----------------------
Notary Public
My Commission Expires 9/27/96
<PAGE>
SCHEDULE 1
TO
AMENDMENT NO. 4
BASIC RENT PERCENTAGES
Perry One Alpha L.P.
$ %
------------ -----------
1/12/93 31,290.00 0.0619542
5/30/93 1,983,937.91 3.9281971
11/30/93 1,751,969.75 3.4689001
5/30/94 1,753,267.90 3.4714704
11/30/94 1,754,353.30 3.4736195
5/30/95 1,755,767.39 3.4764194
11/30/95 1,858,885.85 3.6805940
5/30/96 1,680,182.35 3.3267611
11/30/96 2,115,203.55 4.1881030
5/30/97 2,289,881.60 4.5339656
11/30/97 1,695,273.60 3.3566417
5/30/98 2,644,748.90 5.2366028
11/30/98 1,539,645.90 3.0484989
5/30/99 2,759,015.39 5.4628505
11/30/99 1,597,880.65 5.5638037
5/30/00 2,799,720.00 5.5434456
11/30/00 1,732,570.60 3.4304898
5/30/01 2,799,720.00 5.5434456
11/30/01 1,959,185.13 3.8791866
5/30/02 2,799,720.00 5.5434456
11/30/02 2,197,130.39 4.3503182
5/30/03 2,624,720.00 5.1969456
11/30/03 2,621,972.91 5.1915064
5/30/04 2,624,720.00 5.1969456
11/30/04 2,568,054.58 5.0847481
5/30/05 2,799,720.00 5.5434456
11/30/05 2,342,809.25 4.6387623
5/30/06 2,799,720.00 5.5434456
11/30/06 1,155,202.65 2.2873012
5/30/07 2,799,720.00 5.5434456
11/30/07 1,345,610.34 2.6643085
5/30/08 2,799,720.00 5.5434456
11/30/08 1,552,876.85 3.0746962
5/30/09 2,799,720.00 5.5434456
11/30/09 1,770,506.70 3.5056033
5/30/10 2,799,720.00 5.5434456
11/30/10 1,999,018.03 3.9580557
5/30/11 2,799,720.00 5.5434456
11/30/11 2,238,954.93 4.4331308
5/30/12 2,799,720.00 5.5434456
11/30/12 2,490,888.68 4.9319596
5/30/13 2,799,720.00 5.5434456
11/30/13 2,755,419.11 5.4557298
<PAGE>
$ %
------------ -----------
5/30/14 2,899,720.00 5.7414456
11/30/14 2,899,720.00 5.7414456
5/30/15 2,899,720.00 5.7414456
11/30/15 2,899,720.00 5.7414456
5/30/16 2,899,720.00 5.7414456
<PAGE>
SCHEDULE 2
TO
AMENDMENT NO. 4
CASUALTY VALUES
Perry One Alpha L.P.
% of Facility Cost $
------------------ -
5/30/93 108.386120 54,740,464.37
11/30/93 108.913370 55,006,753.06
5/30/94 109.368110 55,236,417.14
11/30/94 109.718800 55,413,533.58
5/30/95 109.984000 55,547,476.29
11/30/95 109.934590 55,522,518.63
5/30/96 110.139930 55,626,227.75
11/30/96 109.377330 55,241,075.25
5/30/97 108.192650 54,642,750.95
11/30/97 108.135030 54,613,651.24
5/30/98 106.196360 53,634,527.65
11/30/98 106.364780 53,719,585.78
5/30/99 104.134260 52,593,060.73
11/30/99 104.129310 52,590,561.11
5/30/00 101.768470 51,398,219.09
11/30/00 101.442900 51,233,786.74
5/30/01 99.012210 50,006,167.91
11/30/01 98.173260 49,582,453.17
5/30/02 95.660150 48,313,209.17
11/30/02 94.269270 47,610,743.23
5/30/03 92.002820 46,466,070.98
11/30/03 89.699650 45,302,852.47
5/30/04 87.327700 44,104,900.44
11/30/04 85.012170 42,935,440.86
5/30/05 82.179950 41,505,027.35
11/30/05 80.177980 40,493,929.79
5/30/06 77.260350 39,020,380.49
11/30/06 77.544430 39,163,851.87
5/30/07 74.638520 37,696,220.56
11/30/07 74.409130 37,580,370.15
5/30/08 71.324780 36,022,617.29
11/30/08 70.604620 35,658,899.86
5/30/09 67.418980 34,049,991.50
11/30/09 66.175190 33,421,812.76
5/30/10 62.878230 31,756,684.12
11/30/10 61.072750 30,844,823.69
5/30/11 57.646790 29,114,542.38
11/30/11 55.239140 27,898,556.23
5/30/12 51.685810 26,103,943.81
11/30/12 48.656690 24,574,085.62
5/30/13 44.938870 22,696,400.94
11/30/13 41.223730 20,820,064.37
5/30/14 37.122420 18,748,698.40
<PAGE>
% of Facility Cost $
------------------ -
11/30/14 32.943000 16,637,881.31
5/30/15 28.706950 14,498,461.03
11/30/15 24.455800 12,351,416.31
5/30/16 20.000000 10,101,010.10
<PAGE>
SCHEDULE 3
TO
AMENDMENT NO. 4
SPECIAL CASUALTY VALUES
Perry One Alpha L.P.
% of Facility Cost $
------------------ -
5/30/93 107.402380 54,243,626.86
11/30/93 107.878770 54,484,226.59
5/30/94 108.280010 54,686,873.46
11/30/94 108.574440 54,835,575.76
5/30/95 108.780480 54,939,635.18
11/30/95 108.668830 54,883,249.13
5/30/96 108.808730 54,953,904.84
11/30/96 107.977300 54,533,989.91
5/30/97 106.720230 53,899,105.79
11/30/97 106.586480 53,831,555.94
5/30/98 104.567750 52,811,994.14
11/30/98 104.651960 52,854,523.21
5/30/99 102.332870 51,683,270.13
11/30/99 102.234790 51,633,729.82
5/30/00 99.775990 50,391,914.88
11/30/00 99.347390 50,175,451.61
5/30/01 96.808360 48,893,111.60
11/30/01 95.855460 48,411,846.33
5/30/02 93.222510 47,082,076.15
11/30/02 91.705590 46,315,954.53
5/30/03 89.306380 45,104,335.28
11/30/03 86.864000 43,870,708.27
5/30/04 84.345440 42,598,707.28
11/30/04 81.875710 41,351,370.05
5/30/05 78.881320 39,839,052.22
11/30/05 76.708790 38,741,815.48
5/30/06 73.611790 37,177,673.18
11/30/06 73.707220 37,225,867.45
5/30/07 70.602900 35,658,032.72
11/30/07 70.164860 35,436,797.90
5/30/08 66.861060 33,768,211.71
11/30/08 65.910100 33,287,930.33
5/30/09 62.481730 31,556,431.08
11/30/09 60.982660 30,799,322.90
5/30/10 57.417230 28,998,598.53
11/30/10 55.329380 27,944,131.39
5/30/11 51.606460 26,063,869.89
11/30/11 48.886490 24,690,148.85
5/30/12 45.004700 22,729,645.85
11/30/12 41.630130 21,025,319.71
5/30/13 37.549010 18,964,146.23
11/30/13 33.451770 16,894,833.58
<PAGE>
% of Facility Cost $
------------------ -
5/30/14 28.948620 14,620,513.70
11/30/14 24.346570 12,296,248.98
5/30/15 19.666040 9,932,344.77
11/30/15 14.947430 7,549,209.19
5/30/16 10.000000 5,050,505.05
<PAGE>
SCHEDULE 4
TO
AMENDMENT NO. 4
MODIFIED SPECIAL CASUALTY VALUES
Perry One Alpha L.P.
% of Facility Cost $
------------------ -
5/30/93 32.096260 16,210,229.95
11/30/93 32.524870 16,426,700.11
5/30/94 33.054770 16,694,329.77
11/30/94 33.485000 16,911,617.94
5/30/95 33.834900 17,088,335.52
11/30/95 34.075760 17,209,979.62
5/30/96 34.229910 17,287,834.74
11/30/96 34.273610 17,309,904.58
5/30/97 34.274710 17,310,460.63
11/30/97 34.274710 17,310,460.63
5/30/98 34.274710 17,310,460.63
11/30/98 34.274710 17,310,460.63
5/30/99 34.281420 17,313,849.02
11/30/99 33.799100 17,070,250.64
5/30/00 33.621990 16,980,802.12
11/30/00 32.880020 16,606,068.18
5/30/01 32.424100 16,375,806.89
11/30/01 31.767560 16,044,220.58
5/30/02 31.217920 15,766,627.03
11/30/02 30.444140 15,375,828.36
5/30/03 29.799710 15,050,359.32
11/30/03 29.297320 14,796,625.83
5/30/04 28.536820 14,412,537.78
11/30/04 27.571980 13,925,243.77
5/30/05 26.870390 13,570,906.49
11/30/05 25.854250 13,057,701.17
5/30/06 25.976320 13,119,355.41
11/30/06 26.169430 13,216,883.02
5/30/07 26.422340 13,344,618.39
11/30/07 23.026750 11,629,670.93
5/30/08 22.502550 11,364,921.79
11/30/08 21.479050 10,848,002.56
5/30/09 20.800300 10,505,199.57
11/30/09 19.835910 10,018,133.84
5/30/10 19.049940 9,961,179.79
11/30/10 17.944900 9,063,082.08
5/30/11 17.042210 8,607,179.06
11/30/11 15.781210 7,970,310.00
5/30/12 15.339290 7,747,155.88
11/30/12 14.003230 7,072,340.29
5/30/13 12.851060 6,490,435.17
11/30/13 11.335330 5,724,916.40
<PAGE>
% of Facility Cost $
------------------ -
5/30/14 10.036380 5,068,878.55
11/30/14 8.721210 4,404,652.30
5/30/15 8.808710 4,448,841.36
11/30/15 9.073680 4,582,666.67
5/30/16 5.478880 2,767,112.95
<PAGE>
I.A.1
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE AS
AMENDED BY THIS AMENDMENT NO. 5 THERETO HAVE BEEN ASSIGNED
TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF, THE
BANK OF NEW YORK, AS INDENTURE TRUSTEE UNDER A TRUST
INDENTURE, MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF
FACILITY LEASE DATED AS OF MARCH 16, 1987, AS SUPPLEMENTED
BY THE SUPPLEMENTAL INDENTURE NO. 1 THERETO, DATED AS OF
SEPTEMBER 1, 1987, BY THE SUPPLEMENTAL INDENTURE NO. 2
THERETO, DATED AS OF NOVEMBER 1, 1991 AND BY SUPPLEMENTAL
NO. 3 THERETO DATED AS OF JANUARY 1, 1993. THIS AMENDMENT
NO. 5 HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. SEE
SECTION 3(b) OF THIS AMENDMENT NO. 5 FOR INFORMATION
CONCERNING THE RIGHTS OF HOLDERS OF VARIOUS COUNTERPARTS
HEREOF.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART
___________________________________________________________
AMENDMENT NO. 5
dated as of October 12, 1994
to
FACILITY LEASE
dated as of March 16, 1987,
amended as of September 1, 1987,
further amended as of November 1, 1991,
further amended as of November 24, 1992,
and
further amended as of January 12, 1993
between
THE FIRST NATIONAL BANK OF BOSTON
not in its individual capacity, but solely
as Owner Trustee under a Trust Agreement,
dated as of March 16, 1987, with
PERRY ONE ALPHA LIMITED PARTNERSHIP,
as Lessor
and
OHIO EDISON COMPANY,
as Lessee
___________________________________________________________
Original Facility Lease Recorded on March 19, 1987, at
Mortgage Book Volume 292, Page 40, Lake County, Ohio
Recorder's Office.
Amendment No. 1 to Facility Lease Recorded at Mortgage
Book Volume ___, Page ___, Lake County, Ohio Recorder's
Office.
Amendment No. 2 to Facility Lease Recorded at Mortgage
Book Volume ___, Page ___, Lake County, Ohio Recorder's
Office.
Amendment No. 3 to Facility Lease Recorded on January
__, 1993, at Mortgage Book Volume __, Page __, Lake County,
Ohio Recorder's Office.
Amendment No. 4 to Facility Lease Recorded at Mortgage
Book Volume ___, Page ___, Lake County, Ohio Recorder's
Office.
AMENDMENT NO. 5, dated as of October 12, 1994
("Amendment No. 5"), to the Facility Lease, dated March 16, 1987,
as amended by Amendment No. 1 thereto, dated as of September 1,
1987 ("Amendment No. 1"), Amendment No. 2 thereto, dated as of
November 1, 1991 ("Amendment No. 2") Amendment No. 3 thereto,
dated as of November 24, 1992 ("Amendment No. 3"), and Amendment
No. 4 thereto, dated as of January 12, 1993 ("Amendment No. 4"),
all as in effect on the date hereof (the "Facility Lease"),
between THE FIRST NATIONAL BANK OF BOSTON, a national banking
association, not in its individual capacity, but solely as Owner
Trustee (the "Lessor") under a Trust Agreement, dated as of March
16, 1987, with PERRY ONE ALPHA LIMITED PARTNERSHIP, as Owner
Participant and OHIO EDISON COMPANY, an Ohio corporation (the
"Lessee").
W I T N E S S E T H :
-------------------
WHEREAS, the Lessor and the Lessee have heretofore
entered into the Facility Lease providing for the lease by the
Lessor to the Lessee of the Undivided Interest;
WHEREAS, Section 3(d) of the Facility Lease provides
for an adjustment to Basic Rent and to the schedules of Casualty
Values, Special Casualty Values and Modified Special Casualty
Values so as to preserve Owner Participant's Net Economic Return
in the event, among other things, of any change in the Code
enacted into law after the Closing Date and prior to March 19,
2007, which results in the change ("Tax Rate Change") in the
marginal federal income tax rate applicable to corporations
differing from the rate (the "Tax Rate") assumed in the Pricing
Assumptions as in effect on the Closing Date; and
WHEREAS, Section 11(b)(1) of the Code, as amended by
the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66),
generally effective for tax years beginning on or after January
1, 1993, increases the Tax Rate assumed to be applicable to the
Owner Participant in the Pricing Assumptions from 34% to 35%; and
WHEREAS, as a result of the Tax Rate Change, in order
to carry out the provisions of Section 3(d) of the Facility
Lease, the Owner Trustee and the Lessee desire to execute this
Amendment No. 5 to amend certain Sections of the Facility Lease,
amend Appendix A thereto, and amend the schedules of Basic Rent
percentages, Casualty Values, Special Casualty Values and
Modified Special Casualty Values pursuant to Sections 3(d) and
3(f) of the Facility Lease.
WHEREAS, the Indenture Trustee, in connection with the
adjustment to the schedules of principal amortization attached to
the Outstanding Fixed Rate Notes, has agreed to waive the 60 day
notice requirement under Section 2(b) of each of Supplemental
Indenture No. 2, dated as of November 1, 1991, and Supplemental
Indenture No. 3, dated as of January 1, 1993, to the Indenture
and accept a 45 day notice period in lieu thereof; and
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions
-----------
For purposes hereof, capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to
such terms in Appendix A to the Facility Lease.
SECTION 2. Supplements and Amendments
--------------------------
(a) Section 3(d) Adjustments to Rent for Change in Tax
--------------------------------------------------
Rate. Section 3(d) of the Facility Lease is amended by inserting
- ----
in the fourth line therein immediately after the phrase "if there
is any change" the phrase "(`Tax Rate Change')".
(b) Section 3(e) Other Adjustments to Rent. Section
--------------------------------------
3(e) of the Facility Lease is amended by inserting after the
parenthetical contained in the second sentence thereof before the
period the following phrase:
"provided, however, that nothing in this sentence shall be
--------
construed so as to impair the preservation of Net Economic
Return (or Adjusted Net Economic return, whichever is
applicable) in connection with the adjustments to Basic Rent
and the Schedules of Casualty Values, Special Casualty
Values and Modified Special Casualty Values pursuant to
Section 3(d) or this Section 3(e); provided further that in
----------------
order to determine the foregoing adjustments the Owner
Participant will prepare a pricing file which preserves Net
Economic Return and incorporates all of the Assumptions and
the Tax Rate Assumptions".
(c) Definitions. Appendix A to the Facility Lease is
-----------
amended as set forth in Amendment No. 7, dated as of October 12,
1994, to the Participation Agreement, among the Owner
Participant, Funding Corporation, New Funding Corporation, the
Owner Trustee, the Indenture Trustee and the Lessee, in respect
of Appendix A thereto.
(d) Schedules. Schedules 1 through 4 of the Facility
---------
Lease are hereby amended as follows:
(i) Schedule 1 entitled "Basic Rent Percentages" is
deleted in its entirety and is hereby replaced with Schedule
1 hereto.
(ii) Schedule 2 entitled "Schedule of Casualty Values"
is deleted in its entirety and is hereby replaced with
Schedule 2 hereto.
(iii) Schedule 3 entitled "Schedule of Special Casualty
Values" is deleted in its entirety and is hereby replaced
with Schedule 3 hereto.
(iv) Schedule 4 entitled "Schedule of Modified Special
Casualty Values" is deleted in its entirety and is hereby
replaced with Schedule 4 hereto.
SECTION 3. Miscellaneous
-------------
(a) Execution. This Amendment No. 5 may be executed
---------
in any number of counterparts and by the different parties hereto
on separate counterparts, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
(b) Original Counterpart. The single executed
--------------------
original of this Amendment No. 5 marked "THIS COUNTERPART IS THE
ORIGINAL COUNTERPART" and containing the receipt of the Indenture
Trustee thereon shall be the "Original" of this Amendment No. 5.
No security interest in this Amendment No. 5 may be created or
continued through the transfer or possession of any counterpart
other than the "Original."
(c) Effectiveness. Although this Amendment No. 5 is
-------------
dated as of the date first above written for convenience (and
once it becomes effective shall have effect from such date), the
actual dates of execution hereof by the parties hereto are,
respectively, the dates set forth under the signatures hereto,
and this Amendment No. 5 shall become effective as of the Tax
Rate Adjustment Date (as defined in Amendment No. 7 to the
Participation Agreement) when all conditions precedent to the Tax
Rate Adjustment Date shall have been satisfied and this Amendment
No. 5 shall have been duly executed and delivered by all of the
parties hereto, is executed and shall be construed as an
amendment and supplement to the Facility Lease, and as provided
in the Facility Lease, this Amendment No. 5 forms a part thereof.
On and from the Tax Rate Adjustment Date any reference in any
Transaction Document to the Facility Lease shall be deemed to
refer to the Facility Lease, as amended and modified by Amendment
No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4 and this
Amendment No. 5, and the Facility Lease, as so amended, remains
in full force and effect in accordance with its terms.
(d) Non-Waiver or Amendment. The agreements contained
-----------------------
in this Amendment No. 5 shall not, except as expressly provided
in this Amendment No. 5, operate as a waiver of any right, power
or remedy of any party under any Transaction Document nor
constitute, except as expressly provided in this Amendment No. 5,
a waiver of any provision of any Transaction Document.
(e) Governing Law. This Amendment No. 5 shall be
-------------
governed by and construed in accordance with the laws of the
State of New York, except to the extent that the laws of the
State of Ohio govern the creation of, and perfection of, the
leasehold estate hereunder and the exercise of rights and
remedies with respect to such leasehold estate and except to the
extent that the Federal laws of the United States are mandatorily
applicable.
<PAGE>
IN WITNESS WHEREOF, the Lessor and the Lessee have
caused this Amendment No. 5 to be duly executed as of the date
set forth above by their respective officers thereunto duly
organized.
THE FIRST NATIONAL BANK
OF BOSTON, not in its
individual capacity, but
solely as Owner Trustee
under a Trust Agreement,
dated as of March 16,
1987, with PERRY ONE
ALPHA LIMITED PARTNERSHIP,
as Lessor
Attest: \s\ Donna Germano By \s\ James E. Mogavero
-------------------- --------------------------
Name: Donna Germano Name: James E. Mogavero
Title: Assistant Cashier Title: Authorized Officer
[Corporate Seal]
OHIO EDISON COMPANY,
as Lessee
Attest: \s\ T.F. Struck, II By \s\ R.H. Marsh
-------------------- -------------------------
Name: T.F. Struck, II Name: R.H. Marsh
Title: Assistant Treasurer Title: Treasurer
[Corporate Seal]
<PAGE>
COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF NORFOLK )
ON THIS, the 12th day of October, 1994, before me a
Notary Public, personally appeared James E. Mogavero, who
acknowledged himself to be an Authorized Officer of THE FIRST
NATIONAL BANK OF BOSTON, and that he as such officer, being
authorized to do so, executed the foregoing instrument for the
purposes therein contained by signing the name of the national
banking association by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
\s\ Shawn Patrick George
-------------------------
Notary Public
Shawn Patrick George
Notary Public
My Commission Expires
September 2, 1999
<PAGE>
STATE OF OHIO )
: ss.:
COUNTY OF SUMMIT )
ON THIS, the 12th day of October, 1994, before me a
Notary Public in and for said County and State, personally
appeared T.F. Struck, II, who acknowledged himself to be a
Assistant Treasurer of OHIO EDISON COMPANY, and that he as such
officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name
of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
\s\ Susie Hoisten
-------------------------
Notary Public
Susie M. Hoisten, Notary Public
Residence - Summit County
State Wide Jurisdiction, Ohio
My Commission Expires Nov. 4, 1996
<PAGE>
I.B.
----
CERTAIN OF THE RIGHT, TITLE AND INTEREST IN AND TO THIS
AMENDMENT NO. 5 TO FACILITY LEASE OF THE FIRST NATIONAL BANK OF
BOSTON, AS OWNER TRUSTEE UNDER THE TRUST AGREEMENT, DATED AS OF
MARCH 16, 1987, BETWEEN THE FIRST NATIONAL BANK OF BOSTON AND
PERRY ONE ALPHA LIMITED PARTNERSHIP, HAS BEEN ASSIGNED TO AND IS
SUBJECT TO A SECURITY INTEREST IN FAVOR OF THE BANK OF NEW YORK,
AS INDENTURE TRUSTEE, UNDER THE TRUST INDENTURE, MORTGAGE,
SECURITY AGREEMENT AND ASSIGNMENT OF FACILITY LEASE, DATED AS OF
MARCH 16, 1987, AS SUPPLEMENTED TO THE DATE HEREOF, FOR THE
BENEFIT OF THE HOLDERS OF THE NOTES REFERRED TO IN SUCH TRUST
INDENTURE, MORTGAGE, SECURITY AGREEMENT, AND ASSIGNMENT OF
FACILITY LEASE. THIS AMENDMENT NO. 5 TO FACILITY LEASE HAS BEEN
EXECUTED IN SEVERAL COUNTERPARTS. ONLY THAT COUNTERPART TO BE
DEEMED THE ORIGINAL COUNTERPART FOR CHATTEL PAPER PURPOSES
CONTAINS THIS RECEIPT THEREFOR EXECUTED BY THE BANK OF NEW YORK,
AS INDENTURE TRUSTEE, ON THE SIGNATURE PAGES THEREOF AND NO
SECURITY INTEREST IN THIS AMENDMENT NO. 5 TO FACILITY LEASE MAY
BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART
OTHER THAN THIS EXECUTED ORIGINAL COUNTERPART. SEE SECTION 22(e)
OF THE FACILITY LEASE FOR INFORMATION CONCERNING THE RIGHTS OF
THE HOLDERS OF THE VARIOUS COUNTERPARTS HEREOF.
Receipt of this original counterpart of the foregoing
Amendment No. 5 To Facility Lease is hereby acknowledged on this
___ day of October, 1994.
THE BANK OF NEW YORK,
as Indenture Trustee
By__________________________
Name:
Title:
SCHEDULE 1
TO
AMENDMENT NO. 5
TO FACILITY LEASE
-----------------
BASIC RENT PERCENTAGES
Perry One Alpha L.P.
--------------------
$ %
------------ -----------
11/30/94 1,979,353.30 3.919119534
5/30/95 1,949,609.50 3.860226810
11/30/95 1,969,589.20 3.899786616
5/30/96 1,982,164.75 3.924686205
11/30/96 1,983,570.65 3.927469887
5/30/97 1,984,250.00 3.928815000
11/30/97 1,977,204.40 3.914864712
5/30/98 1,976,744.50 3.913954110
11/30/98 1,969,561.25 3.899731275
5/30/99 2,257,044.60 4.468948308
11/30/99 1,771,210.41 3.506996611
5/30/00 2,345,304.46 4.643702830
11/30/00 1,884,363.30 3.731039334
5/30/01 2,479,870.24 4.910143075
11/30/01 1,961,280.91 3.883336201
5/30/02 2,640,316.26 5.227826194
11/30/02 2,022,892.45 4.005327051
5/30/03 2,799,720.00 5.543445599
11/30/03 2,032,214.28 4.023784274
5/30/04 2,799,720.00 5.543445599
11/30/04 2,273,810.99 4.502145760
5/30/05 2,799,720.00 5,543445599
11/30/05 2,421,847.35 4.795257753
5/30/06 2,799,720.00 5.543445599
11/30/06 2,436,856.60 4.824976068
5/30/07 2,799,720.00 5.543445599
11/30/07 1,492,272.20 2.954698956
5/30/08 2,799,720.00 5.543445599
11/30/08 1,706,871.81 3.379606183
5/30/09 2,799,720.00 5.543445599
SCHEDULE 1
TO
AMENDMENT NO. 5
TO FACILITY LEASE
-----------------
$ %
------------ -----------
11/30/09 1,932,201.40 3.825758772
5/30/10 2,799,720.00 5.543445599
11/30/10 2,168,797.47 4.294218990
5/30/11 2,799,720.00 5.543445599
11/30/11 2,417,223.34 4.786102213
5/30/12 2,799,720.00 5.543445599
11/30/12 2,678,070.51 5.302579609
5/30/13 2,799,720.00 5.543445599
11/30/13 2,799,720.00 5.543445599
5/30/14 2,799,720.00 5.543445599
11/30/14 2,799,720.00 5.543445599
5/30/15 2,799,720.00 5.543445599
11/30/15 2,799,720.00 5.543445599
5/30/16 2,799,720.00 5.543445599
<PAGE>
SCHEDULE 2
TO
AMENDMENT NO. 5
TO FACILITY LEASE
-----------------
CASUALTY VALUES
Perry One Alpha L.P.
--------------------
% of Facility Cost
------------------
11/30/94 110.3615043
5/30/95 110.2326561
11/30/95 109.9430232
5/30/96 109.5239340
11/30/96 108.9695900
5/30/97 108.3272238
11/30/97 107.6676864
5/30/98 106.9823617
11/30/98 106.2851356
5/30/99 105.0076004
11/30/99 104.6483920
5/30/00 103.1644426
11/30/00 102.5444688
5/30/01 100.7537290
11/30/01 99.9224887
5/30/02 97.7443679
11/30/02 96.7178300
5/30/03 94.1587882
11/30/03 93.0253522
5/30/04 90.3790050
11/30/04 88.6846772
5/30/05 85.9199372
11/30/05 83.8378545
5/30/06 80.9992725
11/30/06 78.8301448
5/30/07 75.9366233
11/30/07 75.4903219
5/30/08 72.4629287
11/30/08 71.4550454
5/30/09 68.2871808
11/30/09 66.7257272
<PAGE>
SCHEDULE 2
TO
AMENDMENT NO. 5
TO FACILITY LEASE
-----------------
% of Facility Cost
------------------
5/30/10 63.4490806
11/30/10 61.3354928
5/30/11 57.9434392
11/30/11 55.2098524
5/30/12 51.6501850
11/30/12 48.2383909
5/30/13 44.4742213
11/30/13 40.6199953
5/30/14 36.6452941
11/30/14 32.6010159
5/30/15 28.5092155
11/30/15 24.3397104
5/30/16 20.0000000
<PAGE>
SCHEDULE 3
TO
AMENDMENT NO. 5
TO FACILITY LEASE
-----------------
SPECIAL CASUALTY VALUES
Perry One Alpha L.P.
--------------------
% of Facility Cost
------------------
11/30/94 109.2171478
5/30/95 109.0291307
11/30/95 108.6772696
5/30/96 108.1927347
11/30/96 107.5695610
5/30/97 106.8548064
11/30/97 106.1191377
5/30/98 105.3537453
11/30/98 104.5723117
5/30/99 103.2062150
11/30/99 102.7538660
5/30/00 101.1719603
11/30/00 100.4489652
5/30/01 98.5498775
11/30/01 97.6046872
5/30/02 95.3067245
11/30/02 94.1541483
5/30/03 91.4625515
11/30/03 90.1897067
5/30/04 87.3967425
11/30/04 85.5482170
5/30/05 82.6213064
11/30/05 80.3686682
5/30/06 77.3507121
11/30/06 74.9929356
5/30/07 71.9010114
11/30/07 71.2460489
5/30/08 67.9992057
11/30/08 66.7605257
5/30/09 63.3499312
<PAGE>
SCHEDULE 3
TO
AMENDMENT NO. 5
TO FACILITY LEASE
-----------------
% of Facility Cost
------------------
11/30/09 61.5331973
5/30/10 57.9880711
11/30/10 55.5921220
5/30/11 51.9031076
11/30/11 48.8572058
5/30/12 44.9690750
11/30/12 41.2118344
5/30/13 37.0843570
11/30/13 32.8480383
5/30/14 28.4714884
11/30/14 24.0045839
5/30/15 19.4683054
11/30/15 14.8313403
5/30/16 10.0000000
<PAGE>
SCHEDULE 4
TO
AMENDMENT NO. 5
TO FACILITY LEASE
-----------------
MODIFIED SPECIAL CASUALTY VALUES
Perry One Alpha L.P.
--------------------
% of Facility Cost $
------------------ -----------
11/30/94 34.573211320 17,461,217.84
5/30/95 34.931905308 17,642,376.42
11/30/95 35.189036008 17,772,240.41
5/30/96 35.363735329 17,860,472.39
11/30/96 35.430072081 17,893,975.80
5/30/97 35.434929001 17,896,428.79
11/30/97 35.434929001 17,896,428.79
5/30/98 35.434929001 17,896,428.79
11/30/98 35.436527851 17,897,236.29
5/30/99 35.455227684 17,906,680.65
11/30/99 34.891148275 17,621,792.06
5/30/00 34.904224453 17,628,396.19
11/30/00 34.195521667 17,270,465.49
5/30/01 34.238302873 17,292,072,16
11/30/01 33.196932110 16,766,127.33
5/30/02 33.044386693 16,689,084.19
11/30/02 32.039986688 16,181,811.46
5/30/03 32.095841953 16,210,021.19
11/30/03 30.726709197 15,518,540.00
5/30/04 30.749835676 15,530,220.04
11/30/04 29.353238479 14.824.867.92
5/30/05 28.829018708 14,560,110.46
11/30/05 27.920221874 14,101,122.16
5/30/06 28.053610158 14,168,489.98
11/30/06 27.484846446 13,881,235.58
5/30/07 27.751502510 14,015,910.36
11/30/07 25.642571068 12,950,793.47
5/30/08 24.884934740 12,568,148.86
11/30/08 22.696487370 11,462,872.41
<PAGE>
SCHEDULE 4
TO
AMENDMENT NO. 5
TO FACILITY LEASE
-----------------
% of Facility Cost $
------------------ -----------
5/30/09 22.208837961 11,216,584.83
11/30/09 20.605154366 10,406,643.62
5/30/10 20.533779029 10,370,595.47
11/30/10 19.425750318 9,810,985.01
5/30/11 18.868802632 9,529,698.30
11/30/11 17.216643845 8,695,274.67
5/30/12 16.065534571 8,113,906.35
11/30/12 14.338561286 7,241,697.62
5/30/13 12.539616149 6,333,139.47
11/30/13 10.699247136 5,403,660.17
5/30/14 8.729818732 4,408,999.36
11/30/14 7.684361922 3,880,990.87
5/30/15 7.802245122 3,940,527.84
11/30/15 6.269041151 3,166,182.40
5/30/16 3.438338824 1,736,534.76
<PAGE>
- -----------------------------------------------------------
AMENDMENT NO. 2
dated as of January 12, 1993
to
TAX INDEMNIFICATION AGREEMENT
dated as of March 16, 1987
between
PERRY ONE, INC.
and
PAROCK LIMITED PARTNERSHIP
and
OHIO EDISON COMPANY
- -----------------------------------------------------------
Sale and Leaseback of an Undivided Interest in
Perry Nuclear Power Plant Unit 1
- -----------------------------------------------------------
<PAGE>
AMENDMENT NO. 2, dated as of January 12, 1993, to TAX
INDEMNIFICATION AGREEMENT, dated as of March 16, 1987, as
amended by Amendment No. 1 thereto, dated as of November 1,
1991, between PERRY ONE, INC., a Delaware corporation, and
PAROCK LIMITED PARTNERSHIP, a New York limited partnership
(collectively, the "General Partners" and, individually, a
"General Partner") and OHIO EDISON COMPANY, an Ohio
corporation (the "Lessee"). Capitalized terms not otherwise
defined herein shall have the meaning set forth in an
Appendix A to the Participation Agreement, dated as of March
16, 1987, among Perry One Alpha Limited Partnership, the
Original Loan Participants listed on Schedule 1 thereto, PNPP
Funding Corporation, The First National Bank of Boston,
Irving Trust Company and Ohio Edison Company, as amended from
time to time (the "Participation Agreement"), Appendix A to
the Refinancing Agreement, dated as of November 1, 1991,
among Perry One Alpha Limited Partnership, PNPP Funding
Corporation, PNPP II Funding Corporation, The First National
Bank of Boston, the Bank of New York, and Ohio Edison Company
(the "Refinancing Agreement") or Appendix A to the
Refinancing Agreement dated as of January 1, 1993, among the
Perry One Alpha Limited Partnership, PNPP Funding
Corporation, PNPP II Funding Corporation, The First National
Bank of Boston, the Bank of New York, and Ohio Edison Company
(the "1993 Refinancing Agreement").
WHEREAS, the Limited Partner and the General Partners
have executed the Limited Partnership Agreement pursuant to
which the General Partners have acquired a general
partnership interest in the Owner Participant, and the Owner
Participant and the Lessee have executed the Participation
Agreement pursuant to which the Owner Participant has caused
the Owner Trustee to purchase the Undivided Interest from the
Lessee;
WHEREAS, the Owner Trustee has executed the Facility
Lease pursuant to which the Owner Trustee has leased the
Undivided Interest to the Lessee;
WHEREAS, the Lessee and the Owner Participant desire to
refinance the Fixed Rate Notes and the Collateral Lease Bonds
and have entered into the 1993 Refinancing Agreement; and
WHEREAS, the General Partners and the Lessee have
heretofore executed the Tax Indemnification Agreement, dated
as of March 16, 1987, as amended by Amendment No. 1 thereto,
dated as of November 1, 1991 (the "Tax Indemnification
Agreement"), and desire to amend the Tax Indemnification
Agreement as hereinafter provided to clarify their respective
rights and obligations arising from the transactions
contemplated by the 1993 Refinancing Agreement;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
The Tax Indemnification Agreement is hereby amended,
effective upon the execution and delivery of this Agreement,
as follows:
1. The preamble thereof is amended by replacing the
second sentence thereof in its entirety by the following two
sentences:
"Capitalized terms not otherwise defined herein shall
have the meaning set forth in an Appendix A to the
Participation Agreement, dated as of March 16, 1987, among
Perry One Alpha Limited Partnership, the Original Loan
Participants listed on Schedule 1 thereto, PNPP Funding
Corporation, The First National Bank of Boston, Irving Trust
Company and Ohio Edison Company, as amended from time to
time (the "Participation Agreement"), Appendix A to the
Refinancing Agreement, dated as of November 1, 1991, among
Perry One Alpha Limited Partnership, PNPP Funding
Corporation, PNPP II Funding Corporation, The First National
Bank of Boston, the Bank of New York, and Ohio Edison
Company (the "Refinancing Agreement") or Appendix A to the
Refinancing Agreement dated as of January 1, 1993, among the
Perry One Alpha Limited Partnership, PNPP Funding
Corporation, PNPP II Funding Corporation, The First National
Bank of Boston, The Bank of New York, and Ohio Edison
Company (the "1993 Refinancing Agreement"). The term
"Refinancing Documents" shall mean those documents,
instruments, and agreements delivered in connection with any
refinancing of the Notes, including, without limitation, the
Refinancing Agreement and the 1993 Refinancing Agreement."
2. Section 1(a)(12) thereof is amended by restating
such section in its entirety to read as follows:
"(12) Except as provided in Section 5 of the
Refinancing Agreement and Section 5 of the 1993 Refinancing
Agreement, Basic Rent will be paid on May, 30, 1987 and the
Basic Rent Payment Dates. Except as provided in Section 5
of the Refinancing Agreement and Section 5 of the 1993
Refinancing Agreement, Basic Rent will be payable in arrears
in semi-annual installments during the Basic Lease Term and
the Renewal Term as set forth in the Facility Lease."
3. Section 1(a)(19) thereof is amended by restating
such section in its entirety to read as follows:
"(19) The Owner Participant will be allowed a
deduction for (i) the premium paid with respect to the
Purchased Notes and the Purchased Bonds and (ii) the excess
of the Redemption Price of the Fixed Rate Notes defeased in
1993 (exclusive of the portion of such Redemption Price
representing interest accrued and unpaid on the Fixed Rate
Notes from November 30, 1992 up to, but not including, the
Refunding Date) over the principal amount thereof in each
case in the taxable year of the Owner Participant in which
such premium or excess, as the case may be, is paid (the
"Retirement Premium Deduction"); and the General Partners
will be entitled to take their respective 0.9% and 0.1%
distributive share of the Retirement Premium Deduction into
account in computing their federal income tax liability."
4. Section 1(a)(20) thereof is amended by restating
such section in its entirety to read as follows:
"(20) The Owner Participant will be allowed current
deductions for amortization of an amount equal to the
Refinancing Transaction Expenses to the extent payable by
the Owner Trustee pursuant to Section 15 of the Refinancing
Agreement or Section 16(a) of the 1993 Refinancing
Agreement, as the case may be, computed on a straight-line
basis from the Purchase Date or the Refunding Date, as the
case may be, to the end of the Basic Lease Term (the
"Refinancing Amortization Deductions"); and the General
Partners will be entitled to take their respective 0.9% and
0.1% distributive share of the Refinancing Amortization
Deductions into account in computing their federal income
tax liability."
This Amendment No. 2 may be executed in any number of
counterparts and by different parties hereto on separate
counterparts, each of which, when so executed and delivered,
shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the General Partners and the Lessee
have caused this Amendment No. 2 to Tax Indemnification
Agreement to be duly executed by their respective officers
thereunto duly authorized as of the date set forth below.
OHIO EDISON COMPANY
By:\s\ T. F. Struck, II
--------------------
Dated: January 12, 1993
----------------
PERRY ONE, INC.
By:\s\ David Elliman
-----------------
Dated: January 12, 1993
----------------
PAROCK LIMITED PARTNERSHIP
By: \s\ David Elliman
-----------------
Dated: January 12, 1993
----------------
<PAGE>
===========================================================
AMENDMENT NO. 3
dated as of October 12, 1994
to
TAX INDEMNIFICATION AGREEMENT
dated as of March 16, 1987
between
PERRY ONE, INC.
and
PAROCK LIMITED PARTNERSHIP
as General Partners,
and
OHIO EDISON COMPANY,
as Lessee
===========================================================
Sales and Leaseback of an Undivided Interest in
Perry Nuclear Power Plant Unit 1
===========================================================
<PAGE>
AMENDMENT NO. 3, dated as of October 12, 1994
("Amendment No. 3"), to the TAX INDEMNIFICATION AGREEMENT,
dated as of March 16, 1987, between PERRY ONE, INC., a
Delaware corporation and PAROCK LIMITED PARTNERSHIP, a New
York Limited Partnership (collectively the "General
Partners and, individually, a "General Partner") and OHIO
EDISON COMPANY, an Ohio corporation (the "Lessee") as
amended by Amendment No. 1 thereto dated as of November 1,
1991 and as amended by Amendment No. 2 thereto dated
January 12, 1993 (the "Tax Indemnification Agreement").
Capitalized terms not otherwise defined herein shall have
the meaning set forth in Appendix A to the Participation
Agreement, dated as of March 16, 1987, among Perry One
Alpha Limited Partnership, the Original Loan Participants
listed on Schedule 1 thereto, PNPP Funding Corporation, The
First National Bank of Boston, Irving Trust Company and
Ohio Edison Company, as amended from time to time (the
"Participation Agreement"), Appendix A to the Refinancing
Agreement, dated as of November 1, 1991, among Perry One
Alpha Limited Partnership, PNPP Funding Corporation, PNPP
II Funding Corporation, The First National Bank of Boston,
the Bank of New York and Ohio Edison Company (the
"Refinancing Agreement") or Appendix A to the Refinancing
Agreement dated as of January 1, 1993, among the Perry One
Alpha Limited Partnership, PNPP Funding Corporation, PNPP
II Funding Corporation, The First National Bank of Boston,
the Bank of New York, and Ohio Edison Company (the "1993
Refinancing Agreement).
W I T N E S S E T H:
--------------------
WHEREAS, the Limited Partner and the General
Partners have executed the Limited Partnership Agreement
pursuant to which the General Partners have acquired a
general partnership interest in the Owner Participant, and
the Owner Participant and the Lessee have executed the
Participation Agreement pursuant to which the Owner
Participant has caused the Owner Trustee to purchase the
Undivided Interest from the Lessee;
WHEREAS, the Owner Trustee has executed the
Facility Lease pursuant to which the Owner Trustee has
leased the Undivided Interest to the Lessee;
WHEREAS, Section 3(d) of the Facility Lease
provides for an adjustment to Basic Rent and the Schedules
of Casualty Values, Specialty Casualty Values and Modified
Special Casualty Values in the event of a Tax Rate Change
which results in the marginal federal income tax rate
applicable to corporations ("Tax Rate") differing from the
rate assumed in the Pricing Assumptions as in effect on the
Closing Date;
WHEREAS, section 11(b)(1) of the Code, as amended
by the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-
66), increases the Tax Rate assumed to be applicable to
each General Partner in the Pricing Assumptions from 34% to
35%; and
WHEREAS, the Lessor and Lessee have entered into
Lease Amendment No. 5 amending Schedules 1 through 4 of the
Facility Lease to reflect the increase in the Tax Rate.
WHEREAS, the General Partners and the Lessee have
heretofore executed the Tax Indemnification Agreement
providing for indemnification by the Lessee against the
loss of certain tax benefits;
WHEREAS, Section 7 of the Tax Indemnification
Agreement requires an adjustment to the Tax Assumptions to
reflect adjustments to Basic Rent pursuant to Section 3(d)
of the Facility Lease;
NOW, THEREFORE, in consideration of the premises
and of other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as
follows:
1. The Tax Indemnification Agreement is hereby
amended as follows:
(i) by replacing the words "Transaction
Documents or the Financing Documents or the
Refinancing Documents" or the words "Transaction
Documents or Financing Documents or the
Refinancing Documents" with the words
"Transaction Documents, the Financing Documents,
the Refinancing Documents or the Tax Rate
Adjustment Transaction Documents" throughout such
Tax Indemnification Agreement, except in Section
1(a)(13) thereof;
(ii) by replacing the words "Transaction
Documents and the Refinancing Documents" with the
words "Transaction Documents, the Refinancing
Documents and the Tax Rate Adjustment Transaction
Documents" throughout such Tax Indemnification
Agreement;
(iii) by replacing the words "Transaction
Documents and the Financing Documents and the
Refinancing Documents" with the words
"Transaction Documents, the Financing Documents,
the Refinancing Documents and the Tax Rate
Adjustment Transaction Documents" throughout such
Tax Indemnification Agreement;
(iv) by replacing the words "any
Transaction Document or any Financing Document or
any Refinancing Document" with the words "any
Transaction Document or any Financing Document or
any Refinancing Document or any Tax Rate
Adjustment Transaction Document" throughout such
Tax Indemnification Agreement;
(v) by replacing the words "any of the
Transaction Documents or any of the Refinancing
Documents" with the words "any of the Transaction
Documents or any of the Financing Documents or
any of the Tax Rate Adjustment Transaction
Documents" throughout such Tax Indemnification
Agreement; and
(vi) by replacing the words "Transaction
Documents, the Financing Documents, the
Refinancing Documents" with the words
"Transaction Documents, the Financing Documents,
the Refinancing Documents, the Tax Rate
Adjustment Transaction Documents" throughout such
Tax Indemnification Agreement.
2. Section 1(a)(9) of the Tax Indemnification
Agreement is hereby amended in its entirety to read, as
follows:
The Owner Participant will be allowed current
deductions for amortization of the following amounts
(the "Amortization Deductions"): (i) an amount equal
to Transaction Expenses to the extent payable by the
Owner Participant pursuant to Section 14 of the
Participation Agreement computed on a straight-line
basis over the Basic Lease Term and (ii) an amount
equal to the Tax Rate Change Transaction Expenses
payable on behalf of the Owner Trustee pursuant to
Section 5(a) of Amendment No. 7 to the Participation
Agreement dated the date hereof, computed on a
straight-line basis over the period commencing on the
Tax Rate Adjustment Date and ending on the last day of
the Basic Lease Term; and the General Partners will be
entitled to take their respective 0.9% or 0.1%
distributive share of the Amortization Deductions into
account in computing their federal income tax
liability.
3. Section 1(a)(13) of the Tax Indemnification
Agreement is hereby amended by (i) replacing the words "the
Transaction Documents or the Financing Documents or the
Refinancing Documents" with the words "the documents dated
the Tax Rate Adjustment Date delivered in connection with
the tax rate adjustment (the "Tax Rate Adjustment
Transaction Documents"), the Transaction Documents, the
Financing Documents or the Refinancing Documents", (ii)
deleting the word "and" immediately before clause (g) and
replacing it with "," and (iii) adding the following after
clause (g), and before the period:
"and (h) Supplemental Rent in the amount of the
Tax Rate Change Transaction Expenses payable under
Section 5(a) of Amendment No. 7 to the Participation
Agreement dated the date hereof".
4. Effective on and as of January 1, 1993,
Section 1(a)(14) of the Tax Indemnification Agreement is
hereby amended in its entirety to read, as follows:
"Each General Partner's marginal federal
rate of income tax is (i) 39.950685% for its
taxable year ending December 31, 1987, (ii) 34%
for each taxable year thereafter through December
31, 1992, and (iii) 35% for its taxable year
ended December 31, 1993 and each taxable year
thereafter, in each case without giving effect to
any credits against tax, and such marginal and
effective rates will be applicable to each item
of income and deduction contemplated by this
section 1(a)."
5. Sections 1(b)(9) and 2(b)(1) of the Tax
Indemnification Agreement are amended by replacing
"Sections 1(a)(13)(a)-(g)" with "Sections 1(a)(13)(a)-(h)"
in each place it appears.
6. Section 2(b)(1) of the Tax Indemnification
Agreement is amended by adding immediately after the words
"of the Lessee", as they appear in subsection (xiv) of said
Section 2(b)(1), the following:
", or (xv) any adjustment to Basic Rent or any
schedule pursuant to Section 3(d) of the Facility
Lease"
7. Except as amended hereby, the Tax
Indemnification Agreement shall survive and continue in
full force and effect.
8. This Amendment No. 3 may be executed in any
number of counterparts (and each of the parties hereto
shall not be required to execute the same counterpart).
Each counterpart of this Amendment No. 3, including a
signature page executed by each of the parties hereto shall
be an original of this Amendment No. 3, but all of such
counterparts together shall constitute one instrument.
9. This Amendment No. 3 shall in all respects
be governed by and construed in accordance with the laws of
the State of New York.
<PAGE>
IN WITNESS WHEREOF, the General Partners and the
Lessee have caused this Amendment No. 3 to the Tax
Indemnification Agreement to be duly executed as of the
date set forth above by their respective officers thereunto
duly authorized.
OHIO EDISON COMPANY
By: \s\ R.H. Marsh
--------------------
Name: R.H. Marsh
Title: Treasurer
PERRY ONE, INC.
By: \s\ Arthur S. Penn
------------------------
Name: Arthur S. Penn
Title: President
PAROCK LIMITED PARTNERSHIP
as a General Partner
By: PaRock, Inc.,
its Managing Partner
By: \s\Christopher J. Elliman
--------------------------
Name: Christopher J. Elliman
Title: President
<PAGE>
[EXECUTION COPY]
===========================================================
AMENDMENT NO. 6
dated as of January 12, 1993
to
PARTICIPATION AGREEMENT
dated as of March 16, 1987, as amended
among
SECURITY PACIFIC CAPITAL LEASING CORPORATION,
as Owner Participant
PNPP FUNDING CORPORATION,
as Funding Corporation
PNPP II FUNDING CORPORATION,
as New Funding Corporation
THE FIRST NATIONAL BANK OF BOSTON,
in its individual capacity and
as Owner Trustee under a Trust Agreement
dated as of March 16, 1987
with the Owner Participant,
THE BANK OF NEW YORK,
in its individual capacity and
as Indenture Trustee
and
OHIO EDISON COMPANY,
as Lessee
===========================================================
Sale and Leaseback of an Undivided
Interest in Perry Nuclear Power Plant Unit 1
===========================================================
<PAGE>
THIS AMENDMENT NO. 6, dated as of January 12, 1993
("Amendment No. 6"), to the Participation Agreement dated as
---------------
of March 16, 1987, as amended and as in effect on the date
hereof (the "Participation Agreement"), among the Owner
-----------------------
Participant identified on the cover page hereof ("Owner
-----
Participant"), PNPP FUNDING CORPORATION, a Delaware
- -----------
corporation ("Funding Corporation"), PNPP II FUNDING
-------------------
CORPORATION, a Delaware corporation ("New Funding
-----------
Corporation"), THE FIRST NATIONAL BANK OF BOSTON, a national
- -----------
banking association, in its individual capacity ("FNB") and
---
as Owner Trustee ("Owner Trustee") under a Trust Agreement,
-------------
dated as of March 16, 1987, with the Owner Participant, THE
BANK OF NEW YORK (formerly Irving Trust Company), a New York
banking corporation, in its individual capacity ("Bank of New
-----------
York") and as Indenture Trustee ("Indenture Trustee") under a
-----------------
Trust Indenture, Mortgage, Security Agreement and Assignment
of Facility Lease dated as of March 16, 1987, as amended
("Indenture"), with the Owner Trustee, and OHIO EDISON
---------
COMPANY, an Ohio corporation ("Lessee"),
------
W I T N E S S E T H:
-------------------
WHEREAS, the Owner participant, Funding Corporation,
New Funding Corporation, FNB, the Owner Trustee, Bank of New
York, the Indenture Trustee and the Lessee are parties to the
Participation Agreement;
WHEREAS, the parties hereto desire to permit the
repurchase of the 12% Fixed Rate Notes due May 30, 2016 ("12%
---
Notes") heretofore issued and Outstanding simultaneously with
- -----
the issuance of Additional Notes on January 12, 1993
("Purchase Date") to New Funding Corporation;
-------------
WHEREAS, Section 3(e) of the Facility Lease provides
for an adjustment to Basic Rent and to the schedules of
Casualty Values, Special Casualty Values and Modified Special
Casualty Values in order to preserve the Net Economic Return
of the Owner Participant in the event of the refunding of the
Fixed Rate Notes;
WHEREAS, Section 10.1(viii) of the Indenture provides,
among other things, that the Owner Trustee and Indenture
Trustee may, without consent of the Holders of the Fixed Rate
Notes Outstanding, execute a supplement to the Indenture in
order to evidence the issuance of and to provide the terms of
Additional Notes;
WHEREAS, the Owner Trustee and the Indenture Trustee
intend to execute Supplemental Indenture No. 3 to the
Indenture, dated as of January 1, 1993 ("Supplemental
------------
Indenture No. 3"), providing for the issuance under the
- ---------------
Indenture of the New Fixed Rate Notes as defined in
Supplemental Indenture No. 3;
WHEREAS, Section 10.2(ii) of the Indenture provides,
among other things, that, upon receipt of a written
instruction from the Lessee and the Owner Trustee, the
Indenture Trustee shall consent to certain amendments of the
Facility Lease; and
WHEREAS, the Owner Trustee and the Lessee intend to
execute Amendment No. 4, dated as of January 12, 1993 ("Lease
-----
Amendment No. 4"), to the Facility Lease, to amend certain
- ---------------
schedules thereto;
NOW THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Definitions.
-----------
Except as otherwise amended or defined herein and in
the recitals, capitalized terms used herein shall have the
respective meanings assigned to such terms in Appendix A to
the Participation Agreement.
SECTION 2. Amendments.
----------
(a) Section 8(a)(7) of the Participation Agreement is
amended in its entirety to read as follows:
"Location of the Chief Place of Business and Chief
-------------------------------------------------
Executive Office, etc. The chief place of business and chief
- ---------------------
executive office of FNB and the office where its records
concerning the accounts or contract rights relating to the
transaction contemplated hereby are kept is located in
Boston, Massachusetts and the chief place of business and
chief executive office of the Corporate Trust Division of the
Owner Trustee is located in Canton, Massachusetts."
(b) Section 8(b) of the Participation Agreement is
amended as follows:
(i) by replacing the reference to "and (6)"
in the first line thereof with a reference to ", (6),
and (7)"; and
(ii) by inserting the following new clause
(7):
"(7) Administration of Trust. The
-----------------------
principal place of administration of the
Trust shall be in Massachusetts."
(c) Section 18(a)(ii) of the Participation Agreement
is amended to read in its entirety as follows:
"if FNB, or the Owner Trustee, by regular
mail, to the First National Bank of Boston,
Corporate Trust Division, Mail Stop 45-02-15,
P.O. Box 1618, Boston, Massachusetts 02105-
1618, Attention: Manager, Corporate Trust
Division (Reference: Ohio Edison-Perry
Leveraged Lease), or if by hand delivery or
courier delivery, to the First National Bank
of Boston, Corporate Trust Division, Blue
Hill Office Park, Mail Stop 45-02-15, 150
Royall Street, Canton, Massachusetts 02021
(telecopy number 617-575-2078), Attention:
Manager, Corporate Trust Division (Reference:
Ohio Edison-Perry Leveraged Lease);"
(d) Schedule 5 to the Participation Agreement is
replaced in its entirety with Schedule 2 hereto.
(e) Appendix A to the Participation Agreement is
amended as follows:
(i) by restating the definition of "Refinancing
-----------
Documents" as follows:
---------
"'Refinancing Documents' shall mean those
---------------------
documents, instruments, and agreements
delivered in connection with any refinancing
of the Notes."
(ii) by inserting the following definitions in the
appropriate alphabetical order:
"'Amendment No. 6 to the Participation
------------------------------------
Agreement' shall mean Amendment No. 6 to the
---------
Participation Agreeement dated as of January
12, 1993 among the Owner Participant, Funding
Corporation, New Funding Corporation, the
Owner Trustee, the Indenture Trustee and the
Lessee.
'1993 Refinancing Agreement' shall mean that
--------------------------
certain Refinancing Agreement, dated as of
January 1, 1993 among the Owner Participant,
Funding Corporation, New Funding Corporation,
The First National Bank of Boston, The Bank
of New York and Ohio Edison Company."
SECTION 3. New Funding Corporation.
-----------------------
Subject to the terms and conditions hereof and of
Sections 2(d) and 11(c) of the Participation Agreement, on
the Purchase Date, New Funding Corporation shall make a
Refunding Loan to the Owner Trustee by paying to the
Indenture Trustee in immediately available funds an amount
equal to $6.364.000.
SECTION 4. Issuance of New Fixed Rate Notes by
-----------------------------------
Owner Trustee; Application of Proceeds.
- ---------------------------------------
Subject to the terms and conditions hereof and of
Sections 2(d) and 11(c) of the Participation Agreement and
Section 3.5 of the Indenture, on the Purchase Date, upon
receipt of the Refunding Loan to be made by New Funding
Corporation in accordance with Section 3 hereof, the
Indenture Trustee, at the direction of the Owner Trustee,
shall: (a) authenticate and deliver the New Fixed Rate
Notes, in the aggregate principal amount of the Refunding
Loan and bearing interest at the rates per annum and in the
amounts, respectively, set forth in, or determinable under,
Supplemental Indenture No. 3; and (b) apply the proceeds of
the Refunding Loan and other funds received hereunder and
under the 1993 Refinancing Agreement to the purchase and
prepayment (in full) of the principal of and the accrued
interest and premium on the refunded 12% Notes as directed by
the Owner Trustee.
SECTION 5. Implementation.
--------------
(a) Forms. The forms of Supplemental Indenture No. 3,
-----
Lease Amendment No. 4, and the Amendment to the Reimbursement
Agreement among the Lessee, The Fuji Bank, Limited, Chemical
Bank, and the Participating Banks named therein (the "Amended
-------
Reimbursement Agreement") are attached hereto as Exhibits A,
- -----------------------
B, and C, respectively.
(b) Request by the Owner Participant. In accordance
--------------------------------
with Section 2.01 of the Trust Agreement subject to the terms
and conditions of Section 11(c) of the Participation
Agreement, the Owner Participant hereby directs that the
Owner Trustee (i) execute and deliver this Amendment No. 6,
Supplemental Indenture No. 3 and Lease Amendment No. 4
(collectively the "1993 Amendments"); (ii) execute the New
---------------
Fixed Rate Notes and request the Indenture Trustee to
authenticate and deliver the New Fixed Rate Notes pursuant to
Section 3.5(2) of the Indenture; and (iii) execute and
deliver all other agreements, instruments and certificates
contemplated by the Transaction Documents, Financing
Documents, 1993 Refinancing Agreement and the 1993
Amendments.
(c) Instruction and Consent. In accordance with
-----------------------
Section 10.2 of the Indenture, the Lessee and the Owner
Trustee hereby instruct the Indenture Trustee to consent to
Lease Amendment No. 4 and the Indenture Trustee so consents.
In accordance with Section 10.1 of the Indenture, the Owner
Trustee and the Indenture Trustee hereby consent and agree to
Supplemental Indenture No. 3.
(d) Consent of Lessee. In accordance with Section
-----------------
8(b)(2) of the Participation Agreement, the Lessee hereby
consents to the refunding of the 12% Notes.
(e) Recordations and Filings. The Lessee agrees that
------------------------
it will cause to be made the recordations and filings set
forth in Schedule 1 hereto and that such filings and
recordations are all the recordations and filings that are
necessary in order to preserve, protect and perfect the Owner
Trustee's rights and interests under the Facility Lease, as
amended, and the first and prior security interest of the
Indenture Trustee in the Lease Indenture Estate under the
Indenture, as amended.
SECTION 6. Conditions To Effectiveness.
---------------------------
This Amendment No. 6 shall become effective as of the
date first above written if: (a) it shall have been duly
executed and delivered by all of the parties hereto and all
of the conditions set forth below in this Section 6 shall
have been satisfied (the date of such satisfaction being
referred to as the "Effective Date"); (b) the Owner
--------------
Participant shall have received (i) a duly executed and
delivered, legal, valid and binding Lease Amendment No. 4 and
Amendment No. 2 to the Tax Indemnification Agreement and (ii)
a replacement Letter of Credit reflecting the appropriate
Maximum Letter of Credit Amount; (c) all conditions referred
to in Section 14 of the 1993 Refinancing Agreement shall have
been satisfied; and (d) no Default, Event of Default, Event
of Loss, Deemed Loss Event, Reimbursement Default,
Reimbursement Event of Default, Indenture Default or
Indenture Event of Default shall have occurred and be
continuing.
SECTION 7. Expenses.
--------
(a) On the Purchase Date, the costs and expenses of
the Owner Participant (including legal fees and disbursements
of the Owner Participant's counsel and internal counsel), the
Owner Trustee, the Indenture Trustee and the Issuing Bank
with respect to the execution and delivery of this Amendment
No. 6 and the transactions contemplated herein shall be paid
in accordance with the provisions of Section 16 of the 1993
Refinancing Agreement.
(b) Notwithstanding anything in this Section 7 or in
Section 14 of the Participation Agreement to the contrary, in
the event the transactions contemplated by this Amendment No.
6 shall not be consummated for any reason, the Lessee shall
pay or cause to be paid, and shall indemnify and hold
harmless the Indenture Trustee, the Owner Trustee, the Owner
Participant, Funding Corporation and New Funding Corporation
in respect of all costs and expenses of such parties
including legal fees and disbursements of their counsel
related to this Amendment No. 6 and the 1993 Refinancing
Agreement and the transactions contemplated hereby and
thereby.
SECTION 8. Miscellaneous.
-------------
(a) Execution. This Amendment No. 6 may be executed
---------
in any number of counterparts and by different parties hereto
on separate counterparts, each of which, when so executed and
delivered, shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
Although this Amendment No. 6 is dated as of the date first
above written for convenience (and once it becomes effective
shall have effect from such date), the actual dates of
execution hereof by the parties hereto are respectively the
dates set forth under the signatures hereto, and this
Amendment No. 6 shall not be effective until all such
signatures shall have been duly affixed and all conditions
precedent set forth in Section 6 hereof shall have been
satisfied. This Amendment No. 6 amends and modifies the
Participation Agreement and is to be read with and form part
of the Participation Agreement. On and from the Effective
Date, any reference in any Transaction Document to the
Participation Agreement shall be deemed to refer to the
Participation Agreement as amended through the date hereof.
(b) Non-Waiver or Amendment. The agreements contained
-----------------------
in this Amendment shall not, except as expressly provided in
this Amendment No. 6, operate as a waiver of any right, power
or remedy of any party under any Transaction Document, nor
constitute, except as expressly provided in this Amendment
No. 6, a waiver of any provision of any Transaction Document.
(c) Governing Law. This Amendment No. 6 has been
-------------
negotiated and delivered in the State of New York and shall
be governed by, and be construed in accordance with, the laws
of the State of New York.
(d) Responsibility for Recitals. The recitals
---------------------------
contained herein shall be taken as the statements of the
Lessee, and the other parties hereto assume no responsibility
for the correctness of the same.
<PAGE>
IN WITNESS WHEREOF, intending to be legally bound, each
of the parties hereto has caused this Amendment No. 6 to the
Participation Agreement to be duly executed by its respective
officers thereunto duly authorized as of the dates set forth
below.
PNPP FUNDING CORPORATION
By: \s\ M.A. Ferruci
-------------------------------
Name: M.A. Ferruci
-----------------------------
Title: Vice President
----------------------------
Date: January 12, 1993
----------------------------
PNPP II FUNDING CORPORATION
By: \s\ Laurie A. Sullivan
-------------------------------
Name: Laurie A. Sullivan
-----------------------------
Title: Vice President
----------------------------
Date: January 12, 1993
-----------------------------
THE FIRST NATIONAL BANK OF BOSTON,
in its individual capacity and as
Owner Trustee under a Trust
Agreement dated as of March 16,
1987 with the Owner Participant
By: \s\ J.E. Mogavero
-------------------------------
Name: J.E. Mogavero
-----------------------------
Title: Authorized Officer
----------------------------
Date: January 12, 1993
-----------------------------
<PAGE>
THE BANK OF NEW YORK, in its
individual capacity and as
Indenture Trustee under a Trust
Indenture, Mortgage, Security
Agreement and Assignment of
Facility Lease dated as of March
16, 1987 with The First National
Bank of Boston in its individual
capacity and as Owner Trustee under
a Trust Agreement dated as of March
16, 1987 with the Owner Participant
By: \s\ W.T. Cunningham
-----------------------------
Name: W. T. Cunningham
----------------------------
Title: Vice President
--------------------------
Date: January 12, 1993
---------------------------
OHIO EDISON COMPANY, as Lessee
By: \s\ T.F Struck, II
-----------------------------
Name: T.F. Struck, II
---------------------------
Title: Assistant Treasurer
--------------------------
Date: January 12, 1993
---------------------------
SECURITY PACIFIC CAPITAL LEASING
CORPORATION
By: \s\ Gail D. Smedal
-----------------------------
Name: Gail D. Smedal
---------------------------
Title: Contract Administrator
---------------------------
Date: January 12, 1993
---------------------------
<PAGE>
EXHIBIT A
TO AMENDMENT
NO. 6 TO
THE PARTICIPATION
AGREEMENT
[Form of Supplemental Indenture No. 3]
<PAGE>
EXHIBIT B
TO AMENDMENT
NO. 6 TO
THE PARTICIPATION
AGREEMENT
[Form of Lease Amendment No. 4]
<PAGE>
EXHIBIT C
TO AMENDMENT
NO. 6 TO
THE PARTICIPATION
AGREEMENT
[Form of Amended Reimbursent Agreement]
<PAGE>
SCHEDULE 1 TO
AMENDMENT NO. 6 TO
THE PARTICIPATION AGREEMENT
Filings and Recordations to be Made by Lessee
- ---------------------------------------------
A. County Recorder, Lake County, Ohio:
(i) A financing statement on form UCC-1 naming the
Lessee, as lessee, the Owner Trustee, as lessor, and the
Indenture Trustee, as assignee of the Owner Trustee, in
respect of the Facility Lease; and
(ii) A financing statement on form UCC-1 naming the
Owner Trustee, as debtor, and the Indenture Trustee, as
secured party, in respect of the Lease Indenture Estate.
B. County Recorder, Summit County, Ohio:
(i) A financing statement on form UCC-1 naming the
Lessee, as lessee, the Owner Trustee, as lessor, and the
Indenture Trustee, as assignee of the Owner Trustee, in
respect of the Facility Lease;
(ii) A financing statement on form UCC-1 naming the
Owner Trustee, as debtor, and the Indenture Trustee, as
secured party, in respect of the Lease Indenture Estate.
C. Secretary of State, Ohio:
(i) A financing statement on form UCC-1 naming the
Lessee, as lessee, the Owner Trustee, as lessor, and the
Indenture Trustee, as assignee of the Owner Trustee, in
respect of the Facility Lease;
(ii) A financing statement on form UCC-1 naming the
Owner Trustee, as debtor, and the Indenture Trustee, as
secured party, in respect of the Lease Indenture Estate.
D. Commonwealth of Massachusetts, Suffolk County:
A financing statement on form UCC-1 naming the Owner
Trustee, as debtor, and the Indenture Trustee, as secured
party, in respect of the Lease Indenture Estate.
<PAGE>
SCHEDULE 2 TO
AMENDMENT NO. 6 TO THE
PARTICIPATION AGREEMENT
PRICING ASSUMPTIONS
-------------------
See ABC File oep93-sp-refi-p 13-Jan-1993 7:35:13.00
Date/Time last modified 12-Jan-1993 11:12:39.0
(A hard copy of which is retained in
the files of the Owner Participant,
the Lessee, and their respective
counsel and McManus & Miles)
1. In addition for the generation of casualty value
schedules, the following input shall be used:
Casualty Value - Report 9
- --------------
Added days return (question 22.5): 0
Added residual (question 22.7): 20%
Added residual discount rate (question 22.7.1): 9.12%
Column 2, Heading "Full TV (TV + Add Exp + Add Resid)"
Special Casualty Values - Report 9
- -----------------------
Added days return (question 22.5): 0
Added residual (question 22.7): 10%
Added residual discount rate (question 22.7.1): 9.12%
Column 2, Heading "Full TV (TV + Add Exp + Add Resid)"
Modified Special Casualty Value - Report 9
- -------------------------------
Added days return (question 22.5): 0
Added residual (question 227): 0%
Added residual discount rate (question 22.7.1): 9.12%
Column 8 Heading "Full TV + Rent - Loan Bal Before DS"
<PAGE>
I.C.5
-----
___________________________________________________
___________________________________________________
AMENDMENT NO. 7
dated as of October 12, 1994
to
PARTICIPATION AGREEMENT
dated as of March 16, 1987, as
amended by the Amendment No. 1 thereto
dated as of September 1, 1987,
Amendment No. 3 thereto
dated as of May 16, 1988,
Amendment No. 4 thereto dated as of
November 1, 1991,
Amendment No. 5 thereto dated
as of November 24, 1992, and
Amendment No. 6 thereto dated
as of January 12, 1993
among
SECURITY PACIFIC CAPITAL LEASING CORPORATION,
as Owner Participant
PNPP FUNDING CORPORATION,
PNPP II FUNDING CORPORATION,
THE FIRST NATIONAL BANK OF BOSTON,
in its individual capacity and
as Owner Trustee under a Trust Agreement
dated as of March 16, 1987,
with the Owner Participant,
THE BANK OF NEW YORK,
as Indenture Trustee
and OHIO EDISON COMPANY,
as Lessee
___________________________________________________
___________________________________________________
<PAGE>
THIS AMENDMENT NO. 7 dated as of October 12, 1994
("Amendment No. 7") to the Participation Agreement dated as
---------------
of March 16, 1987, as amended by Amendment No. 1 thereto
dated as of September 1, 1987, Amendment No. 3 thereto
dated as of May 16, 1988, Amendment No. 4 thereto dated as
of November 1, 1991, Amendment No. 5 thereto dated as of
November 24, 1992, and Amendment No. 6 thereto dated as of
January 12, 1993 and as in effect on the date hereof (the
"Participation Agreement")1/, among the Owner Participant
-----------------------
identified on the cover page hereof (the "Owner
-----
Participant"), PNPP FUNDING CORPORATION, a Delaware
- -----------
corporation ("Funding Corporation"), PNPP II FUNDING
-------------------
CORPORATION, a Delaware corporation ("New Funding
-----------
Corporation"), THE FIRST NATIONAL BANK OF BOSTON, a
- -----------
national banking association, in its individual capacity
("FNB") and as Owner Trustee (the "Owner Trustee") under a
--- -------------
Trust Agreement, dated as of March 16, 1987, with the Owner
Participant, THE BANK OF NEW YORK (formerly Irving Trust
Company), a New York banking corporation, in its individual
capacity ("Bank of New York") and as Indenture Trustee (the
----------------
"Indenture Trustee") under a Trust Indenture, Mortgage,
-----------------
Security Agreement and Assignment of Facility Lease, dated
as of March 16, 1987, as supplemented and amended by the
Supplemental Indenture No. 1, dated as of September 1,
1987, Supplemental Indenture No. 2 dated as of November 1,
1991 and Supplemental Indenture No. 3 dated as of January
1, 1993 (the "Indenture"), with the Owner Trustee, and OHIO
---------
EDISON COMPANY, an Ohio corporation (the "Lessee"),
------
W I T N E S S E T H :
-------------------
WHEREAS, the Owner Participant, Funding
Corporation, New Funding Corporation, the Owner Trustee,
the Indenture Trustee and the Lessee have previously
entered into the Participation Agreement; and
- --------------------------------
1. A document entitled Amendment No.2, a copy of which is
dated as of March 15, 1988, to the Participation Agreement
was not entered into or executed by the parties.
WHEREAS, Funding Corporation desires to cease to
be a party to the Participation Agreement; and
WHEREAS, Section 3(d) of the Facility Lease
provides for an adjustment to Basic Rent and to the
schedules of Casualty Values, Special Casualty Values and
Modified Special Casualty Values in order to preserve the
Net Economic Return of the Owner Participant in the event,
among other things, of any change ("Tax Rate Change") in
the Code enacted into law after the Closing Date and prior
to March 19, 2007, which results in the change in the
marginal federal income tax rate (the "Tax Rate")
applicable to corporations differing from the rate assumed
in the Pricing Assumptions as in effect on the Closing
Date; and
WHEREAS, Section 2(e) of the Participation
Agreement provides that, subject to the satisfaction of the
conditions set forth in Sections 2(d) and 11(c) of the
Participation Agreement, the Lessee and the Lessor shall
reoptimize the amortization schedules for the Outstanding
Fixed Rate Notes, in accordance with and in the manner
contemplated by the Closing Letter, upon the occurrence of
a Tax Rate Adjustment; and
WHEREAS, Section 11(b)(1) of the Code, as amended
by the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-
66), generally effective for tax years beginning on or
after January 1, 1993, increases the Tax Rate assumed to be
applicable to the Owner Participant in the Pricing
Assumptions from 34% to 35%; and
WHEREAS, Section 10.2(ii) of the Indenture
provides, among other things, that, upon receipt of a
written instruction from the Lessee and the Owner Trustee,
the Indenture Trustee shall consent to certain amendments
to the Facility Lease; and
WHEREAS, the Owner Trustee and the Lessee intend
to execute Amendment No. 5 to the Facility Lease, dated as
of October 12, 1994 ("Lease Amendment No. 5"), to amend
---------------------
certain provisions thereof, Appendix A thereto and certain
schedules thereof; and
WHEREAS, in order to carry out the provisions of
Section 2(e) of the Participation Agreement and such
Section 3(d) of the Facility Lease, the Owner Participant,
Funding Corporation, New Funding Corporation, the Owner
Trustee, the Indenture Trustee and the Lessee wish to amend
the Participation Agreement to establish and preserve the
pricing file, which incorporates the Assumptions and the
new 35% Tax Rate and other assumptions, created by the
Owner Participant in connection with the Tax Rate Change,
and reoptimize the amortization schedules for the
Outstanding Fixed Rate Notes by entering into this
Amendment No. 7.
NOW, THEREFORE, in consideration of the premises
and of other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
SECTION 1. Definitions.
Except as otherwise amended or defined herein and
in the recitals, capitalized terms used herein shall have
the respective meanings assigned to such terms in Appendix
A to the Participation Agreement.
SECTION 2. Amendments.
(a) Section 2(c) Releveraging. Section 2(c) of
-------------------------
the Participation Agreement is amended by inserting before
the end of the first sentence thereof after the phrase "Net
Economic Return" and before the period the following
phrase:
"; provided that in order to determine the amount
--------
of the non-recourse loans to the Lessor the Owner
Participant will prepare a pricing file which
preserves Net Economic Return and incorporates
all of the Assumptions and the Tax Rate
Assumptions".
(b) Section 2(d) Refunding of Notes. Section
-------------------------------
2(d) of the Participation Agreement is amended by inserting
before the end of the penultimate sentence thereof after
the phrase "Net Economic Return" the following phrase:
"; provided that in order to determine the
--------
foregoing the Owner Participant will prepare a
pricing file which preserves Net Economic Return
and incorporates all of the Assumptions and the
Tax Rate Assumptions".
(c) Section 11(c) Conditions to Releveraging and
--------------------------------------------
Refunding. Section 11(c) of the Participation Agreement is
- ---------
amended as follows:
(i) by deleting the heading "Conditions to
Releveraging or Refunding." and inserting in lieu
thereof "Conditions to Releveraging, Refunding or
Reoptimization."; and
(ii) by deleting the phrase "Releveraging Date or
Refunding Date" each time it appears in clauses (4)
and (6) of such Section and inserting in lieu thereof
the phrase "Releveraging Date, Refunding Date or
Reoptimization Date" throughout such Section; and
(iii) by inserting in the first paragraph therein
before the first parenthetical and after the phrase
"of the following conditions precedent" the following
new parenthetical:
"(but in the case of a reoptimization, only the
conditions precedent specified in clauses (3),
(4), (6), (7) and (9) below)".
(d) Section 18 Notices, etc. Section 18(iv) of
------------------------
the Participation Agreement is amended by inserting at the
end thereof before the semicolon after the phrase
"Attention: President" the following phrase:
"and if to New Funding Corporation, at c/o J.H.
Management Corp., P.O. Box 4024, Boston, Massachusetts
02101-4024, Attention: Nancy D. Smith, President".
(e) Schedule 1 "Participants". Paragraph A of
--------------------------
Schedule 1 to the Participation Agreement, which sets forth
the address for notice to the Owner Participant, is amended
to read in its entirety as follows:
"A. OWNER PARTICIPANT
Security Pacific Capital Leasing Corporation
Four Embarcadero Center
Suite 1200
San Francisco, California 94111
Attention: Contracts Administration
Telecopy: (415) 765-7373"
(f) Appendix A. Appendix A to the Participation
----------
Agreement is amended as follows:
(i) by restating the definition of "Funding
Corporation" to read as follows:
"`Funding Corporation' shall mean, as of the
`Effective Date', as such term is defined in
Section 6(a) of Amendment No. 6 to the
Participation Agreement, New Funding
Corporation."
(ii) by inserting in the appropriate alphabetical
order the following new definitions:
"`Amendment No. 7 to the Participation Agreement'
shall mean Amendment No. 7, dated as of October
12, 1994, to the Participation Agreement, among
the Owner Participant, Funding Corporation, New
Funding Corporation, the Owner Trustee, the
Indenture Trustee and the Lessee."
"`Closing Letter' shall have the meaning set
forth in Section 2(c) of the Participation
Agreement, a copy of which is attached as
Exhibit D to Amendment No. 7 to the Participation
Agreement."
"`Reoptimization Date' shall mean a date on which
a reoptimization pursuant to Section 2(e) of the
Participation Agreement is to be effected."
"`Tax Rate Adjustment' shall have the meaning set
forth in Section 2(c) of the Participation
Agreement."
"`Tax Rate Adjustment Date' shall have the
meaning assigned to such term in Section 4 of
Amendment No. 7 to the Participation Agreement."
"`Tax Rate Assumptions' shall mean the tax rate
change assumptions set forth on Schedule 1 to
Amendment No. 7 to the Participation Agreement."
"`Tax Rate Change' shall have the meaning set
forth in Section 3(d) of the Facility Lease."
"`Tax Rate Change Transaction Expenses' shall
mean the amount assigned to such term in Schedule
1 to Amendment No. 7 to the Participation
Agreement."
(g) Parties In Interest. The parties agree that
-------------------
Funding Corporation shall cease to be a party to the
Participation Agreement and shall have no further rights,
obligations or interest, except as otherwise provided in
Section 13 of the Participation Agreement, thereunder. The
Participation Agreement is hereby amended generally so that
all references to Funding Corporation shall be deemed to
refer to New Funding Corporation, to the extent that such
references relate to the rights, obligations or interest of
Funding Corporation subsequent to the "Effective Date", as
such term is defined in Section 6(a) of Amendment No. 6 to
the Participation Agreement.
SECTION 3. Implementation.
(a) Forms. The forms of Lease Amendment No. 5
-----
and the Eighth Amendment, dated as of October 12, 1994, to
the Reimbursement Agreement, as amended heretofore, among
the Lessee, The Fuji Bank, Limited, Chemical Bank and the
Participating Banks named therein (the "Amendment to
------------
Reimbursement Agreement") are attached hereto as Exhibits A
- -----------------------
and B, respectively, and the reoptimized amortization
schedules for the Outstanding Fixed Rate Notes are attached
hereto as Exhibits C-1, C-2, C-3, and C-4, respectively.
(b) Request by the Owner Participant. In
--------------------------------
accordance with Section 2.01 of the Trust Agreement,
subject to the terms and conditions of Section 11(c) of the
Participation Agreement, the Owner Participant hereby
directs that the Owner Trustee (i) execute and deliver this
Amendment No. 7 and Lease Amendment No. 5 (collectively,
the "1994 Amendments"), (ii) execute and deliver all other
---------------
agreements, instruments and certificates contemplated by
the Transaction Documents and the 1994 Amendments, (iii)
instruct the Indenture Trustee to (x) consent to Lease
Amendment No. 5 and (y) attach the reoptimized amortization
schedules (attached hereto as Exhibits C-1, C-2, C-3 and C-
4) for the Outstanding Fixed Rate Notes in place of the
existing amortization schedules to such Notes and (iv)
subject to the terms of the Trust Agreement, to take such
other action in connection with the foregoing as the Owner
Participant may from time to time direct.
(c) Instruction and Consent. In accordance with
-----------------------
Section 10.2(ii) of the Indenture, the Lessee and the Owner
Trustee hereby instruct the Indenture Trustee to consent to
Lease Amendment No. 5 and the Indenture Trustee hereby so
consents.
(d) Consent of Lessee. In accordance with
-----------------
Section 8(b)(2) of the Participation Agreement, the Lessee
hereby consents to the revised amortization schedules
(attached hereto as Exhibits C-1, C-2, C-3 and C-4) to the
respective Outstanding Fixed Rate Notes in connection with
the Tax Rate Change.
(e) Recordations and Filings. The Lessee agrees
------------------------
that it will cause to be made the recordations and filings
set forth in Schedule 2 hereto and that such recordations
and filings are all of the recordations and filings that
are necessary in order to preserve, protect and perfect the
Owner Trustee's rights and interests under the Facility
Lease, as amended by Amendment Nos. 1, 2, 3, 4 and 5
thereto, and the first and prior security interest of the
Indenture Trustee in the Lease Indenture Estate under the
Indenture, as amended.
SECTION 4. Conditions To Effectiveness.
This Amendment No. 7 shall become effective as of
the date first above written if: (a) it shall have been
duly executed and delivered by all of the parties hereto
and all of the conditions set forth below in this Section 4
shall have been satisfied (the date of such satisfaction
being referred to as the "Tax Rate Adjustment Date"); (b)
------------------------
the Owner Participant shall have received a duly executed
and delivered, legal, valid, and binding Lease Amendment
No. 5 and Amendment No. 3 to the Tax Indemnification
Agreement, as amended heretofore ("TIA Amendment No. 3");
(c) the Owner Participant shall have received the
replacement Letter of Credit having Maximum Drawing Amounts
(as defined in the Letter of Credit) corresponding to the
Modified Special Casualty Values, as adjusted on the date
hereof, from The Fuji Bank, Limited, in substantially the
form of Exhibit A to the Reimbursement Agreement, in
replacement of the existing Letter of Credit; (d) the Owner
Participant shall have received opinions from Owner
Participant's Special Tax Counsel, Lessee's Senior
Attorney, Lessee's Special Counsel, Lessee's NRC Counsel,
special counsel and special Japanese counsel to The Fuji
Bank, Limited, and such other opinions as the Owner
Participant shall reasonably request and all such opinions
shall be in form and substance satisfactory to the Owner
Participant; (e) no Default, Event of Default, Event of
Loss, Deemed Loss Event, Reimbursement Default,
Reimbursement Event of Default, Indenture Default or
Indenture Event of Default shall have occurred and be
continuing; and (f) subject to the satisfaction of any and
all other conditions set forth in Sections 2(d) and 11(c)
of the Participation Agreement.
SECTION 5. Expenses.
(a) On the Tax Rate Adjustment Date, (i) the
costs and expenses of the Owner Participant (including, but
not limited to, Owner Participant's computer lease analysis
expenses, out-of-pocket expenses and legal fees and
disbursements of the Owner Participant's counsel and any
financial advisors employed by it) as well as the fees and
expenses (including, but not limited to, all computer lease
analysis and travel related costs) of the Owner Trustee,
the Indenture Trustee, the Collateral Trust Trustee,
Funding Corporation, New Funding Corporation and the
Issuing Bank with respect to the negotiation, execution and
delivery of this Amendment No. 7, Lease Amendment No. 5,
TIA Amendment No. 3, the replacement Letter of Credit, the
transactions contemplated herein and therein and all other
agreements, documents or instruments prepared in connection
therewith and all fees, taxes, expenses and disbursements
incurred by such parties, including, but not limited to,
legal fees and disbursements of their counsel, in
connection with the transactions contemplated hereby and
thereby and (ii) all stenographic, printing, reproduction,
and other out-of-pocket expenses (other than investment
banking or brokerage fees) incurred in connection with the
execution and delivery of this Amendment No. 7, Lease
Amendment No. 5, TIA Amendment No. 3, the replacement
Letter of Credit and all other agreements, documents or
instruments prepared in connection therewith (collectively,
the "Tax Rate Change Transaction Expenses") shall be paid
------------------------------------
by the Lessee, on behalf of the Owner Trustee, as
Supplemental Rent in accordance with the provisions of this
Section 5, Section 20 of the Facility Lease and Sections
14(b)(2)(b) and (g) of the Participation Agreement.
(b) Notwithstanding anything in this Section 5
or in Section 14 of the Participation Agreement to the
contrary, (i) in the event the transactions contemplated by
this Amendment No. 7 shall not be consummated for any
reason, the Lessee shall pay or cause to be paid, and shall
indemnify and hold harmless the Indenture Trustee, the
Collateral Trust Trustee, the Owner Trustee, the Owner
Participant, Funding Corporation and New Funding
Corporation in respect of all Tax Rate Change Transaction
Expenses and (ii) in any event, the Lessee shall pay or
cause to be paid directly (and not as Supplemental Rent)
that portion of the Tax Rate Change Transaction Expenses
which exceeds the Tax Rate Change Transaction Expenses
payable by the Owner Trustee pursuant to clause (a) above
and as indicated on Schedule 1 hereto and shall indemnify
and hold the Lessor and the Owner Participant harmless for
any such amounts.
SECTION 6. Miscellaneous.
(a) Execution. This Amendment No. 7 may be
---------
executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which,
when so executed and delivered, shall be an original, but
all such counterparts shall together constitute but one and
the same instrument. Although this Amendment No. 7 is
dated as of the date first above written for convenience
(and once it becomes effective shall have effect from such
date), the actual dates of execution hereof by the parties
hereto are respectively the dates set forth under the
signatures hereto, and this Amendment No. 7 shall not be
effective until all such signatures shall have been duly
affixed and all conditions precedent set forth in Section 4
hereof shall have been satisfied. This Amendment No. 7
amends and modifies the Participation Agreement and is to
be read with and form part of the Participation Agreement.
On and from the Tax Rate Adjustment Date, any reference in
any Transaction Document to the Participation Agreement
shall be deemed to refer to the Participation Agreement as
amended and modified by Amendment No. 1 thereto dated as of
September 1, 1987, Amendment No. 3 thereto dated as of May
16, 1988, Amendment No. 4 thereto dated as of November 1,
1991, Amendment No. 5 thereto dated as of November 24,
1992, Amendment No. 6 thereto dated as of January 12, 1993,
and this Amendment No. 7.
(b) Non-Waiver or Amendment. The agreements
-----------------------
contained in this Amendment shall not, except as expressly
provided in this Amendment, operate as a waiver of any
right, power or remedy of any party under any Transaction
Document, nor constitute, except as expressly provided in
this Amendment No. 7, a waiver of any provision of any
Transaction Document.
(c) Governing Law. This Amendment No. 7 has
-------------
been negotiated and delivered in the State of New York and
shall be governed by, and construed in accordance with, the
laws of the State of New York.
(d) Responsibility for Recitals. The recitals
---------------------------
contained herein shall be taken as the statements of the
Lessee, and the other parties hereto assume no
responsibility for the correctness of the same.
IN WITNESS WHEREOF, intending to be legally
bound, each of the parties hereto has caused this Amendment
No. 7 to the Participation Agreement to be duly executed by
its respective officers thereunto duly authorized as of the
dates set forth below.
PNPP FUNDING CORPORATION
By: \s\ M.A. Ferrucci
--------------------------
Name: M.A. Ferrucci
Title: President
Date: October 12, 1994
PNPP II FUNDING CORPORATION
By: \s\ Lannhi Tran
-------------------------
Name: Lannhi Tran
Title: Vice President
Date: October 12, 1994
THE FIRST NATIONAL BANK OF BOSTON,
in its individual capacity and as
Owner Trustee under a Trust Agreement,
dated as of March 16, 1987, with the
Owner Participant
By: \s\ J.E. Mogavero
--------------------------
Name: J.E. Mogavero
Title: Authorized Officer
Date: October 12, 1994
THE BANK OF NEW YORK, in its individual
capacity and as Indenture Trustee under a
Trust Indenture, Mortgage, Security
Agreement and Assignment of Facility Lease
dated as of March 16, 1987, as amended
with The First National Bank of Boston in
its individual capacity and as Owner
Trustee under a Trust Agreement, dated as
of March 16, 1987, with the Owner
Participant.
By: \s\ Mary Jane Morrissey
----------------------------
Name: Mary Jane Morrissey
Title: Assistant Vice President
Date: October 12, 1994
OHIO EDISON COMPANY, as Lessee
By: \s\ R.H. Marsh
--------------------------
Name: R.H. Marsh
Title: Treasurer
Date: October 12, 1994
SECURITY PACIFIC CAPITAL LEASING
CORPORATION, as Owner Participant
By: \s\ Raleigh W. Klein
--------------------------
Name: Raleigh W. Klein
Title: Vice President
Date: October 12, 1994
<PAGE>
SCHEDULE 1
TO
AMENDMENT NO. 7
TO
PARTICIPATION AGREEMENT
-----------------------
TAX RATE CHANGE ASSUMPTIONS
---------------------------
SEE WARREN & SELBERT ABC FILE OEPTXSECPACFINR DATED 6-
OCT-1994 23:35:14, LAST MODIFIED 6-OCT-94 21:51:07 (A
HARD COPY OF WHICH IS RETAINED IN THE FILES OF OWNER
PARTICIPANT, LESSEE AND McMANUS & MILES)
1. Tax Rate Change
Transaction Expenses $31,500.00 paid on the Tax
Rate Adjustment Date by the
Lessee on behalf of the Owner
Trustee as Supplemental Rent
and amortized for Federal
income tax purposes on a
straight line basis over the
remaining Basic Lease Term.
2. Owner Participant's
Marginal Federal
Tax Rate 35 percent in 1993 and each
year after.
3. Basic Rent payments See Schedule 1 to Amendment
No. 5 to Facility Lease.
4. Amortization of Notes See Exhibits C-1, C-2, C-3
and C-4 to Amendment No. 7 to
Participation Agreement.
<PAGE>
SCHEDULE 2
TO
AMENDMENT NO. 7
TO
PARTICIPATION AGREEMENT
-----------------------
RECORDATIONS AND FILINGS
------------------------
UCC-1 Financing Statements and Other Filings
A. Secretary of Commonwealth, Pennsylvania
(i) A financing statement on form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
B. County Recorder, Summit County, Ohio:
(i) A financing statement on form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
C. Secretary of State, Ohio
(i) A financing statement on Form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
<PAGE>
EXHIBIT A
TO AMENDMENT
NO. 7 TO
PARTICIPATION
AGREEMENT
-------------
[FORM OF LEASE AMENDMENT NO. 5]
<PAGE>
EXHIBIT B
TO AMENDMENT
NO. 7 TO
PARTICIPATION
AGREEMENT
-------------
[FORM OF AMENDMENT TO REIMBURSEMENT AGREEMENT]
<PAGE>
EXHIBITS C-1,
C-2, C-3 and C-4,
respectively,
TO AMENDMENT
NO. 5 TO
PARTICIPATION
AGREEMENT
-------------
[FORMS OF REOPTIMIZED AMORTIZATION SCHEDULES
FOR THE FIXED RATE NOTES]
<PAGE>
EXHIBIT D
TO AMENDMENT
NO. 7 TO
PARTICIPATION
AGREEMENT
-------------
[COPY OF CLOSING LETTER]
<PAGE>
I.A.5
-----
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE AS
AMENDED BY THIS AMENDMENT NO. 5 THERETO HAVE BEEN ASSIGNED
TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF, THE
BANK OF NEW YORK, AS INDENTURE TRUSTEE UNDER A TRUST
INDENTURE, MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF
FACILITY LEASE DATED AS OF MARCH 16, 1987, AS SUPPLEMENTED BY
THE SUPPLEMENTAL INDENTURE NO. 1 THERETO, DATED AS OF
SEPTEMBER 1, 1987, BY THE SUPPLEMENTAL INDENTURE NO. 2
THERETO, DATED AS OF NOVEMBER 1, 1991, AND BY THE
SUPPLEMENTAL INDENTURE NO. 3 THERETO, DATED AS OF JANUARY 1,
1993. THIS AMENDMENT NO. 5 HAS BEEN EXECUTED IN SEVERAL
COUNTERPARTS. SEE SECTION 3(b) OF THIS AMENDMENT NO. 5 FOR
INFORMATION CONCERNING THE RIGHTS OF HOLDERS OF VARIOUS
COUNTERPARTS HEREOF.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART
___________________________________________________________
AMENDMENT NO. 5
dated as of October 12, 1994
to
FACILITY LEASE
dated as of March 16, 1987,
as amended as of September 1, 1987,
further amended as of November 1, 1991,
further amended as of November 24, 1992,
and further amended as of January 12, 1993,
between
THE FIRST NATIONAL BANK OF BOSTON
not in its individual capacity, but solely
as Owner Trustee under a Trust Agreement,
dated as of March 16, 1987, with
SECURITY PACIFIC CAPITAL LEASING CORPORATION,
as Lessor
and
OHIO EDISON COMPANY,
as Lessee
___________________________________________________________
Original Facility Lease Recorded on March 19, 1987, at
Mortgage Book Volume 293, Page 184, Lake County, Ohio
Recorder's Office.
Amendment No. 1 to Facility Lease Recorded at Mortgage
Book Volume ___, Page ___, Lake County, Ohio Recorder's
Office.
Amendment No. 2 to Facility Lease Recorded at Mortgage
Book Volume ___, Page ___, Lake County, Ohio Recorder's
Office.
Amendment No. 3 to Facility Lease Recorded at Mortgage
Book Volume __, Page __, Lake County, Ohio Recorder's Office.
Amendment No. 4 to Facility Lease Recorded at Mortgage
Book Volume ___, Page ___, Lake County, Ohio Recorder's
Office.
AMENDMENT NO. 5, dated as of October 12, 1994
("Amendment No. 5"), to the Facility Lease, dated as of March
16, 1987, as amended by Amendment No. 1 thereto, dated as of
September 1, 1987 ("Amendment No. 1"), Amendment No. 2
thereto, dated as of November 1, 1991 ("Amendment No. 2"),
Amendment No. 3 thereto, dated as of November 24, 1992
("Amendment No. 3"), and Amendment No. 4 thereto, dated as of
January 12, 1993 ("Amendment No. 4"), all as in effect on the
date hereof (the "Facility Lease"), between THE FIRST
NATIONAL BANK OF BOSTON, a national banking association, not
in its individual capacity, but solely as Owner Trustee (the
"Lessor") under a Trust Agreement, dated as of March 16,
1987, with SECURITY PACIFIC CAPITAL LEASING CORPORATION, as
Owner Participant and OHIO EDISON COMPANY, an Ohio
corporation (the "Lessee").
W I T N E S S E T H :
-------------------
WHEREAS, the Lessor and the Lessee have heretofore
entered into the Facility Lease providing for the lease by
the Lessor to the Lessee of the Undivided Interest; and
WHEREAS, Section 3(d) of the Facility Lease
provides for an adjustment to Basic Rent and to the schedules
of Casualty Values, Special Casualty Values and Modified
Special Casualty Values so as to preserve Owner Participant's
Net Economic Return in the event, among other things, of any
change ("Tax Rate Change") in the Code enacted into law after
the Closing Date and prior to March 19, 2007, which results
in the change in the marginal federal income tax rate (the
"Tax Rate") applicable to corporations differing from the
rate assumed in the Pricing Assumptions as in effect on the
Closing Date; and
WHEREAS, Section 11(b)(1) of the Code, as amended
by the Omnibus Budget Reconciliation Act of 1993 (P.L.
103-66), generally effective for tax years beginning on or
after January 1, 1993, increases the Tax Rate assumed to be
applicable to the Owner Participant in the Pricing
Assumptions from 34% to 35%; and
WHEREAS, as a result of the Tax Rate Change, in
order to carry out the provisions of Section 3(d) of the
Facility Lease, the Owner Trustee and the Lessee desire to
execute this Amendment No. 5 to amend certain Sections of the
Facility Lease, amend Appendix A thereto, and amend the
schedules of Basic Rent percentages, Casualty Values, Special
Casualty Values and Modified Special Casualty Values pursuant
to Sections 3(d) and 3(f) of the Facility Lease.
WHEREAS, the Indenture Trustee, in connection with
the adjustment to the schedules of principal amortization
attached to the Outstanding Fixed Rate Notes, has agreed to
waive the 60 day notice requirement under Section 2(b) of
each of Supplemental Indenture No. 2, dated as of November 1,
1991, and Supplemental Indenture No. 3, dated as of January
1, 1993, to the Indenture and accept a 45 day notice period
in lieu thereof; and
NOW, THEREFORE, in consideration of the premises
and of other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Definitions
-----------
For purposes hereof, capitalized terms used herein
and not otherwise defined herein shall have the meanings
assigned to such terms in Appendix A to the Facility Lease.
SECTION 2. Supplements and Amendments
--------------------------
(a) Section 3(d) Adjustments to Rent for Change in
----------------------------------------------
Tax Rate. Section 3(d) of the Facility Lease is amended by
- --------
inserting in the fourth line therein immediately after the
phrase "if there is any change" the phrase "(`Tax Rate
Change')".
(b) Section 3(e) Other Adjustments to Rent.
--------------------------------------
Section 3(e) of the Facility Lease is amended by inserting
after the parenthetical contained in the second sentence
thereof before the period the following phrase:
"provided, however, that nothing in this sentence shall
--------
be construed so as to impair the preservation of Net
Economic Return (or Adjusted Net Economic Return,
whichever is applicable) in connection with the
adjustments to Basic Rent and the schedules of Casualty
Values, Special Casualty Values and Modified Special
Casualty Values pursuant to Section 3(d) or this Section
3(e); provided further that in order to determine the
----------------
foregoing adjustments the Owner Participant will prepare
a pricing file which preserves Net Economic Return and
incorporates all of the Assumptions and the Tax Rate
Assumptions".
(c) Definitions. Appendix A to the Facility Lease
-----------
is amended as set forth in Amendment No. 7, dated as of
October 12, 1994, to the Participation Agreement, among the
Owner Participant, Funding Corporation, New Funding
Corporation, the Owner Trustee, the Indenture Trustee and the
Lessee, in respect of Appendix A thereto.
(d) Schedules. Schedules 1 through 4 of the
---------
Facility Lease are hereby amended as follows:
(i) Schedule 1 entitled "Basic Rent Percentages"
is deleted in its entirety and is hereby replaced with
Schedule 1 hereto.
(ii) Schedule 2 entitled "Schedule of Casualty
Values" is deleted in its entirety and is hereby
replaced with Schedule 2 hereto.
(iii) Schedule 3 entitled "Schedule of Special
Casualty Values" is deleted in its entirety and is
hereby replaced with Schedule 3 hereto.
(iv) Schedule 4 entitled "Schedule of Modified
Special Casualty Values" is deleted in its entirety and
is hereby replaced with Schedule 4 hereto.
SECTION 3. Miscellaneous
-------------
(a) Execution. This Amendment No. 5 may be
---------
executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which, when
so executed and delivered, shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
(b) Original Counterpart. The single executed
--------------------
original of this Amendment No. 5 marked "THIS COUNTERPART IS
THE ORIGINAL COUNTERPART" and containing the receipt of the
Indenture Trustee thereon shall be the "Original" of this
Amendment No. 5. No security interest in this Amendment No.
5 may be created or continued through the transfer or
possession of any counterpart other than the "Original."
(c) Effectiveness. Although this Amendment No. 5
-------------
is dated as of the date first above written for convenience
(and once it becomes effective shall have effect from such
date), the actual dates of execution hereof by the parties
hereto are, respectively, the dates set forth under the
signatures hereto, and this Amendment No. 5 shall become
effective as of the Tax Rate Adjustment Date (as defined in
Amendment No. 7 to the Participation Agreement) when all
conditions precedent to the Tax Rate Adjustment Date shall
have been satisfied and this Amendment No. 5 shall have been
duly executed and delivered by all of the parties hereto, is
executed and shall be construed as an amendment and supple-
ment to the Facility Lease, and as provided in the Facility
Lease, this Amendment No. 5 forms a part thereof. On and
from the Tax Rate Adjustment Date any reference in any
Transaction Document to the Facility Lease shall be deemed to
refer to the Facility Lease, as amended and modified by
Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment
No. 4 and this Amendment No. 5, and the Facility Lease, as so
amended, remains in full force and effect in accordance with
its terms.
(d) Non-Waiver or Amendment. The agreements
-----------------------
contained in this Amendment No. 5 shall not, except as
expressly provided in this Amendment No. 5, operate as a
waiver of any right, power or remedy of any party under any
Transaction Document nor constitute, except as expressly
provided in this Amendment No. 5, a waiver of any provision
of any Transaction Document.
(e) Governing Law. This Amendment No. 5 shall be
-------------
governed by and construed in accordance with the laws of the
State of New York, except to the extent that the laws of the
State of Ohio govern the creation of, and perfection of, the
leasehold estate hereunder and the exercise of rights and
remedies with respect to such leasehold estate and except to
the extent that the Federal laws of the United States are
mandatorily applicable.
<PAGE>
IN WITNESS WHEREOF, the Lessor and the Lessee have
caused this Amendment No. 5 to be duly executed as of the
date set forth above by their respective officers thereunto
duly organized.
THE FIRST NATIONAL BANK
OF BOSTON, not in its
individual capacity, but
solely as Owner Trustee
under a Trust Agreement,
dated as of March 16,
1987, with SECURITY
PACIFIC CAPITAL LEASING
CORPORATION, as Lessor
Attest:\s\ Donna Germano By \s\James E. Mogavero
------------------ -------------------------
Name: Donna Germano Name: James E. Mogavero
Title: Assistant Cashier Title: Authorized Officer
[Corporate Seal]
OHIO EDISON COMPANY,
as Lessee
Attest:\s\ T.F. Struck, II By \s\ R.H. Marsh
-------------------- ----------------------
Name: T.F. Struck, II Name: R.H. Marsh
Title: Assistant Treasurer Title: Treasurer
[Corporate Seal]
<PAGE>
COMMONWEALTH OF MASSACHUSETTS)
: ss.:
COUNTY OF NORFOLK )
ON THIS, the 12th day of October, 1994, before me a
Notary Public, personally appeared James E. Mogavero, who
acknowledged himself to be an Authorized Officer of THE FIRST
NATIONAL BANK OF BOSTON, and that he as such officer, being
authorized to do so, executed the foregoing instrument for
the purposes therein contained by signing the name of the
national banking association by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
\s\Shawn Patrick George
--------------------------
Notary Public
Shawn Patrick George
Notary Public
My Commission Expires:
September 2, 1999
<PAGE>
STATE OF OHIO )
: ss.:
COUNTY OF SUMMIT)
ON THIS, the 12th day of October, 1994, before me a
Notary Public in and for said County and State, personally
appeared T.F. Struck, II, who acknowledged himself to be a
Assistant Treasurer of OHIO EDISON COMPANY, and that he as
such officer, being authorized to do so, executed the
foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself as such
officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
\s\ Susie M. Hoisten
------------------------
Notary Public
Susie M. Hoisten
Notary Public
Residence - Summit County
State Wide Jurisdiction, Ohio
My Commission Expires:
November 4, 1996
<PAGE>
I.B.
----
CERTAIN OF THE RIGHT, TITLE AND INTEREST IN AND TO
THIS AMENDMENT NO. 5 TO FACILITY LEASE OF THE FIRST NATIONAL
BANK OF BOSTON, AS OWNER TRUSTEE UNDER THE TRUST AGREEMENT,
DATED AS OF MARCH 16, 1987, BETWEEN THE FIRST NATIONAL BANK
OF BOSTON AND SECURITY PACIFIC CAPITAL LEASING CORPORATION,
HAS BEEN ASSIGNED TO AND IS SUBJECT TO A SECURITY INTEREST IN
FAVOR OF THE BANK OF NEW YORK, AS INDENTURE TRUSTEE, UNDER
THE TRUST INDENTURE, MORTGAGE, SECURITY AGREEMENT AND
ASSIGNMENT OF FACILITY LEASE, DATED AS OF MARCH 16, 1987, AS
SUPPLEMENTED TO THE DATE HEREOF, FOR THE BENEFIT OF THE
HOLDERS OF THE NOTES REFERRED TO IN SUCH TRUST INDENTURE,
MORTGAGE, SECURITY AGREEMENT, AND ASSIGNMENT OF FACILITY
LEASE. THIS AMENDMENT NO. 5 TO FACILITY LEASE HAS BEEN
EXECUTED IN SEVERAL COUNTERPARTS. ONLY THAT COUNTERPART TO
BE DEEMED THE ORIGINAL COUNTERPART FOR CHATTEL PAPER PURPOSES
CONTAINS THIS RECEIPT THEREFOR EXECUTED BY THE BANK OF NEW
YORK, AS INDENTURE TRUSTEE, ON THE SIGNATURE PAGES THEREOF
AND NO SECURITY INTEREST IN THIS AMENDMENT NO. 5 TO FACILITY
LEASE MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF
ANY COUNTERPART OTHER THAN THIS EXECUTED ORIGINAL
COUNTERPART. SEE SECTION 22(e) OF THE FACILITY LEASE FOR
INFORMATION CONCERNING THE RIGHTS OF THE HOLDERS OF THE
VARIOUS COUNTERPARTS HEREOF.
Receipt of this original counterpart of the
foregoing Amendment No. 5 To Facility Lease is hereby
acknowledged on this ___ day of October, 1994.
THE BANK OF NEW YORK,
as Indenture Trustee
By__________________________
Name:
Title:
<PAGE>
SCHEDULE 1
TO
AMENDMENT NO. 5
TO FACILITY LEASE
BASIC RENT PERCENTAGES
Security Pacific Capital Leasing
$ %
------------ -----------
11/30/94 4,627,970.50 3.546799583
5/30/95 5,915,015.02 4.533169087
11/30/95 4,816,157.74 3.691023152
5/30/96 5,635,757.89 4.319151069
11/30/96 5,631,973.50 4.316250776
5/30/97 5,915,015.02 4.533169087
11/30/97 5,915,015.02 4.533169087
5/30/98 6,916,942.17 5.301029383
11/30/98 5,504,589.37 4.218625698
5/30/99 7,229,240.57 5.540369680
11/30/99 5,813,367.53 4.455268142
5/30/00 6,703,240.57 5.137252033
11/30/00 6,703,240.57 5.137252033
5/30/01 6,703,240.57 5.137252033
11/30/01 6,703,240.57 5.137252033
5/30/02 6,703,240.57 5.137252033
11/30/02 6,412,363.28 4.914328518
5/30/03 6,703,240.57 5.137252033
11/30/03 6,703,240.57 5.137252033
5/30/04 6,703,240.57 5.137252033
11/30/04 6,703,240.57 5.137252033
5/30/05 6,703,240.57 5.137252033
11/30/05 6,703,240.57 5.137252033
5/30/06 7,229,240.57 5.540369680
11/30/06 6,847,564.63 5.247859591
5/30/07 7,229,240.57 5.540369680
11/30/07 7,229,240.57 5.540369680
5/30/08 7,229,240.57 5.540369680
11/30/08 7,229,240.57 5.540369680
<PAGE>
SCHEDULE 1
TO
AMENDMENT NO. 5
TO FACILITY LEASE
$ %
------------ -----------
5/30/09 7,229,240.57 5.540369680
11/30/09 7,229,240.57 5.540369680
5/30/10 7,229,240.57 5.540369680
11/30/10 7,229,240.57 5.540369680
5/30/11 7,229,240.57 5.540369680
11/30/11 7,229,240.57 5.540369680
5/30/12 7,229,240.57 5.540369680
11/30/12 7,229,240.57 5.540369680
5/30/13 7,229,240.57 5.540369680
11/30/13 7,229,240.57 5.540369680
5/30/14 7,229,240.57 5.540369680
11/30/14 7,229,240.57 5.540369680
5/30/15 7,229,240.57 5.540369680
11/30/15 7,229,240.57 5.540369680
5/30/16 6,617,443.05 5.071498241
<PAGE>
SCHEDULE 2
TO
AMENDMENT NO. 5
TO FACILITY LEASE
CASUALTY VALUES
Security Pacific Capital Leasing
% of Facility Cost
-------------------
11/30/94 126.0058660
5/30/95 125.8090207
11/30/95 126.1736994
5/30/86 125.7116811
11/30/96 125.0311767
5/30/97 124.0293219
11/30/97 122.9881237
5/30/98 121.1494134
11/30/98 120.3382365
5/30/99 118.2170912
11/30/99 117.1038268
5/30/00 115.3267939
11/30/00 113.5268780
5/30/01 111.6329580
11/30/01 109.6844902
5/30/02 107.6800328
11/30/02 105.8383906
5/30/03 103.7626834
11/30/03 101.6271853
5/30/04 99.4328790
11/30/04 97.1876596
5/30/05 94.8929230
11/30/05 92.5632116
5/30/06 89.7931635
11/30/06 87.2783256
5/30/07 84.3824296
11/30/07 81.3683218
5/30/08 78.2792288
<PAGE>
SCHEDULE 2
TO
AMENDMENT NO. 5
TO FACILITY LEASE
% of Facility Cost
-------------------
11/30/08 75.1132807
5/30/09 71.8692519
11/30/09 68.5488824
5/30/10 65.1506079
11/30/10 61.6727595
5/30/11 58.1083793
11/30/11 54.4598789
5/30/12 50.7253966
11/30/12 46.9028324
5/30/13 42.9901403
11/30/13 38.9748570
5/30/14 34.9304056
11/30/14 31.0174056
5/30/15 27.2761972
11/30/15 23.6010677
5/30/16 19.9992461
<PAGE>
SCHEDULE 3
TO
AMENDMENT NO. 5
TO FACILITY LEASE
SPECIAL CASUALTY VALUES
Security Pacific Capital Leasing
% of Facility Cost
-------------------
11/30/94 124.5879352
5/30/95 124.3251912
11/30/95 124.6209086
5/30/96 124.0867241
11/30/96 123.3306995
5/30/97 122.2498145
11/30/97 121.1259133
5/30/98 119.2006564
11/30/98 118.2989106
5/30/99 116.0829871
11/30/99 114.8705397
5/30/00 112.9897143
11/30/00 111.0811820
5/30/01 109.0735978
11/30/01 107.0061831
5/30/02 104.8772508
11/30/02 102.9053487
5/30/03 100.6933277
11/30/03 98.4151806
5/30/04 96.0715956
11/30/04 93.6701597
5/30/05 91.2119466
11/30/05 88.7111609
5/30/06 85.7620879
11/30/06 83.0599049
5/30/07 79.9679568
11/30/07 76.7486854
5/30/08 73.4448937
11/30/08 70.0542687
5/30/09 66.5751212
11/30/09 63.0087057
5/30/10 59.3529502
11/30/10 55.6056544
5/30/11 51.7593041
11/30/11 47.8157290
SCHEDULE 3
TO
AMENDMENT NO. 5
TO FACILITY LEASE
% of Facility Cost
-------------------
5/30/12 43.7724583
11/30/12 39.6267547
5/30/13 35.3759052
11/30/13 31.0067486
5/30/14 26.5919775
11/30/14 22.2914472
5/30/15 18.1446978
11/30/15 14.0451798
5/30/16 9.9992461
<PAGE>
SCHEDULE 4
TO
AMENDMENT NO. 5
TO FACILITY LEASE
MODIFIED SPECIAL CASUALTY VALUES
Security Pacific Capital Leasing
% of Facility Cost $
------------------ --------------
11/30/94 44.839493957 58,507,916.90
5/30/95 45.566864128 59,457,011.32
11/30/95 45.032971560 58,760,372.28
5/30/96 45.141039844 58,901,383.02
11/30/96 44.967361879 58,674,762.80
5/30/97 44.941815133 58,641,428.64
11/30/97 44.917481871 58,609,677.87
5/30/98 44.906773434 58,595,705.18
11/30/98 44.528589341 58,102,239.23
5/30/99 44.559945732 58,143,153.99
11/30/99 43.637163155 56,939,079.60
5/30/00 43.630152886 56,929,932.39
11/30/00 43.196490830 56,364,077.13
5/30/01 41.995682173 54,797,225.97
11/30/01 41.174001893 53,725,072.89
5/30/02 40.320431596 52,611,308.76
11/30/02 39.429539588 51,448,846.14
5/30/03 39.185756781 51,130,751.02
11/30/03 38.278254577 49,946,614.92
5/30/04 37.337037760 48,718,486.98
11/30/04 36.515828959 47,646,949.10
5/30/05 35.678535717 46,554,423.76
11/30/05 34.836629699 45,455,879.53
5/30/06 33.847228934 44,164,879.73
11/30/06 32.876173402 42,897,817.34
5/30/07 31.319844976 40,867,073.32
11/30/07 29.118875961 37,995,182.92
5/30/08 27.533822590 35,926,957.73
<PAGE>
SCHEDULE 4
TO
AMENDMENT NO. 5
TO FACILITY LEASE
% of Facility Cost $
------------------ --------------
11/30/08 25.905641417 33,802,458.09
5/30/09 24.233780860 31,620,964.28
11/30/09 22.521414292 29,386,617.01
5/30/10 20.766763111 27,097,095.51
11/30/10 18.968698214 24,750,926.49
5/30/11 17.530960976 22,874,923.81
11/30/11 15.720120115 20,512,084.33
5/30/12 13.876797644 18,106,861.87
11/30/12 12.006431497 15,666,352.01
5/30/13 10.108847996 13,190,328.13
11/30/13 8.955436264 11,685,321.90
5/30/14 9.069233073 11,833,807.39
11/30/14 9.502803177 12,399,542.67
5/30/15 10.304500632 13,445,621.56
11/30/15 10.029661580 13,087,003.32
5/30/16 5.070744327 6,616,459.32
<PAGE>
=============================================================
AMENDMENT NO. 2
dated as of January 12, 1993
to
TAX INDEMNIFICATION AGREEMENT
dated as of March 16, 1987
between
SECURITY PACIFIC CAPITAL LEASING CORPORATION
and
OHIO EDISON COMPANY
=============================================================
Sale and leaseback of an Undivided Interest in
Perry Nuclear Power Plant Unit l
=============================================================
<PAGE>
AMENDMENT NO. 2, dated as of January 12, 1993, to
TAX INDEMNIFICATION AGREEMENT, dated as of March 16, 1987, as
amended by Amendment No. 1 thereto, dated as of November 1,
1991, between SECURITY PACIFIC CAPITAL LEASING CORPORATION, a
Delaware corporation (the "Owner Participant"), and OHIO
EDISON COMPANY, an Ohio corporation (the "Lessee").
Capitalized terms not otherwise defined herein shall have the
meaning set forth in an Appendix A to the Participation
Agreement, dated as of March 16, 1987, among the Owner
Participant, the Original Loan Participants listed on
Schedule 1 thereto, PNPP Funding Corporation, The First
National Bank of Boston, Irving Trust Company and Ohio Edison
Company, as amended from time to time (the "Participation
Agreement"), Appendix A to the Refinancing Agreement, dated
as of November 1, 1991, among the Owner Participant, PNPP
Funding Corporation, PNPP II Funding Corporation, The First
National Bank of Boston, the Bank of New York, and Ohio
Edison Company (the "Refinancing Agreement") or Appendix A to
the Refinancing Agreement dated as of January 1, 1993, among
the Owner Participant, PNPP Funding Corporation, PNPP II
Funding Corporation, The First National Bank of Boston, the
Bank of New York, and Ohio Edison Company (the "1993
Refinancing Agreement").
WHEREAS, the Owner Participant and the Lessee have
executed the Participation Agreement pursuant to which the
Owner Participant has caused the Owner Trustee to purchase
the Undivided Interest from the Lessee;
WHEREAS, the Owner Trustee has executed the
Facility Lease pursuant to which the Owner Trustee has leased
the Undivided Interest to the Lessee;
WHEREAS, the Lessee and the Owner Participant
desire to refinance the Fixed Rate Notes and the Collateral
Lease Bonds and have entered into the 1993 Refinancing
Agreement; and
WHEREAS, the Owner Participant and the Lessee have
heretofore executed the Tax Indemnification Agreement, dated
as of March 16, 1987, as amended by Amendment No. 1 thereto,
dated as of November 1, 1991 (the "Tax Indemnification
Agreement"), and desire to amend the Tax Indemnification
Agreement as hereinafter provided to clarify their respective
rights and obligations arising from the transactions
contemplated by the 1993 Refinancing Agreement;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
The Tax Indemnification Agreement is hereby
amended, effective upon the execution and delivery of this
Agreement, as follows:
1. The preamble thereof is amended by replacing
the second sentence thereof in its entirety by the following
two sentences:
"Capitalized terms not otherwise defined herein shall
have the meaning set forth in an Appendix A to the
Participation Agreement, dated as of March 16, 1987,
among the Owner Participant, the Original Loan
Participants listed on Schedule 1 thereto, PNPP Funding
Corporation, The First National Bank of Boston, Irving
Trust Company and Ohio Edison Company, as amended from
time to time (the "Participation Agreement"), Appendix
A to the Refinancing Agreement, dated as of November l,
1991, among the Owner Participant, PNPP Funding
Corporation, PNPP II Funding Corporation, The First
National Bank of Boston, the Bank of New York, and Ohio
Edison Company (the "Refinancing Agreement") or
Appendix A to the Refinancing Agreement dated as of
January 1, 1993, among the Owner Participant, PNPP
Funding Corporation, PNPP II Funding Corporation, The
First National Bank of Boston, the Bank of New York,
and Ohio Edison Company (the "1993 Refinancing
Agreement"). The term "Refinancing Documents" shall
mean those documents, instruments, and agreements
delivered in connection with any refinancing of the
Notes, including, without limitation, the Refinancing
Agreement and the 1993 Refinancing Agreement."
2. Section 1(a)(11) thereof is amended by restating
such section in its entirety to read as follows:
"(11) Except as provided in Section 5 of the
Refinancing Agreement and Section 5 of the 1993
Refinancing Agreement, Basic Rent will be paid on May
30, 1987 and the Basic Rent Payment Dates."
3. Section (1)(a)(12) thereof is amended by restating
such section in its entirety to read as follows:
"(12) Except as provided in Section 5 of the
Refinancing Agreement and Section 5 of the 1993
Refinancing Agreement, Basic Rent will be payable in
arrears in semi-annual installments during the Basic
Lease Term and the Renewal Term as set forth in the
Facility Lease."
4. Section 1(a)(19) thereof is amended by
restating such section in its entirety to read as follows:
"(19) The Owner Participant will be allowed a
deduction for (i) the premium paid with respect to the
Purchased Notes and the Purchased Bonds and (ii) the
excess of the Redemption Price of the Fixed Rate Notes
defeased in 1993 (exclusive of the portion of such
Redemption Price representing interest accrued and
unpaid on the Fixed Rate Notes from November 30, 1992
up to, but not including, the Refunding Date) over the
principal amount thereof in each case in the taxable
year of the Owner Participant in which such premium is
paid (the "Retirement Premium Deduction"); and the
Owner Participant will be entitled to take the
Retirement Premium Deduction into account in computing
the consolidated income tax liability under Federal
Income Tax Law (and the combined income tax liability
under the State Tax Law) of the Group."
5. Section 1(a)(20) thereof is amended by restating
such section in its entirety to read as follows:
"(20) The Owner Participant will be allowed
current deductions for amortization of an amount equal
to the Refinancing Transaction Expenses to the extent
payable by the Owner Trustee pursuant to Section 15 of
the Refinancing Agreement or Section 16(a) of the 1993
Refinancing Agreement, as the case may be, computed on
a straight-line basis from the Purchase Date or the
Refunding Date, as the case may be, to the end of the
Basic Lease Term (the "Refinancing Amortization
Deductions"); and the Owner Participant will be
entitled to take the Refinancing Amortization
Deductions into account in computing the consolidated
income tax liability under Federal Income Tax Law (and
the combined income tax liability under the State Tax
Law) of the Group."
This Amendment No. 2 may be executed in any number of
counterparts and by different parties hereto on separate
counterparts, each of which, when so executed and delivered,
shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the Owner Participant and the
Lessee have caused this Amendment No. 2 to Tax Indemnification
Agreement to be duly executed by their respective officers
thereunto duly authorized as of the date set forth below.
OHIO EDISON COMPANY
By \s\T.F. Struck II, Asst. Treasurer
----------------------------------
Dated: January 12, 1993
SECURITY PACIFIC CAPITAL
LEASING CORPORATION
By: \s\ Gail D. Smedal
----------------------------------
Dated: January 12, 1993
<PAGE>
===========================================================
AMENDMENT NO. 3
dated as of October 12, 1994
to
TAX INDEMNIFICATION AGREEMENT
dated as of March 16, 1987
between
SECURITY PACIFIC CAPITAL LEASING CORPORATION
as Owner Participant,
and
OHIO EDISON COMPANY,
as Lessee
===========================================================
Sales and Leaseback of an Undivided Interest in
Perry Nuclear Power Plant Unit 1
===========================================================
<PAGE>
AMENDMENT NO. 3, dated as of October 12, 1994
("Amendment No. 3"), to the TAX INDEMNIFICATION AGREEMENT,
dated as of March 16, 1987, between SECURITY PACIFIC
CAPITAL LEASING CORPORATION, a Delaware corporation (the
"Owner Participant") and OHIO EDISON COMPANY, an Ohio
corporation (the "Lessee") as amended by Amendment No. 1
thereto dated as of November 1, 1991 and as amended by
Amendment No. 2 thereto dated January 12, 1993 (the "Tax
Indemnification Agreement"). Capitalized terms not
otherwise defined herein shall have the meaning set forth
in Appendix A to the Participation Agreement, dated as of
March 16, 1987, among the Owner Participant, the Original
Loan Participants listed on Schedule 1 thereto, PNPP
Funding Corporation, The First National Bank of Boston,
Irving Trust Company and Ohio Edison Company, as amended
from time to time (the "Participation Agreement"), Appendix
A to the Refinancing Agreement, dated as of November 1,
1991, among Owner Participant, PNPP Funding Corporation,
PNPP II Funding Corporation, The First National Bank of
Boston, the Bank of New York and Ohio Edison Company (the
"Refinancing Agreement") or Appendix A to the Refinancing
Agreement dated as of January 1, 1993, among the Owner
Participant, PNPP Funding Corporation, PNPP II Funding
Corporation, The First National Bank of Boston, the Bank of
New York, and Ohio Edison Company (the "1993 Refinancing
Agreement).
W I T N E S S E T H:
-------------------
WHEREAS, the Owner Participant and the Lessee
have executed the Participation Agreement pursuant to which
the Owner Participant has caused the Owner Trustee to
purchase the Undivided Interest from the Lessee;
WHEREAS, the Owner Trustee has executed the
Facility Lease pursuant to which the Owner Trustee has
leased the Undivided Interest to the Lessee;
WHEREAS, Section 3(d) of the Facility Lease
provides for an adjustment to Basic Rent and the Schedules
of Casualty Values, Specialty Casualty Values and Modified
Special Casualty Values in the event of a Tax Rate Change
which results in the marginal federal income tax rate
applicable to corporations ("Tax Rate") differing from the
rate assumed in the Pricing Assumptions as in effect on the
Closing Date;
WHEREAS, section 11(b)(1) of the Code, as amended
by the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-
66), increases the Tax Rate assumed to be applicable to the
Owner Participant in the Pricing Assumptions from 34% to
35%; and
WHEREAS, the Lessor and Lessee have entered into
Lease Amendment No. 5 amending Schedules 1 through 4 of the
Facility Lease to reflect the increase in the Tax Rate.
WHEREAS, the Owner Participant and the Lessee
have heretofore executed the Tax Indemnification Agreement
providing for indemnification by the Lessee against the
loss of certain tax benefits;
WHEREAS, Section 7 of the Tax Indemnification
Agreement requires an adjustment to the Tax Assumptions to
reflect adjustments to Basic Rent pursuant to Section 3(d)
of the Facility Lease;
NOW, THEREFORE, in consideration of the premises
and of other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as
follows:
1. The Tax Indemnification Agreement is hereby
amended as follows:
(i) by replacing the words "Transaction
Documents or the Financing Documents or the
Refinancing Documents" or the words "Transaction
Documents or Financing Documents or the
Refinancing Documents" with the words
"Transaction Documents, the Financing Documents,
the Refinancing Documents or the Tax Rate
Adjustment Transaction Documents" throughout such
Tax Indemnification Agreement, except in Section
1(a)(13) thereof;
(ii) by replacing the words "Transaction
Documents and the Refinancing Documents" with the
words "Transaction Documents, the Refinancing
Documents and the Tax Rate Adjustment Transaction
Documents" throughout such Tax Indemnification
Agreement;
(iii) by replacing the words "Transaction
Documents and the Financing Documents and the
Refinancing Documents" with the words
"Transaction Documents, the Financing Documents,
the Refinancing Documents and the Tax Rate
Adjustment Transaction Documents" throughout such
Tax Indemnification Agreement;
(iv) by replacing the words "any
Transaction Document or any Financing Document or
any Refinancing Document" with the words "any
Transaction Document or any Financing Document or
any Refinancing Document or any Tax Rate
Adjustment Transaction Document" throughout such
Tax Indemnification Agreement;
(v) by replacing the words "any of the
Transaction Documents or any of the Refinancing
Documents" with the words "any of the Transaction
Documents or any of the Refinancing Documents or
any of the Tax Rate Adjustment Transaction
Documents" throughout such Tax Indemnification
Agreement; and
(vi) by replacing the words "Transaction
Documents, the Financing Documents, the
Refinancing Documents" with the words
"Transaction Documents, the Financing Documents,
the Refinancing Documents, the Tax Rate
Adjustment Transaction Documents" throughout such
Tax Indemnification Agreement.
2. Section 1(a)(8) of the Tax Indemnification
Agreement is hereby amended in its entirety to read, as
follows:
The Owner Participant will be allowed current
deductions for amortization of the following amounts
(the "Amortization Deductions"): (i) an amount equal
to Transaction Expenses to the extent payable by the
Owner Participant pursuant to Section 14 of the
Participation Agreement computed on a straight-line
basis over the Basic Lease Term and (ii) an amount
equal to the Tax Rate Change Transaction Expenses
payable on behalf of the Owner Trustee pursuant to
Section 5(a) of Amendment No. 7 to the Participation
Agreement dated the date hereof, computed on a
straight-line basis over the period commencing on the
Tax Rate Adjustment Date and ending on the last day of
the Basic Lease Term; and the Owner Participant will
be entitled to take the Amortization Deductions into
account in computing the consolidated income tax
liability under Federal Income Tax Law (and the
combined income tax liability under the State Tax Law)
of the Group.
3. Section 1(a)(13) of the Tax Indemnification
Agreement is hereby amended by (i) replacing the words "the
Transaction Documents or the Financing Documents or the
Refinancing Documents" with the words "the documents dated
the Tax Rate Adjustment Date delivered in connection with
the tax rate adjustment (the "Tax Rate Adjustment
Transaction Documents"), the Transaction Documents, the
Financing Documents or the Refinancing Documents", (ii)
deleting the word "and" immediately before clause (g) and
replacing it with "," and (iii) adding the following after
clause (g), and before the period:
"and (h) Supplemental Rent in the amount of the
Tax Rate Change Transaction Expenses payable under
Section 5(a) of Amendment No. 7 to the Participation
Agreement dated the date hereof".
4. Effective on and as of January 1, 1993,
Section 1(a)(14) of the Tax Indemnification Agreement is
hereby amended in its entirety to read, as follows:
"Without giving effect to any credits
against tax, the Owner Participant's marginal
rate under Federal Income Tax Law is
(i) 39.950685% for its taxable year ending
December 31, 1987, (ii) 34% for each taxable year
thereafter through December 31, 1992, and
(iii) 35% for its taxable year ended December 31,
1993 and each taxable year thereafter; without
giving effect to any credits against tax, the
Owner Participant's combined effective rate under
the State Tax Law is 8.185%; and such marginal
and effective rates will be applicable to each
item of income and deduction contemplated by this
section 1(a)."
5. Sections 1(b)(9) and 2(b)(1) of the Tax
Indemnification Agreement are amended by replacing
"Sections 1(a)(13)(a)-(g)" with "Sections 1(a)(13)(a)-(h)"
in each place it appears.
6. Section 2(b)(1) of the Tax Indemnification
Agreement is amended by adding immediately after the words
"of the Lessee", as they appear in subsection (xiv) of said
Section 2(b)(1), the following:
", or (xv) any adjustment to Basic Rent or any
schedule pursuant to Section 3(d) of the Facility
Lease"
7. Except as amended hereby, the Tax
Indemnification Agreement shall survive and continue in
full force and effect.
8. This Amendment No. 3 may be executed in any
number of counterparts (and each of the parties hereto
shall not be required to execute the same counterpart).
Each counterpart of this Amendment No. 3, including a
signature page executed by each of the parties hereto shall
be an original of this Amendment No. 3, but all of such
counterparts together shall constitute one instrument.
9. This Amendment No. 3 shall in all respects be
governed by and construed in accordance with the laws of
the State of New York.
<PAGE>
IN WITNESS WHEREOF, the Owner Participant and the
Lessee have caused this Amendment No. 3 to the Tax
Indemnification Agreement to be duly executed as of the
date set forth above by their respective officers thereunto
duly authorized.
OHIO EDISON COMPANY
By: \s\ R.H. Marsh
-------------------
Name: R.H. Marsh
Title: Treasurer
SECURITY PACIFIC CAPITAL
LEASING CORPORATION
By: \s\ Raleigh W. Klein
-----------------------
Name: Raleigh W. Klein
Title: Vice-President
<PAGE>
CONFORMED COPY
RECEIVABLES
FINANCING AGREEMENT
Dated as of November 28, 1989
As Amended and Restated as of April 23, 1993
OES CAPITAL, INCORPORATED, an Ohio corporation (the
"Company"), CORPORATE ASSET FUNDING COMPANY, INC., a Delaware
corporation ("CAFCO"), and CITICORP NORTH AMERICA, INC., a
Delaware corporation ("CNAI"), as agent (the "Agent") for the
Lenders (as defined in Exhibit I), agree as follows:
PRELIMINARY STATEMENTS. Certain terms that are
capitalized and used throughout this Agreement are defined in
Exhibit I to this Agreement. References in the Exhibits to
"the Agreement" refer to this Agreement.
The Company has and will acquire Receivables in
which it is prepared to transfer a security interest in
exchange for financing provided by CAFCO. CAFCO is prepared
to provide such financing on the terms set forth herein.
The Company, CAFCO and the Agent are parties to
that certain Receivables Financing Agreement, dated as of
November 28, 1989, as amended as of March 31, 1991, and as
amended and restated as of June 1, 1992 (the "Original
Agreement").
The parties now desire to amend and restate the
Original Agreement in accordance with the terms and
conditions set forth below.
NOW, THEREFORE, the parties agree to amend and
restate the Original Agreement in its entirety to read as
follows:
ARTICLE I.
AMOUNTS AND TERMS OF THE FINANCING
----------------------------------
SECTION 1.01. Financing Facility. (a) On the
------------------
terms and conditions hereinafter set forth, CAFCO may, in its
sole discretion, make advances ("Advances") from time to time
during the period from the date hereof to the Payment Date.
Under no circumstances shall CAFCO make Advances if after
giving effect thereto the aggregate outstanding Principal of
Advances, together with the aggregate outstanding "Principal"
of "Advances" under the Parallel Purchase Commitment, would
exceed the Finance Limit.
(b) The Company may at any time after April 23,
1994, upon at least five Business Days' notice to the Agent,
terminate in whole or reduce in part the unused portion of
the Finance Limit; provided that each partial reduction shall
--------
be in the amount of at least $1,000,000 or an integral
multiple thereof.
SECTION 1.02. Making Advances. Each Advance shall
---------------
be made on notice from the Company to the Agent, given not
later than 11:00 A.M. (New York City time) on the third
Business Day before the date of such Advance if the Company
requests as the CAFCO Rate the CP Rate in connection with
such Advance and not later than 11:00 A.M. (New York City
time) on the fifth Business Day before the date of such
Advance if the Company requests as the CAFCO Rate either the
MTN Fixed Rate or the MTN Floating Rate in connection with
such Advance. Each such notice of a proposed Advance (i) if
the Company requests as the CAFCO Rate the CP Rate in
connection with such Advance, shall be by telephone,
telecopier, telex or cable, specifying the requested (A)
amount of such Advance being requested (such amount, which
shall not be less than $1,000,000, being referred to herein
as the initial "Principal" of such Advance) and (B) Business
Day of such Advance and duration of the initial Fixed Period
for such Advance and (ii) if the Company requests as the
CAFCO Rate either the MTN Fixed Rate or the MTN Floating Rate
in connection with such Advance, shall be by telephone
(confirmed immediately in writing) or by telecopier,
telegraph, telex or cable, confirmed immediately in writing,
in substantially the form of a Notice of Advance and/or CAFCO
Rate referred to in Section 1.03, specifying therein the
requested (A) amount of the initial Principal of such Advance
(which shall not be less than $5,000,000), (B) Business Day
of such Advance and duration of the initial Fixed Period for
such Advance and (C) the other information to establish such
CAFCO Rate as required by Section 1.03. CAFCO shall promptly
notify the Agent whether it has determined to make such
Advance. The Agent shall promptly thereafter (but in any
event on the same day) notify the Company whether CAFCO has
determined to make such Advance and whether the conditions
for the requested CAFCO Rate set forth in Section 1.03 have
been satisfied. On the date of each Advance, CAFCO shall,
upon satisfaction of the applicable conditions set forth in
Exhibit II, make available to the Agent the amount of the
initial Principal of its Advance by deposit of such amount in
same day funds to the Agent's Account, and, after receipt by
the Agent of such funds, the Agent will cause such funds to
be made immediately available to the Company at Citibank's
office at 399 Park Avenue, New York, New York. CAFCO shall
on the date of each Advance notify the Agent of the CAFCO
Rate for such Fixed Period.
SECTION 1.03. Determination of CAFCO Rate and Fixed
-------------------------------------
Periods Therefor. (a) The Company shall request the CAFCO
- ----------------
Rate for each Fixed Period for each Advance by notice from
the Company to the Agent (i) in the case of the initial Fixed
Period for such Advance, in the notice of the proposed
Advance given by the Company pursuant to Section 1.02 and
(ii) in the case of each subsequent Fixed Period for such
Advance, given not later than 11:00 A.M. (New York City time)
on the first day of such Fixed Period if the Company requests
as such CAFCO Rate the CP Rate and not later than 11:00 A.M.
(New York City time) on the fifth Business Day before the
first day of such Fixed Period if the Company requests as
such CAFCO Rate either the MTN Fixed Rate or the MTN Floating
Rate. Each such notice (i) if the Company requests as the
CAFCO Rate the CP Rate, shall be by telephone, telecopier,
telex or cable, specifying in accordance with the other
provisions of this Section 1.03 the requested Fixed Period
and CAFCO Rate therefor and (ii) if the Company requests as
the CAFCO Rate either the MTN Fixed Rate or the MTN Floating
Rate, shall be by telephone (confirmed immediately in
writing) or by telecopier, telegraph, telex or cable,
confirmed immediately in writing, in substantially the form
of Exhibit VI hereto (a "Notice of Advance and/or CAFCO
------------------------------
Rate"), specifying therein, in accordance with the other
- ----
provisions of this Section 1.03, the requested Fixed Period
and CAFCO Rate therefor (including, in the case of a
requested MTN Floating Rate, the requested "Spread" or
"Spread Multiplier", "Interest Rate Base", "Index Maturity",
and "Interest Reset Dates", specified in such Notice of
Advance and/or CAFCO Rate).
(b) If the Company shall request as the CAFCO Rate
for any Fixed Period the CP Rate for such Fixed Period in
accordance with subsection (a) above and if the Agent shall
approve such request, (i) such CAFCO Rate shall be the CP
Rate for such Fixed Period and (ii) such Fixed Period shall
be such number of days, not exceeding 270 days, as the
Company shall request, and the Agent shall so approve;
provided that if the Agent shall not have received a notice
- --------
requesting such CAFCO Rate, or the Agent shall not have
approved such Fixed Period, before 11:00 A.M. (New York City
time) on the first day of such Fixed Period and no other
Fixed Period or CAFCO Rate shall be otherwise applicable
pursuant to the provisions of this Agreement, such Fixed
Period shall be one day and the CAFCO Rate for such Fixed
Period shall be the CP Rate.
(c) If the Company shall request as the CAFCO Rate
for any Fixed Period the MTN Fixed Rate or the MTN Floating
Rate for such Fixed Period in accordance with subsection (a)
above and if the Agent shall approve such request and if (in
the event that clause (ii) of the definition of "Breakage
Increment" contained in Exhibit I applies) the Company and
the Agent shall have agreed in writing to the computation of
the Breakage Increment for such Fixed Period, (i) such CAFCO
Rate shall be the MTN Fixed Rate or the MTN Floating Rate
(with, in the case of the MTN Floating Rate, the "Spread" or
"Spread Multiplier", "Interest Rate Base", "Index Maturity",
and "Interest Reset Dates", specified in such Notice of
Advance and/or CAFCO Rate), as so requested, for such Fixed
Period and (ii) such Fixed Period shall be such duration,
exceeding 270 days but not exceeding three years, as the
Company shall request, and the Agent shall approve, in the
Notice of Advance and/or CAFCO Rate related thereto; provided
--------
that if either (A) the Agent shall not have received such
Notice of Advance and/or CAFCO Rate, or the Agent shall not
have approved such CAFCO Rate or such Fixed Period, before
11:00 A.M. (New York City time) on the fifth Business Day
before the first day of such Fixed Period or (B) on or before
the first day of such Fixed Period any Person who has agreed
to purchase the Medium Term Notes with reference to which
such MTN Fixed Rate or MTN Floating Rate is to be determined
hereunder refuses to purchase and pay for such Medium Term
Notes, then such Fixed Period shall be one day and the CAFCO
Rate for such Fixed Period shall be the CP Rate.
(d) Anything herein to the contrary
notwithstanding, if the provisions of the definition of
"CAFCO Rate" contained in Exhibit I shall specify that the
CAFCO Rate for any Fixed Period shall be the Assignee Rate
(or such other rate as the Agent and the Company may agree to
in writing), the CAFCO Rate for such Fixed Period shall be
the Assignee Rate (or such other rate) for such Fixed Period.
SECTION 1.04. Repayment and Collateral. (a) All
------------------------
Advances shall be due and payable on the Payment Date unless
paid sooner pursuant to Section 1.04(c) or 1.05 and shall
bear Interest on the unpaid Principal thereof, payable with
respect to each Advance on the last day of each Settlement
Period relating thereto.
(b) In order to secure the payment and performance
of all of the Company's obligations hereunder, and the
payment or repayment of Principal, Interest, the Collection
Agent Fee, the Breakage Fee and all other fees, costs and
expenses under this Agreement the Company hereby grants to
the Agent a continuing security interest in (i) all Pool
Receivables now in existence or hereafter created or arising,
(ii) all proceeds thereof, including Collections, and all
rights, if any, to any relevant insurance payments due on
account thereof, and (iii) all Related Security.
(c) The Company may, upon at least two Business
Days' notice to the Agent, stating the proposed date (which
shall be the last day of a Fixed Period for the Advance(s)
being prepaid) and aggregate amount of the prepayment, and if
such notice is given the Company shall, prepay in whole or in
part the outstanding Principal of any Advance(s), together
with accrued Interest to the date of such prepayment on the
amount of Principal prepaid; provided that (x) each partial
--------
prepayment shall be in an aggregate amount for each such
Advance not less than $1,000,000 and (y) the Company shall
have no right to prepay any Principal except as above
provided.
SECTION 1.05. Collateral Procedures. (a) Collection
---------------------
of the Pool Receivables shall be administered by the
Collection Agents, in accordance with the terms of this
Agreement and the Collection Agent Agreement. The Company
shall provide, or cause to be provided, to the Collection
Agents on a timely basis all information needed for such
administration.
(b) Each Collection Agent shall, on each day on
which Collections of Pool Receivables are received by it:
(i) separately account for and hold as
collateral for the Lenders, out of such Collections, an
amount equal to the Interest and Collection Agent Fee
accrued up to such day and not previously set aside;
(ii) if such day is neither an Amortization
Day nor a Provisional Amortization Day, release the
remainder of such Collections to the Company; and
(iii) if such day is an Amortization Day or a
Provisional Amortization Day, set aside and hold as
collateral the remainder of such Collections; provided
--------
that amounts set aside and held as collateral on any
Provisional Amortization Day that is subsequently
determined not to be an Amortization Day thereupon shall
be released in accordance with the preceding paragraph
(ii).
(c) The Collection Agents shall deposit into the
Agent's Account on the last day of each Settlement Period
Collections held as collateral for the Lenders, to be
distributed in accordance with subsection (d) below.
(d) Upon receipt of funds deposited into the
Agent's Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that
is not an Amortization Day or a Provisional Amortization
Day, first to the Lenders in payment in full of all
accrued Interest and then to the Collection Agents in
payment in full of all accrued Collection Agent Fees.
(ii) if such distribution occurs on an
Amortization Day or a Provisional Amortization Day,
first to the Lenders in payment in full of all accrued
Interest (including, without limitation, the Breakage
Fee for such Advance then payable pursuant to Section
1.11), second to the Lenders in payment in full of all
Principal, third to the Lenders or to the Agent in
payment of any other amounts owed by the Company
hereunder, and fourth to the Collection Agents in
payment in full of all accrued Collection Agent Fees.
(e) If, on the last day of any Settlement Period,
there are not sufficient funds in the Agent's Account to pay
the full amount of Principal, Interest, Breakage Fees and
other amounts due on such day, the Company shall pay such
insufficiency out of its general funds.
(f) Except as otherwise specified in this
Agreement, after the Principal, Interest, Breakage Fees and
Collection Agent Fees with respect to all Advances, and any
other amounts payable by the Company to the Lenders or the
Agent hereunder, have been paid in full, all additional
Collections shall be released to the Company.
(g) For the purposes of this Agreement, if and to
the extent the Agent or the Lenders shall be required for any
reason to pay over to an Obligor any amount received on its
behalf hereunder, such amount shall be deemed not to have
been so received but rather to have been released to the
Company.
SECTION 1.06. Fees. The Company shall pay fees to
----
the Agent for its own account or for the account of CAFCO
pursuant to a separate letter agreement dated as of April 23,
1993.
SECTION 1.07. Payments and Computations, Etc. (a)
-------------------------------
All amounts to be paid or deposited by the Company or a
Collection Agent hereunder or under a Collection Agent
Agreement shall be paid or deposited no later than 11:00 A.M.
(New York City time) on the day when due to the Agent's
Account. Amounts paid or deposited hereunder from collected
funds shall be paid or deposited in same day funds.
(b) The Company shall, to the extent permitted by
law, pay interest on any amount not paid or deposited by the
Company when due hereunder, at an interest rate per annum
equal to 2% per annum above the Alternate Base Rate, payable
on demand.
(c) Except as otherwise specified in this
Agreement, all computations of interest, fees, and other
amounts hereunder shall be made on the basis of a year of 360
days (except that (i) computations of Interest at the
Alternate Base Rate shall be made on the basis of a year of
365 or 366 days, as the case may be, (ii) computations of
Interest at the MTN Fixed Rate shall be made on the basis of
a 360-day year consisting of twelve 30-day months and (iii)
computations of Interest at the MTN Floating Rate shall be
made on the basis for the computation of interest applicable
to the Medium Term Notes with reference to which such MTN
Floating Rate is determined hereunder). Whenever any payment
or deposit to be made hereunder shall be due on a day other
than a Business Day, such payment or deposit shall be made on
the next succeeding Business Day and such extension of time
shall be included in the computation of such payment or
deposit.
SECTION 1.08. Dividing or Combining Advances. The
------------------------------
Company may, on notice to and consent by the Agent received
at least three Business Days prior to the last day of any
Fixed Period, either (i) divide any Advance into two or more
Advances having aggregate Principal equal to the Principal of
such divided Advance, or (ii) combine any two or more
Advances made on such last day or having Fixed Periods ending
on such last day into a single Advance having Principal equal
to the aggregate Principal of such Advances.
SECTION 1.09. Increased Costs. (a) If CNAI, the
---------------
Lenders, any entity which enters into a commitment to fund
Advances or acquire interests therein, or any of their
respective Affiliates (each an "Affected Person") determines
that compliance with any law or regulation or any guideline
or request from any central bank or other governmental
authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be
maintained by such Affected Person and such Affected Person
determines that the amount of such capital is increased by or
based upon the existence of any commitment to fund the making
or maintenance of Advances or interests therein related to
this Agreement or to the funding thereof and other
commitments of the same type relating to this Agreement,
then, upon demand by such Affected Person (with a copy to the
Agent), the Company shall immediately pay to the Agent, for
the account of such Affected Person (as a third-party
beneficiary), from time to time as specified by such Affected
Person, additional amounts sufficient to compensate such
Affected Person in the light of such circumstances, to the
extent that such Affected Person reasonably determines such
increase in capital to be allocable to the existence of any
of such commitments; provided that with respect to Affected
--------
Persons other than Citibank, N.A., CNAI, CAFCO or any of
their respective Affiliates, coverage will be provided only
for increases in capital resulting from changes in laws,
regulations or guidelines from and after April 23, 1993, and
provided further, that to the extent an Affected Person has
- ----------------
received a payment under Section 1.08 (a) of the Parallel
Financing Commitment relating to a particular period of time,
such payment shall be credited against the amount that such
Affected Person would otherwise be entitled to receive under
this Section 1.09(a) for the same period of time. A
certificate as to such amounts submitted to the Company and
the Agent by such Affected Person, setting forth in
reasonable detail the basis therefor, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or
any change (other than any change by way of imposition or
increase of reserve requirements referred to in Section 1.10)
in or in the interpretation of any law or regulation or (ii)
compliance with any guideline or request from any central
bank or other governmental authority (whether or not having
the force of law), there shall be any increase in the cost to
a Lender of agreeing to fund or funding, or maintaining
Advances in respect of which Interest is computed by
reference to the Eurodollar Rate, then, upon demand by such
Lender (with a copy to the Agent), the Company shall
immediately pay to the Agent, for the account of such Lender
(as a third-party beneficiary), from time to time as
specified, additional amounts sufficient to compensate such
Lender for such increased costs, provided that to the extent
--------
a Lender has received a payment under Section 1.08(b) of the
Parallel Financing Commitment relating to a particular period
of time, such payment shall be credited against the amount
that such Lender would otherwise be entitled to receive under
this Section 1.09(b) for the same period of time. A
certificate as to such amounts submitted to the Company and
the Agent by such Lender, setting forth in reasonable detail
the basis therefor, shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 1.10. Additional Interest on Advances
-------------------------------
Bearing a Eurodollar Rate. The Company shall pay to a
- -------------------------
Lender, so long as such Lender shall be required under
regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities,
additional Interest on the unpaid Principal of each Advance
of such Lender during each Fixed Period in respect of which
Interest is computed by reference to the Eurodollar Rate, for
such Fixed Period, at a rate per annum equal at all times
during such Fixed Period to the remainder obtained by
subtracting (i) the Eurodollar Rate for such Fixed Period
from (ii) the rate obtained by dividing such Eurodollar Rate
referred to in clause (i) above by that percentage equal to
100% minus the Eurodollar Rate Reserve Percentage of such
Lender for such Fixed Period, payable on each date on which
Interest is payable on such Advance. Such additional
Interest shall be determined by such Lender and notified to
the Company through the Agent within 30 days after any
Interest payment is made with respect to which such
additional Interest is requested. A certificate as to such
additional Interest submitted to the Company and the Agent by
such Lender, setting forth in reasonable detail the basis
therefor, shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 1.11. Breakage Fee and Indemnity. If any
--------------------------
Payment Date for any Advance shall occur prior to the end of
any Fixed Period (computed, for purposes of this Section
1.11, without regard to clause (iv) of the definition of
"Fixed Period" contained in Exhibit I) for such Advance and
the CAFCO Rate for such Fixed Period for such Advance shall
be the MTN Fixed Rate or the MTN Floating Rate for such Fixed
Period, the Company hereby agrees as follows:
(a) The Company shall, if "F" (as defined below)
shall be greater than "R" (as defined below), pay to the
Owner a fee (the "Breakage Fee" for such Advance) to be
------------
computed cumulatively as of each Fee Determination Date for
such Advance as follows:
[P x (F-R)] x [1 - (1 + R/f)-n]
--- -------------
[ f ] [ R/f ]
where:
P = the amount by which Principal of such
Advance is reduced on such Fee
Determination Date;
F = if the CAFCO Rate for such Fixed Period
shall be the MTN Fixed Rate, the MTN
Fixed Rate for such Advance for such
Fixed Period; and if the CAFCO Rate for
such Fixed Period shall be the MTN
Floating Rate, the MTN Floating Rate for
such Advance in effect on such Fee
Determination Date for such Advance;
R = the highest rate of interest (which will
be a fixed interest rate if the MTN Fixed
Rate shall apply for such Fixed Period,
and which will be a floating interest
rate, based on the same "Interest Rate
Base" (as identified in the related
Notice of Advanced and/or CAFCO Rate) as
in effect on such Fee Determination Date,
if the MTN Floating Rate shall apply for
such Fixed Period) at which the Agent on
behalf of the Lender shall be permitted
under the Lender's credit and investment
policy to reinvest on such Fee
Determination Date the amount of "P"
above; provided that "R" shall not be
--------
less than the yield to maturity of U.S.
Treasury notes trading closest to par
value and maturing within three months of
the last day of such Interest Period;
f = the frequency per year (maximum amount of
times per year) that Interest for such
Advance for such Fixed Period shall be
payable; and
n = the number of originally scheduled
Settlement Periods (in whole or in part)
remaining in such Fixed Period from such
Fee Determination Date to the last day of
such Fixed Period.
The portion of the Breakage Fee for such Advance computed as
of each Fee Determination Date for such Advance shall be
payable by the Company within three Business Days after such
Fee Determination Date.
(b) The Company shall, in addition to paying the
Breakage Fee for such Advance for such Fixed Period,
indemnify and hold harmless the Lender for all losses, costs,
liabilities and expenses which such Lender may incur solely
as a result of the occurrence of such Payment Date and for
which such Lender is not compensated by the payment of such
Breakage Fee.
<PAGE>
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
EVENTS OF DEFAULT
-----------------------------------------
SECTION 2.01. Representations and Warranties;
-------------------------------
Covenants. The Company hereby makes the representations and
- ---------
warranties, and hereby agrees to perform and observe the
covenants, set forth in Exhibits III and IV, respectively,
hereto.
SECTION 2.02. Events of Default. If any of the
-----------------
Events of Default set forth in Exhibit V hereto shall occur
and be continuing, the Agent shall, at the request, or may
with the consent of any Lender, by notice to the Company,
declare the Payment Date to have occurred, whereupon the
Payment Date shall forthwith occur, and, without limiting the
foregoing, all Principal, Interest, fees and all other
amounts payable hereunder shall be forthwith due and payable,
without presentment, demand, protest, or further notice of
any kind, all of which are hereby expressly waived by the
Company, and in addition or separately, may designate another
Person to succeed Ohio Edison or Penn Power as Collection
Agent; provided that, if the Event of Default relates solely
--------
to Ohio Edison or Ohio Edison Receivables, only Ohio Edison
may be replaced as Collection Agent, and if the Event of
Default relates solely to Penn Power or Penn Power
Receivables, only Penn Power may be replaced as a Collection
Agent; provided further that, automatically upon the
----------------
occurrence of any event (without any requirement for the
passage of time or the giving of notice) described in
paragraph (i) of Exhibit V, the Payment Date shall occur,
Ohio Edison and Penn Power shall cease to be the Collection
Agents, and CNAI or one of its Affiliates shall become the
sole Collection Agent. Upon any such declaration or
designation or upon any such automatic termination, the
Lenders and the Agent shall have, in addition to the rights
and remedies which they may have under this Agreement, all
other rights and remedies provided under applicable law,
including all rights and remedies under the UCC of a secured
party after default.
ARTICLE III.
INDEMNIFICATION
---------------
SECTION 3.01. Indemnities by the Company. Without
--------------------------
limiting any other rights that the Agent or the Lenders or
any Affiliate thereof (each, an "Indemnified Party") may have
hereunder or under applicable law, the Company hereby agrees
to indemnify each Indemnified Party from and against any and
all claims, losses and liabilities to Third Parties
(including reasonable attorneys' fees) (all of the foregoing
being collectively referred to as "Indemnified Amounts") in
each case arising out of or resulting from this Agreement or
the use of proceeds of Advances or in respect of any
Receivable or any Contract, excluding, however, (x)
Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of such
Indemnified Party or (y) any income taxes incurred by such
Indemnified Party arising out of or as a result of this
Agreement or the making of Advances or in respect of any
Receivable or any Contract. Without limiting or being
limited by the foregoing, the Company shall pay on demand to
each Indemnified Party any and all amounts necessary to
indemnify such Indemnified Party from and against any and all
Indemnified Amounts relating to or resulting from any of the
following:
(i) the failure by the Company, Ohio Edison
or Penn Power to comply with any applicable law, rule or
regulation with respect to any Pool Receivable or the
related Contract; or the failure of any Pool Receivable
or the related Contract to conform to any such
applicable law, rule or regulation;
(ii) any claim resulting from the sale of the
electricity related to any Pool Receivable or the
furnishing or failure to furnish such electricity;
(iii) any products liability claim arising out
of or in connection with (a) the electricity which is
provided under any Contract or (b) any goods related to
a DSM Loan;
(iv) reliance on any representation or
warranty made by the Company (or any of its officers)
under or in connection with this Agreement or the
Original Agreement which shall have been incorrect in
any material respect when made;
(v) the failure to create in favor of the
Agent a valid and perfected prior security interest in
Receivables in or purporting to be in the Receivables
Pool, free and clear of Adverse Claims;
(vi) any shortfall in Collections resulting
from the failure or inability of Ohio Edison to turn
over or assign to the Company any security deposit which
it holds with respect to an Obligor of a Pool
Receivable;
(vii) any Adverse Claim affecting the Pool
Receivables arising from the First Mortgage Indenture or
the filing or existence of financing statements with
respect to the First Mortgage Indenture;
(viii) any regulatory mandate requiring (a) the
extension, amendment or other modification of the terms
of any Pool Receivable, (b) the amendment, modification
or waiver of any term or condition of any Contract
related thereto or (c) a change in the character of the
Company's business or in the Credit and Collection
Policy which, in either case set forth in this clause
(c), materially adversely affects the collectibility of
the Pool Receivables or the ability of the Company to
perform its obligations under this Agreement or the
Collection Agent Agreements; or
(ix) any failure of the Company to use (a) all
the proceeds of the Advances to purchase Receivables in
accordance with the Ohio Edison Receivables Purchase
Agreement and/or, subject to compliance with paragraph 3
of Exhibit II, the Penn Power Receivables Purchase
Agreement and (b) to the extent required to maintain the
Borrowing Base at a level that is not less than 110% of
the sum of the aggregate outstanding Principal of all
Advances and the aggregate outstanding "Principal" of
all "Advances" under the Parallel Purchase Commitment,
all Collections released to it pursuant to Section
1.05(b) to pay Advances and/or purchase Receivables in
accordance with the Ohio Edison Receivables Purchase
Agreement and/or, subject to compliance with paragraph 3
of Exhibit II, the Penn Power Receivables Purchase
Agreement.
ARTICLE IV.
MISCELLANEOUS
-------------
SECTION 4.01. Amendments, Etc. No amendment or
----------------
waiver of any provision of this Agreement or consent to any
departure therefrom shall be effective unless in a writing
signed by the Agent, as agent for the Lenders, and by the
Company, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given. No failure on the part of the
Lenders or the Agent or the Company to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
SECTION 4.02. Notices, Etc. All notices and other
-------------
communications hereunder shall, unless otherwise stated
herein, be in writing (including facsimile communication) and
faxed or delivered, to each party hereto, at its address set
forth under its name on the signature pages hereof or at such
other address as shall be designated by such party in a
written notice to the other parties hereto. Notices and
communications by facsimile shall be effective when faxed
against receipt of answerback.
SECTION 4.03. Assignability; Termination. (a)
The --------------------------
Advances, this Agreement and a Lender's rights therein shall
be assignable by a Lender and its successors and assigns only
to an Eligible Assignee and any such Eligible Assignee may
assign such Advances, this Agreement and such rights to any
other Eligible Assignee. The Company may not assign its
rights hereunder or any interest herein without the prior
written consent of the Agent.
(b) Each assignor shall notify the Agent and the
Company of any such assignment and may, in connection with
the assignment or participation, disclose to the assignee or
participant any information relating to the Company furnished
to such assignor by or on behalf of the Company or by the
Agent; provided that, prior to any such disclosure, the
--------
assignee or participant agrees to preserve the
confidentiality of any confidential information relating to
the Company received by it from any of the foregoing
entities.
(c) The provisions of Sections 1.09, 1.10, 3.01,
4.04, 4.05 and 4.06 shall survive any termination of this
Agreement.
SECTION 4.04. Costs, Expenses and Taxes. (a) In
-------------------------
addition to the rights of indemnification granted under
Section 3.01 hereof, the Company agrees to pay on demand all
reasonable costs and expenses in connection with the
preparation, execution, delivery and administration
(including periodic audits other than routine annual audits)
of this Agreement and the other documents and agreements to
be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect thereto and with respect to advising the
Agent as to its rights and remedies under this Agreement, and
all reasonable costs and expenses, if any (including
reasonable counsel fees and expenses), of the Agent, CNAI,
the Lenders and their respective Affiliates, in connection
with the enforcement of this Agreement and the other
documents and agreements to be delivered hereunder.
(b) In addition, the Company shall pay on demand
any and all commissions of placement agents and dealers in
respect of Commercial Paper Notes, or Medium Term Notes, or
both, issued to fund the making or maintenance of the
Advances and any and all stamp and other taxes and fees
payable in connection with the execution, delivery, filing
and recording of this Agreement or the other documents or
agreements to be delivered hereunder, and agrees to save each
Indemnified Party harmless from and against any liabilities
with respect to or resulting from any delay in its paying or
omitting to pay such taxes and fees.
(c) The Company shall also pay on demand all other
costs, expenses and taxes (excluding income taxes) incurred
by CAFCO or any stockholder of CAFCO ("Other Costs"),
including, without limitation, the cost of auditing CAFCO's
books by certified public accountants, the cost of rating
CAFCO's Commercial Paper Notes or Medium Term Notes, or both,
by independent financial rating agencies, the issuance fee in
respect of CAFCO's Medium Term Notes charged by and payable
to the Agent, the cost of issuing CAFCO's Commercial Paper
Notes or Medium Term Notes, or both, the taxes (excluding
income taxes) resulting from CAFCO's operations, and the
reasonable fees and out-of-pocket expenses of counsel for
CAFCO or any counsel for any shareholder of CAFCO with
respect to (i) advising CAFCO or any shareholder of CAFCO as
to its rights and remedies under this Agreement, (ii) the
enforcement (whether through negotiations, legal proceedings
or otherwise) of this Agreement and the other documents to be
delivered hereunder, (iii) advising CAFCO or any shareholder
of CAFCO as to matters relating to CAFCO's operations, or
(iv) advising CAFCO or any shareholder of CAFCO as to the
issuance of CAFCO's Commercial Paper Notes or Medium Term
Notes, or both, and acting in connection with such issuance;
provided that the Company and any other Persons who from time
- --------
to time grant or transfer to CAFCO security or ownership
interests in receivables ("Other Companies"), each shall be
liable for such Other Costs ratably in accordance with the
usage under their respective facilities; and provided further
----------------
that, if such Other Costs are not attributable to the Company
and are attributable to any Other Company, the Company shall
not be liable for any such Other Costs; and provided still
--------------
further that, if such Other Costs are attributable to the
- -------
Company and not attributable to any Other Company, the
Company shall be solely liable for such Other Costs.
SECTION 4.05. No Proceedings. Each of the
--------------
Company, the Agent, each Lender, each Eligible Assignee and
each entity which enters into a commitment to purchase
interests in the Advances hereby agrees that it will not
institute against CAFCO any proceeding of the type referred
to in paragraph (i) of Exhibit V so long as any Commercial
Paper Notes or Medium Term Notes issued by CAFCO shall be
outstanding or there shall not have elapsed one year plus one
day since the last day on which any such Commercial Paper
Notes shall have been outstanding.
SECTION 4.06. Confidentiality. Unless otherwise
---------------
required by applicable law or any regulatory body or agency
having jurisdiction over the Company, Ohio Edison or Penn
Power, the Company agrees to maintain the confidentiality of
this Agreement (and all drafts thereof) in communications
with third parties and otherwise; provided that this
--------
Agreement may be disclosed to (i) third parties to the extent
such disclosure is made pursuant to a written agreement of
confidentiality in form and substance reasonably satisfactory
to the Agent, and (ii) the Company's legal counsel and
auditors if they agree (whether in writing or orally) to hold
it confidential; provided further that the Company shall have
----------------
no obligation of confidentiality in respect of this Agreement
(and drafts thereof), other than to refrain from
affirmatively publishing or disseminating the contents
thereof, to the extent that information with respect thereto
becomes available to the public through no fault of the
Company.
SECTION 4.07. Governing Law; Execution in
---------------------------
Counterparts. (a) This Agreement shall be governed by, and
- ------------
construed in accordance with, the law of the State of New
York.
(b) This Agreement may be executed in any number
of counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
OES CAPITAL, INCORPORATED
By: T.F. Struck, II
--------------------------
Title: Assistant Treasurer
76 South Main Street
Akron, Ohio 44308
Attention: Treasurer
(TWX 216-384-3772
Answerback _______________)
CORPORATE ASSET FUNDING COMPANY,
INC.
By: Citicorp North America,
Inc., as Attorney-in-Fact
By: A. Bovino
---------------------
Vice President
450 Mamaroneck Avenue
Harrison, NY 10528
Attention: Corporate Asset Funding
Facsimile No. 914-889-7890
CITICORP NORTH AMERICA, INC.,
as Agent
By: A. Bovino
--------------------------
Vice President
450 Mamaroneck Avenue
Harrison, NY 10528
Attention: Corporate Asset Funding
Facsimile No. 914-889-7890
<PAGE>
EXHIBIT I
DEFINITIONS
-----------
As used in the Agreement (including its Exhibits),
the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Adverse Claim" means a lien, security interest or
-------------
other charge or encumbrance, or any other type of
preferential arrangement.
"Affiliate" means, as to any Person, any other
---------
Person that, directly or indirectly, is in control of, is
controlled by or is under common control with such Person or
is a director or officer of such Person; provided that no
--------
Person shall be deemed to be an Affiliate of an Obligor until
Ohio Edison, in the case of Ohio Edison Receivables, or Penn
Power, in the case of Penn Power Receivables, shall have
knowledge of such fact.
"Affiliated Obligor" means any Obligor that is an
------------------
Affiliate of another Obligor.
"Agent's Account" means the special account
---------------
(account number 40541346) of the Agent maintained at the
office of Citibank, N.A. at 399 Park Avenue, New York, New
York.
"Alternate Base Rate" means a fluctuating interest
-------------------
rate per annum as shall be in effect from time to time, which
rate shall be at all times equal to the higher of:
(a) the rate of interest announced publicly
by Citibank, N.A. in New York, New York, from time
to time as Citibank, N.A.'s base rate; or
(b) 1/2 of one percent above the Federal
Funds Rate from time to time.
"Amortization Day" means (i) each day during a
----------------
Settlement Period on which the conditions set forth in
paragraph 2 of Exhibit II are not satisfied, provided such
--------
conditions remain unsatisfied during such Settlement Period,
and (ii) each day which occurs on or after the Payment Date.
"Assignee Rate" for any Fixed Period for any
-------------
Advance means an interest rate per annum equal to
(a) 0.375% plus the Eurodollar Rate for such
Fixed Period plus
(b) during any period when Ohio Edison's
long-term public senior debt securities are not
rated at least BBB- by Standard & Poor's
Corporation or Baa3 by Moody's Investors Services,
Inc. or, if any such securities are not publicly
rated at such time, the Agent has determined, in
its sole discretion, that such securities would not
receive such ratings if they were publicly rated),
a rate of 1% per annum;
provided that, in the case of
- --------
(i) any Fixed Period on or prior to the first
day of which a Lender shall have notified the Agent
that the introduction of or any change in or in the
interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for such
Lender to fund such Advance at the Assignee Rate
set forth above (and such Lender shall not have
subsequently notified the Agent that such
circumstances no longer exist),
(ii) any Fixed Period of one to (and
including) 29 days,
(iii) any Fixed Period as to which the Agent
does not receive notice, by no later than 12:00
noon (New York City time) on the third Business Day
preceding the first day of such Fixed Period, that
the related Advance will not be funded by issuance
of commercial paper, or
(iv) any Fixed Period for an Advance the
Principal of which allocated to the Lender is less
than $500,000,
the "Assignee Rate" for such Fixed Period (but in the case of
-------------
clause (i) above, only with respect to the portion of the
Advance attributable to such Lender) shall be an interest
rate per annum equal to the Alternate Base Rate in effect on
the first day of such Fixed Period; provided further that the
----------------
Agent and the Company may agree in writing from time to time
upon a different "Assignee Rate."
-------------
"Borrowing Base" means at any time the aggregate of
--------------
the Outstanding Balances of the Eligible Receivables then in
the Receivables Pool reduced by the aggregate amount by which
the Outstanding Balance of Eligible Receivables of each
Obligor then in the Receivables Pool exceeds the product of
(A) the Concentration Limit for such Obligor multiplied by
(B) the Outstanding Balance of the Eligible Receivables then
in the Receivables Pool.
"Breakage Fee" has the meaning specified in Section
------------
1.11.
"Breakage Increment" means, (i) for any Advance for
------------------
which the CAFCO Rate for any Fixed Period shall be either an
MTN Fixed Rate, or an initial MTN Floating Rate, which is
less than 12% per annum and at any time during such Fixed
Period, an amount equal to the Breakage Fee for such Advance
at such time, computed in accordance with the formula
contained in Section 1.11(a) but giving effect to the
Breakage Increment Adjustments described below, (ii) for any
Advance for which the CAFCO Rate for any Fixed Period shall
be either an MTN Fixed Rate, or an initial MTN Floating Rate,
which is equal to or higher than 12% per annum and at any
time during such Fixed Period, an amount to be determined by
a computation to which the Agent and the Company shall have
agreed in writing pursuant to Section 1.03(c), and (iii) for
any Advance at any other time, zero. The "Breakage Increment
Adjustments" shall, in the determination at any time of the
Breakage Increment for any Advance for any Fixed Period, be:
"P" in the formula contained in Section 1.11(a)
shall equal the entire amount of the Principal of such
Advance at such time, and
"R" in such formula shall equal the fixed interest
rate per annum borne by Medium Term Notes, if any,
issued by the Lender of such Advance on the date of such
determination and having a term equal to the period from
such date to the last day of such Fixed Period, or, if
there shall be no such Medium Term Notes, the fixed
interest rate per annum which would be borne by Medium
Term Notes if issued by such Lender on the date of such
determination for such a term, such rate to be the
average of quotations for such rate received by the
Agent from two securities dealers of recognized standing
selected by the Agent, adjusted to the nearest 1/8 of 1%
per annum or, if there is no nearest 1/8 of 1% per
annum, to the next higher 1/8 of 1% per annum.
"Business Day" means any day on which (i) banks are
------------
not authorized or required to close in New York City or
Akron, Ohio, and (ii) if this definition of "Business Day" is
utilized in connection with the Eurodollar Rate, dealings are
carried out in the London interbank market.
"CAFCO" means Corporate Asset Funding Company, Inc.
-----
and any successor or assign of CAFCO that is a receivables
investment company which in the ordinary course of its
business issues commercial paper or other securities to fund
its acquisition and maintenance of receivables.
"CAFCO Rate" for any Fixed Period for any Advance
----------
means one of the following rates, as determined for such
Fixed Period in accordance with the terms and conditions of
Section 1.02 or 1.03;
(i) the CP Rate for such Fixed Period, or
(ii) the MTN Fixed Rate for such Fixed Period,
or
(iii) the MTN Floating Rate in effect from time
to time for such Fixed Period;
provided that if the Lender shall not, at any time and for
- --------
any reason, fund its Advance or maintenance of such Advance
for such Fixed Period by its issuing Commercial Paper Notes
or Medium Term Notes, the "CAFCO Rate" for such Fixed Period
----------
shall then be the Assignee Rate for such Fixed Period or such
other rate as the Agent and the Company shall agree to in
writing; and provided further that, if the Lender so requests
----------------
and the Company consents thereto, the "CAFCO Rate" for any
----------
Fixed Period of one day shall be the Assignee Rate for such
Fixed Period.
"Code" shall mean the Internal Revenue Code of
----
1986, as the same may be amended from time to time.
"Collateral Report" means a report, in
-----------------
substantially the form of Annex A hereto, furnished by a
Collection Agent to the Agent pursuant to the Collection
Agent Agreement.
"Collection Agent" means, to the extent the Company
----------------
does not act as such, Ohio Edison, with respect to the Ohio
Edison Receivables, and Penn Power, with respect to the Penn
Power Receivables, or if at any time Ohio Edison or Penn
Power or the Company, as the case may be, is prevented from
acting as such pursuant to the terms of a Collection Agent
Agreement, such other Person then authorized pursuant to the
Collection Agent Agreement to administer and collect Pool
Receivables.
"Collection Agent Agreement" means an agreement
--------------------------
among the Company, the Collection Agent (if not the Company)
and the Agent, in form and substance satisfactory to them,
governing the appointment and responsibilities of a
Collection Agent as to administration and collection of all
or part of the Pool Receivables, and requiring such
Collection Agent to perform its obligations set forth in the
Agreement.
"Collection Agent Fee" shall mean the collection
--------------------
agent fee referred to in a Collection Agent Agreement.
"Collections" means, with respect to any
-----------
Receivable, all cash collections and other cash proceeds of
such Receivable, including, without limitation, all cash
proceeds of Related Security with respect to such Receivable,
prior to the time the same are released to the Company.
"Commercial Paper Note" means a promissory note
---------------------
having a term not exceeding 270 days.
"Concentration Limit" for any Obligor means at any
-------------------
time 3%, or such other percentage ("Special Concentration
Limit") for such Obligor designated by the Agent in writing
delivered to the Company; provided that, with respect to
--------
Receivables relating to DSM Loans, the Special Concentration
Limit for any Obligor shall, unless otherwise approved by the
Agent, be $1,500,000; provided further that, in the case of
----------------
an Obligor with any Affiliated Obligor, the Concentration
Limit shall be calculated as if such Obligor and such
Affiliated Obligor are one Obligor; provided still further
----------------------
that the Agent may cancel any Special Concentration Limit
upon three Business Days' notice to the Company.
"Contract" means (a) any of the Tariffs and (b) an
--------
agreement between Ohio Edison or the Company, as the case may
be, and an Obligor, pursuant to which such Obligor shall be
obligated to repay the DSM Loan made by Ohio Edison or the
Company, as the case may be, to such Obligor.
"Controlled Group" means all members of a
----------------
controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which,
together with the Company, are treated as a single employer
under Section 414 of the Code.
"CP Rate" for any Fixed Period for any Advance
-------
means the interest rate per annum equivalent to the rate (or
if more than one rate, the weighted average of the rates) at
which Commercial Paper Notes of the Lender having a term
equal to such Fixed Period and to be issued to make or
maintain the Advance by such Lender may be sold by any
placement agent or dealer selected by such Lender, as agreed
between each such agent or dealer and such Lender and
notified by such Lender to the Agent and the Collection
Agent; provided that, if the rate (or rates) as agreed
--------
between any such agent or dealer and such Lender with regard
to any Fixed Period for any Advance is a discount rate (or
rates), the "CP Rate" for such Fixed Period shall be the rate
-------
(or if more than one rate, the weighted average of the rates)
resulting from converting such discount rate (or rates) to an
interest-bearing equivalent rate per annum.
"Credit and Collection Policy" means those
----------------------------
receivables credit and collection policies and practices in
effect on the date of the Agreement and described in Schedule
II, as modified in compliance with the Agreement.
"Debt" means (i) indebtedness for borrowed money,
----
(ii) obligations evidenced by bonds, debentures, notes or
other similar instruments, (iii) obligations to pay the
deferred purchase price of property or services, (iv)
obligations as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting
principles, recorded as capital leases, (v) obligations under
direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of kinds referred to in
clauses (i) through (iv) above, and (vi) liabilities in
respect of unfunded vested benefits under plans covered by
Title IV of ERISA.
"Default" means any condition, act or event which,
-------
with notice or lapse of time or both, would constitute an
Event of Default.
"Default Ratio" means the ratio (expressed as a
-------------
percentage) computed as of the last day of each calendar
month by dividing (i) the aggregate Outstanding Balance of
all Pool Receivables that were Defaulted Receivables on such
day or that would have been Defaulted Receivables on such day
had they not been written off the books of the Company during
such month by (ii) the aggregate Outstanding Balance of all
Pool Receivables on such day.
"Defaulted Receivable" means a Receivable:
--------------------
(i) as to which any payment, or part thereof,
remains unpaid for 90 days (x) from the original
date when billed or (y), in the case of a
Receivable arising from a DSM Loan, from the due
date of such payment (it being understood that, if
any payment, or any part thereof, in respect of a
DSM Loan remains unpaid for 90 days from the due
date of such payment, or part thereof, all amounts
payable and to be paid in respect of such DSM Loan,
including principal, interest, and other amounts,
shall constitute a Defaulted Receivable);
(ii) as to which the Obligor thereof or any
other Person obligated thereon or owning any
Related Security in respect thereof has taken any
action, or suffered any event to occur, of the type
described in paragraph (i) of Exhibit V; or
(iii) which, consistent with the Credit and
Collection Policy, would be written off the
Company's books as uncollectible.
"Designated Obligor" means, at any time, each
------------------
Obligor; provided that any Obligor shall cease to be a
--------
Designated Obligor upon three Business Days' notice by the
Agent to the Company.
"DSM Loan" means an extension of credit by Ohio
--------
Edison or the Company, pursuant to Ohio Edison's Demand Side
Management Project Financing Program, to a commercial or
industrial customer of Ohio Edison in order to finance
qualified energy efficiency projects of such customer.
"Eligible Assignee" means Citibank, N.A., CNAI or
-----------------
any of their Affiliates, any Person managed by Citibank,
N.A., CNAI or any of their Affiliates, or any financial or
other institution which is acceptable to the Agent and
approved by the Company, which approval shall not be
unreasonably withheld.
"Eligible Receivable" means, at any time, a
-------------------
Receivable:
(i) the Obligor of which (A) is a United
States resident, (B) is not an Affiliate of any of
the parties hereto or of Ohio Edison or Penn Power,
and (C) is not a government or a governmental
subdivision or agency (except, in the case of this
clause (C), for such Receivables as shall not, in
the aggregate for all such governmental Obligors,
have an Outstanding Balance at such time in excess
of 10% of the aggregate Outstanding Balance of all
Pool Receivables at such time);
(ii) the Obligor of which is a Designated
Obligor and is not the Obligor of any Defaulted
Receivables which in the aggregate constitute 5% or
more of the aggregate Outstanding Balance of all
Receivables of such Obligor;
(iii) which is not a Defaulted Receivable;
(iv) which, in the case of Receivables other
than Receivables arising from a DSM Loan, if not
paid in full, would allow Ohio Edison or Penn
Power, as the case may be, to shut off electric
service to the Obligor thereof not later than 120
days after the original billing date thereof;
(v) the nature of which is such that its
financing with the proceeds of Commercial Paper
Notes issued by CAFCO would constitute a "current
transaction" within the meaning of Section 3(a)(3)
of the Securities Act of 1933, as amended, and
which, except for Receivables arising from DSM
Loans, is an account receivable representing all or
part of the sales price of merchandise, insurance
and services within the meaning of Section 3(c)(5)
of the Investment Company Act of 1940, as amended;
(vi) which is an "account" or, in the case of
Receivables arising from DSM Loans, a "general
intangible", within the meaning of Section 9-106 of
the UCC of the applicable jurisdictions governing
the perfection of security interests therein;
(vii) which is denominated and payable only in
United States dollars in the United States;
(viii) which arises under a Contract which,
together with such Receivable, is in full force and
effect and constitutes the legal, valid and binding
obligation of the Obligor of such Receivable and is
not subject to any dispute, offset, counterclaim or
defense whatsoever (except the potential discharge
in bankruptcy of such Obligor);
(ix) which, together with the Contract related
thereto, does not contravene in any material
respect any laws, rules or regulations applicable
thereto (including, without limitation, laws, rules
and regulations relating to usury, consumer
protection, truth in lending, fair credit billing,
fair credit reporting, equal credit opportunity,
fair debt collection practices and privacy) and
with respect to which neither the Company nor Ohio
Edison is in violation of any such law, rule or
regulation in any material respect;
(x) which (A) satisfies all applicable
requirements of the Credit and Collection Policy
and (B) complies with such other reasonable
criteria and requirements as the Agent may from
time to time specify to the Company upon 30 days'
notice, which notice shall only apply to
Receivables originating after the expiration of
such 30 day period; and
(xi) which, in the case of a Receivable
arising from a DSM Loan, represents the payments
due from the Obligor thereof for a period of not
more than 60 months thereafter, provided that
--------
Receivables arising from DSM Loans shall not, in
the aggregate for all such Receivables, have an
Outstanding Balance at any time in excess of
$50,000,000.
"ERISA" means the Employee Retirement Income
-----
Security Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"Eurocurrency Liabilities" has the meaning assigned
------------------------
to that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Rate" means, for any Fixed Period, an
---------------
interest rate per annum equal to the rate per annum at which
deposits in U.S. dollars are offered by the principal office
of Citibank, N.A. in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Fixed Period in an
amount substantially equal to the Principal associated with
such Fixed Period on such first day and for a period equal to
such Fixed Period.
"Eurodollar Rate Reserve Percentage" for a Lender
----------------------------------
for any Fixed Period in respect of which Interest is computed
by reference to the Eurodollar Rate means the reserve
percentage applicable two Business Days before the first day
of such Fixed Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System
(or any successor) (or if more than one such percentage shall
be applicable, the daily average of such percentages for
those days in such Fixed Period during which any such
percentage shall be so applicable) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on
Eurocurrency Liabilities is determined) having a term equal
to such Fixed Period.
"Event of Default" has the meaning specified in
----------------
Exhibit V.
"Federal Funds Rate" means, for any period, a
------------------
fluctuating interest rate per annum equal for each day during
such period to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized
standing selected by the Agent.
"Fee Determination Date" means (i) for any Advance
----------------------
for purposes of the computation of the Breakage Fee for such
Advance under Section 1.11, each day on which an amount of
Principal of such Advance is reduced and (ii) for any Advance
for purposes of the computation of the Breakage Fee under the
definition of 'Breakage Increment' contained in this Exhibit
I, each time such calculation is made.
"Finance Limit" means $120,000,000 (or such larger
-------------
amount as the Company may request in writing, each such
request setting forth the amount of the requested increase,
which in the case of any such request shall not be less than
$5,000,000, and Citibank shall consent to, provided that the
--------
Finance Limit shall in no event exceed $170,000,000), as such
amount may be reduced pursuant to Section 1.01(b).
References to the unused portion of the Finance Limit shall
mean, at any time, the Finance Limit, as then reduced
pursuant to Section 1.01(b) or as set forth below, minus the
sum of the then outstanding Principal of Advances under the
Agreement and the then outstanding "Principal" of "Advances"
under the Parallel Purchase Commitment. Furthermore, on each
day on which the Company reduces (other than by use) the
unused portion of (or terminates) the "Commitment" under the
Parallel Purchase Commitment, the Finance Limit automatically
shall reduce by the same amount (or so terminate).
"First Mortgage Indenture" means the indenture
------------------------
between Ohio Edison and Bankers Trust Company, as Trustee,
dated as of August 1, 1930, as heretofore and hereafter
supplemented and amended.
"Fixed Period" means, with respect to any Advance,
------------
a period determined pursuant to Section 1.02 or 1.03 provided
--------
that
(i) any Fixed Period in respect of which Interest
is computed by reference to the Assignee Rate shall be a
period from one to and including 29 days, or a period of
one, two or three months, as the Company may select as
provided above;
(ii) any Fixed Period (other than of one day) which
would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day
(provided that, if Interest is computed by reference to
--------
the Eurodollar Rate and such Fixed Period would
otherwise end on a day which is not a Business Day, and
there is no subsequent Business Day in the same calendar
month as such day, such Fixed Period shall end on the
next preceding Business Day);
(iii) in the case of any Fixed Period of one day,
(A) if such Fixed Period is the initial Fixed Period for
an Advance, such Fixed Period shall be the day such
Advance is made; (B) any subsequently occurring Fixed
Period which is one day shall, if the immediately
preceding Fixed Period is more than one day, be the last
day of such immediately preceding Fixed Period, and, if
the immediately preceding Fixed Period is one day, be
the day next following such immediately preceding Fixed
Period; and (C) if such Fixed Period occurs on a day
immediately preceding a day which is not a Business Day,
such Fixed Period shall be extended to the next
succeeding Business Day;
(iv) in the case of any Fixed Period for any
Advance which commences before the Payment Date and
could otherwise end on a date occurring after the
Payment Date, such Fixed Period shall end on the Payment
Date and the duration of each Fixed Period which
commences on or after the Payment Date shall be of such
duration as shall be selected by the Agent; and
(v) any Fixed Period during which Interest is
computed at the Alternative Base Rate as a result of the
application of clause (iii) of the proviso to the
definition of Assignee Rate shall be the greater of one
day or such number of days (not to exceed 270 days) as
the Company shall select (after the application of such
clause (iii)) and the Agent shall approve on notice by
the Company received by the Agent (including notice by
telephone confirmed in writing) not later than 11:00
a.m. (New York City time) on the first Business Day
preceding the first day of such Fixed Period.
<PAGE>
"Interest" means for each Advance for any Fixed
--------
Period:
IR x P x ED + LF + BF
--
+BI
where:
IR = the CAFCO Rate for such Advance for such
Fixed Period;
P = the Principal of such Advance during such
Fixed Period;
BI = that number of days comprising a year
which is the basis for computing the
CAFCO Rate for such Advance for such
Fixed Period;
ED = the actual number of days elapsed during
such Fixed Period;
LF = the Liquidation Fee, if any, for such
Advance for such Fixed Period; and
BF = the Breakage Fee, if any, for such
Advance for such Fixed Period;
provided that no provision of this Agreement shall require
- --------
the payment or permit the collection of Interest in excess of
the maximum permitted by applicable law; and provided
--------
further that Interest for any Advance shall not be considered
- -------
paid by any distribution if at any time such distribution is
rescinded or must otherwise be returned for any reason.
"Lenders" means CAFCO and all other owners by
-------
assignment or otherwise of an Advance and, to the extent of
the undivided interests so purchased, shall include any
participants.
"Liquidation Fee" means, for each Advance for any
---------------
Fixed Period (computed without regard to clause (iv) of the
definition of "Fixed Period") during which an Amortization
Day occurs and for which the CAFCO Rate shall be neither the
MTN Fixed Rate nor the MTN Floating Rate, the amount, if any,
by which (i) the additional Interest (calculated without
taking into account any Liquidation Fee) which would have
accrued during such Fixed Period on the reductions of
Principal of such Advance relating to such Fixed Period (as
so computed) if such reductions had remained as Principal,
exceeds (ii) the income, if any, received by the Lender
investing the proceeds of such reductions of Principal.
"Medium Term Note" means a promissory note having a
----------------
term exceeding 270 days but not exceeding three years.
"MTN Fixed Rate" for any Fixed Period for any
--------------
Advance means the fixed interest rate per annum offered by
the Lender in respect of Medium Term Notes issued or to be
issued by such Lender for a term (or a remaining term) equal
to such Fixed Period and to be used by such Lender to make or
maintain the Advance, such fixed interest rate per annum to
be notified by or on behalf of such Lender to the Agent and
the Collection Agent.
"MTN Floating Rate" for any Fixed Period for any
-----------------
Advance means the floating interest rate per annum
(determined by reference to an interest rate formula) in
effect from time to time offered by the Lender in respect of
Medium Term Notes issued or to be issued by such Lender for a
term (or a remaining term) equal to such Fixed Period and to
be used by such Lender to make or maintain the Advance, such
floating interest rate per annum to be notified by or on
behalf of such Lender to the Agent and the Collection Agent.
"Multiemplover Plan" shall mean a multiemployer
------------------
plan as defined in Section 4001(a)(3) of ERISA.
"Notice of Advance and/or CAFCO Rate" has the
-----------------------------------
meaning specified in Section 1.03.
"Obligor" means a Person obligated to make payments
-------
pursuant to a Contract.
"Ohio Edison" means Ohio Edison Company, an Ohio
-----------
corporation.
"Ohio Edison Agreement" means an agreement between
---------------------
Ohio Edison and the Agent, in form and substance satisfactory
to them, pursuant to which Ohio Edison agrees, among other
things, to transfer certain Receivables.
"Ohio Edison Receivable" means a Receivable arising
----------------------
under a Contract under which Ohio Edison provides electric
service or, in connection with a Receivable arising from a
DSM Loan, a Receivable the Obligor of which is a commercial
or industrial customer of Ohio Edison.
<PAGE>
"Ohio Edison Receivables Purchase Agreement" means
------------------------------------------
the Receivables Purchase Agreement between the Company and
Ohio Edison annexed to the Ohio Edison Agreement as Exhibit
A.
"Outstanding Balance" of any Receivable at any time
-------------------
means the then outstanding principal balance thereof.
"Parallel Purchase Commitment" means the
----------------------------
Receivables Financing Agreement, dated as of November 28,
1989, as amended and restated as of June 1, 1992, and as
further amended and restated as of the date hereof, among the
Company, Citibank, N.A., and CNAI, individually and as Agent,
as the same may, from time to time, be amended, modified or
supplemented.
"Payment Date" means the earlier of (a) April 23,
------------
1996, or (b) the earlier of the date determined pursuant to
Section 2.02 or the date the Finance Limit reduces to zero or
(c) any date that an Event of Default has occurred and is not
waived by the Agent.
"PBGC" shall mean the Pension Benefit Guaranty
----
Corporation referred to and defined in ERISA and any
successor thereto.
"Penn Power" means Pennsylvania Power Company, a
----------
Pennsylvania corporation.
"Penn Power Agreement" means an agreement between
--------------------
Penn Power and the Agent, in form and substance satisfactory
to them, pursuant to which Penn Power agrees, among other
things, to transfer certain Receivables.
"Penn Power Receivable" means a Receivable arising
---------------------
under a Contract under which Penn Power provides electric
service.
"Penn Power Receivables Purchase Agreement" means
-----------------------------------------
the Receivables Purchase Agreement between the Company and
Penn Power annexed to the Penn Power Agreement as Exhibit A.
"Person" means an individual, partnership,
------
corporation (including a business trust), joint stock
company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision or
agency thereof.
"Plan" shall mean at any time an employee pension
----
benefit plan which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the
Code and is maintained by a member of the Controlled Group
for employees of a member of the Controlled Group.
"Pool Receivable" means an Ohio Edison Receivable
---------------
or a Penn Power Receivable in the Receivables Pool.
"Principal" of any Advance means the original
---------
amount of such Advance paid to the Company pursuant to the
Agreement, or such amount divided or combined in accordance
with Section 1.08, in each case reduced from time to time by
Collections distributed or payments made on account of such
Principal pursuant to Section 1.05; provided that if such
--------
Principal shall have been reduced by any distribution and
thereafter all or a portion of such distribution is rescinded
or must otherwise be returned for any reason, such Principal
shall be increased by the amount of such rescinded or
returned distribution, as though it had not been made.
"Provisional Amortization Day" means each day that
----------------------------
would be an Amortization Day but for the proviso in clause
(i) of the definition of "Amortization Day."
"Receivable" means the indebtedness of any Obligor
----------
under a Contract to the extent that the Company has the right
to receive payment thereof either in its own right or because
the right to receive payment thereof has been (or is
purported to have been) transferred to it, and includes the
right to payment of any interest and finance charges, or
other obligations, if any, with respect thereto.
"Receivables Pool" means at any time the
----------------
aggregation of each then outstanding Receivable in respect of
which the Obligor is a Designated Obligor at such time or was
a Designated Obligor on the date of the initial creation of a
security interest in such Receivable under the Agreement.
"Related Security" means with respect to any
----------------
Receivable, all right, title and interest of the Company in:
(i) all other security interests or liens from
time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to
such Receivable or otherwise, together with all
financing statements signed by an Obligor describing any
collateral securing such Receivable; and
(ii) all guaranties, insurance and other agreements
or arrangements of whatever character from time to time
supporting or securing payment of such Receivable
whether pursuant to the Contract related to such
Receivable or otherwise.
"Settlement Period" for any Advance means each
-----------------
period commencing on the first day and ending on the last day
of each Fixed Period for such Advance, and, on and after the
Payment Date, such period (including, without limitation, a
period of one day) as shall be selected from time to time by
the Agent or, in the absence of any such selection, each
period of thirty days from the last day of the immediately
preceding Settlement Period; provided that until the Payment
--------
Date, during any Fixed Period for such Advance for which the
CAFCO Rate shall be the MTN Fixed Rate or the MTN Floating
Rate, "Settlement Period" for such Advance means each period
-----------------
of three months (or a shorter period if the last day of such
Fixed Period shall earlier occur) during such Fixed Period,
the initial Settlement Period during such Fixed Period for
such Advance commencing on the first day of such Fixed Period
and ending on the day which occurs three months from such
first day, and each subsequent Settlement Period during such
Fixed Period for such Advance commencing on the last day of
the immediately preceding Settlement Period for such Advance
and ending on the earlier of (i) the day which occurs three
months from such last day or (ii) the last day of such Fixed
Period.
"Tariff" means each of the tariffs pursuant to
------
which Ohio Edison or Penn Power shall provide electricity to
certain Obligors from time to time and pursuant to which such
Obligors shall be obligated to pay for such electricity from
time to time.
"Termination Event" shall mean (i) a Reportable
-----------------
Event described in Section 4043 of ERISA and the regulations
issued thereunder (other than a Reportable Event not subject
to the provision for 30-day notice to the PBGC under such
regulations), or (ii) the withdrawal of the Company or any
member of the Controlled Group from a Plan during a plan year
in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, or (iii) the filing of a notice
of intent to terminate a Plan or the treatment of a plan
amendment as a termination under Section 4041(c) of ERISA, or
(iv) the institution of proceedings to involuntarily
terminate a Plan by the PBGC, or (v) the appointment by the
appropriate United States District Court of a trustee to
administer a Plan, or (vi) any other event or condition which
might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to
administer, any Plan.
"Third Parties" means any Person other than the
-------------
parties to the Agreement, Ohio Edison and Penn Power.
"UCC" means the Uniform Commercial Code as from
---
time to time in effect in the specified jurisdiction.
- - - - - -
Other Terms. All accounting terms not specifically
-----------
defined herein shall be construed in accordance with
generally accepted accounting principles. All terms used in
Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in
such Article 9.
<PAGE>
EXHIBIT II
CONDITIONS OF ADVANCES
----------------------
1. Conditions Precedent to Initial Advance. The
---------------------------------------
initial Advance under the Agreement is subject to the
conditions precedent that the Agent shall have received on or
before the date of such Advance the following, each (unless
otherwise indicated) dated such date, in form and substance
satisfactory to the Agent:
(a) Certified copies of the resolutions of the
Board of Directors of the Company approving the Agreement and
certified copies of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to the Agreement;
(b) A certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true
signatures of the officers of the Company authorized to sign
the Agreement and the other documents to be delivered by it
thereunder;
(c) Certified copies of all documents evidencing
necessary corporate action and governmental approvals, if
any, with respect to Ohio Edison, including certified copies
of the resolutions of the Board of Directors of Ohio Edison
approving the Ohio Edison Agreement, the Ohio Edison
Receivables Purchase Agreement and the Collection Agent
Agreement to which Ohio Edison is a party;
(d) A certificate of the Secretary or Assistant
Secretary of Ohio Edison, certifying the names and the
signatures of the officers of Ohio Edison, authorized to sign
the Collection Agent Agreement to which Ohio Edison is a
party, the Ohio Edison Agreement and the Ohio Edison
Receivables Purchase Agreement;
(e) Acknowledgment copies of proper financing
statements (including financing statements evidencing the
transfer of Ohio Edison Receivables from Ohio Edison to the
Company), duly filed on or before the date of such initial
Advance under the UCC of all jurisdictions that the Agent may
deem necessary or desirable in order to perfect the security
interests contemplated by the Agreement;
(f) Acknowledgment copies of proper financing
statements, if any, necessary to release all security
interests and other rights of any Person (other than the
Company) in the Ohio Edison Receivables or Related Security
previously granted by the Company or Ohio Edison;
(g) Completed requests for information, dated on
or before the date of such initial Advance, listing the
financing statements referred to in subsection (e) above and
all other effective financing statements filed in the
jurisdictions referred to in subsection (e) above that name
the Company or Ohio Edison as debtor, together with copies of
such other financing statements (none of which shall cover
any Ohio Edison Receivables or Related Security);
(h) The Ohio Edison Agreement;
(i) Favorable opinions of counsel for the Company
and Ohio Edison covering the matters referred to in Annex C
hereto and such other matters as the Agent may reasonably
request;
(j) The Collection Agent Agreement to which Ohio
Edison is a party;
(k) A favorable opinion of Kaye, Scholer, Fierman,
Hays & Handler, counsel for the Agent, as the Agent may
reasonably request;
(l) A favorable opinion of Kaye, Scholer, Fierman,
Hays & Handler, counsel for the Agent, addressed to CAFCO and
the dealer for the commercial paper of CAFCO, as to the
correctness of the representation and warranty of the Company
set forth in paragraph (k) of Exhibit III, substantially in
the form previously delivered by the Agent to such counsel;
and
(m) A completed Collateral Report, dated within 10
days from the date of the initial Advance.
2. Conditions Precedent to All Advances. (a)
------------------------------------
Each Advance (including the initial Advance) shall be subject
to the further conditions precedent that on the date of such
Advance the following statements shall be true (and
acceptance of the proceeds of such Advance shall be deemed a
representation and warranty by the Company that such
statements are then true):
(i) The representations and warranties contained
in Exhibit III are correct on and as of the date of such
Advance as though made on and as of such date,
(ii) No event has occurred and is continuing, or
would result from such Advance, that constitutes a
Default or an Event of Default, and
(iii) On such date, all of Ohio Edison's long-term
public senior debt securities are rated at least BBB by
Standard & Poor's Corporation or Baa3 by Moody's
Investors Service, Inc., or, if such debt securities are
not publicly rated on such date, the Agent has
determined, in its sole discretion, that such debt
securities would receive such ratings if they were
publicly rated,
and (b) the Agent shall have received such other approvals,
opinions or documents as it may reasonably request.
3. Conditions Precedent to Initial Advance
---------------------------------------
Relating to Penn Power Receivables. The initial Advance
- ----------------------------------
under the Agreement relating to Penn Power Receivables is
subject to the conditions precedent that (i) the Agent shall
have received on or before the date of such Advance the
following, each (unless otherwise indicated) dated such date,
in form and substance satisfactory to the Agent:
(a) Certified copies of all documents evidencing
necessary corporate action and governmental approvals, if
any, with respect to Penn Power, including certified copies
of the resolutions of the Board of Directors of Penn Power
approving the Collection Agent Agreement to which it is a
party, the Penn Power Agreement and the Penn Power
Receivables Purchase Agreement;
(b) A certificate of the Secretary or Assistant
Secretary of Penn Power certifying the names and the
signatures of the officers of Penn Power authorized to sign
the Collection Agent Agreement to which it is a party, the
Penn Power Agreement and the Penn Power Receivables Purchase
Agreement;
(c) The Penn Power Agreement; and the Agreement
shall have been modified, to the extent (if any) appropriate,
to take into account the creation of the Penn Power
Agreement;
(d) Favorable opinions of counsel for Penn Power
covering the matters referred to in Annex C hereto as they
relate to Penn Power and such other matters as the Agent may
reasonably require;
(e) The Collection Agent Agreement to which Penn
Power is a party;
(f) A completed Collateral Report, dated within 10
days from the date of the initial Advance relating to Penn
Power;
(g) Acknowledgment copies of proper financing
statements (including financing statements evidencing the
transfer of Penn Power Receivables from Penn Power to the
Company), duly filed on or before the date of such initial
Advance under the UCC of all jurisdictions that the Agent may
deem necessary or desirable in order to perfect the security
interests contemplated by the Agreement;
(h) Acknowledgment copies of proper financing
statements, if any, necessary to release all security
interests and other rights of any Person (other than the
Company) in the Penn Power Receivables or Related Security
previously granted by the Company or Penn Power; and
(i) Completed requests for information dated on or
before the date of such initial Advance, listing the
financing statements referred to in subsection (g) above and
all other effective financing statements filed in the
jurisdictions referred to in subsection (g) above that name
the Company or Penn Power as debtor, together with copies of
such other financing statements (none of which shall cover
any Penn Power Receivables or Related Security);
and (ii) the Agent shall have received such other approvals,
opinions or documents as it may reasonably request.
4. Conditions Precedent to Amendment and
-------------------------------------
Restatement. This amendment and restatement of the Original
- -----------
Agreement shall become effective when, and only when, all of
the following shall have occurred:
(a) the Agent shall have received counterparts of
this amendment and restatement executed by the Company,
CAFCO, and the Agent, of an Ohio Edison Agreement in form and
substance satisfactory to the Agent executed by Ohio Edison,
and, if requested by the Agent, of an Amendment to the Ohio
Edison Receivables Purchase Agreement in form and substance
satisfactory to the Agent; and
(b) the Agent shall have additionally received all
of the following documents, each document (unless otherwise
indicated) being dated the date of receipt thereof by the
Agent (which date shall be the same for all such documents),
in form and substance satisfactory to the Agent:
(i) Certified copies of (A) the resolutions
of the Board of Directors of (x) the Company approving
this amendment and restatement (y) Ohio Edison approving
the Agreements referred to in subsection (a) above to
which Ohio Edison is a party and the matters
contemplated hereby and thereby (B) all documents
evidencing other necessary corporate action and
governmental approvals, if any, with respect to this
Amendment, such other documents, and the matters
contemplated hereby and thereby;
(ii) A certificate of the Secretary or an
Assistant Secretary of (x) the Company certifying the
names and true signatures of its officers authorized to
sign this Amendment and the other documents to be
delivered hereunder and (y) Ohio Edison certifying the
names and true signatures of its officers authorized to
sign the Agreements referred to in subsection (a) above
to which Ohio Edison is a party;
(iii) Acknowledgment copies or stamped receipt
copies of proper financing statements, duly filed under
the UCC of all jurisdictions that the Agent may deem
necessary or desirable in order to perfect the security
interests contemplated by the Agreement as amended
hereby (to the extent not previously filed);
(iv) A favorable opinion of counsel for the
Company and Ohio Edison, in form and substance
satisfactory to the Agent; and
(v) A certificate signed by a duly authorized
officer of the Company stating that:
(i) The representations and warranties
contained in Exhibit III to the Agreement are
correct on and as of the date of such certificate
as though made on and as of such date, and
(ii) No event has occurred and is
continuing which constitutes an Event of Default or
would constitute an Event of Default but for the
requirement that notice be given or time elapse or
both.
EXHIBIT III
REPRESENTATIONS AND WARRANTIES
------------------------------
The Company represents and warrants as follows:
(a) The Company is a corporation duly
incorporated, validly existing and in good standing under the
laws of Ohio. Penn Power is a corporation duly incorporated,
validly existing and in good standing under the laws of
Pennsylvania and is a wholly owned subsidiary of Ohio Edison.
(b) The execution, delivery and performance by the
Company of the Agreement and the other documents to be
delivered by it thereunder, including the Company's use of
the proceeds of Advances, are within the Company's corporate
powers, have been duly authorized by all necessary corporate
action, do not contravene (i) the Company's charter or code
of regulations, (ii) any law, rule or regulation applicable
to the Company, (iii) any contractual restriction binding on
or affecting the Company or its property or (iv) any order,
writ, judgment, award, injunction or decree binding on or
affecting the Company or its property, and do not result in
or require the creation of any lien, security interest or
other charge or encumbrance upon or with respect to any of
its properties (except as specifically contemplated by the
Agreement). The Agreement has been duly executed and
delivered by the Company.
(c) No authorization or approval or other action
by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due
execution, delivery and performance by the Company of the
Agreement or any other document to be delivered thereunder.
(d) The Agreement constitutes the legal, valid and
binding obligation of the Company enforceable against the
Company in accordance with its terms, subject, however, to
the application by a court of general principles of equity
and to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally.
(e) The consolidated balance sheets of Ohio Edison
and its consolidated subsidiaries as of December 31, 1988,
and the related statements of income and retained earnings
and cash flows of Ohio Edison and its consolidated
subsidiaries for the twelve month period then ended, each as
certified by Ohio Edison's Comptroller, copies of which have
been furnished to the Agent, fairly present the consolidated
financial condition of Ohio Edison and its consolidated
subsidiaries as of such date and the results of operations
for the respective periods covered by said statements of
income and retained earnings all in accordance with generally
accepted accounting principles consistently applied, and
since December 31, 1988, there has been no material adverse
change in any such condition or operations which, after being
made known to the Agent, has been found by the Agent to be
objectionable.
(f) There is no pending or threatened action or
proceeding affecting the Company or any of its subsidiaries
before any court, governmental agency or arbitrator which the
Company reasonably expects to materially adversely affect the
financial condition of the Company or any of its subsidiaries
or the ability of the Company to perform its obligations
under the Agreement, or which purports to affect the
legality, validity or enforceability of the Agreement.
(g) No proceeds of any Advance will be used to
acquire any equity security of a class which is registered
pursuant to Section 12 of the Securities Exchange Act of
1934.
(h) The Company is the legal and beneficial owner
of the Pool Receivables and Related Security free and clear
of any Adverse Claim; the Lenders will acquire a valid and
perfected first priority security interest in each Pool
Receivable now existing or hereafter arising and in the
Related Security and Collections with respect thereto,
subject, however, to the provisions of Section 552(a) of the
Bankruptcy Reform Act of 1978, and except that rights as to
Receivables that first arise after (i) any default in the
payment of interest by Ohio Edison on its first mortgage
bonds, so long as such default continues, or (ii) the
occurrence of a completed default specified in Section 73 of
the First Mortgage Indenture, so long as such completed
default continues, may be subject to the lien of the First
Mortgage Indenture. No Effective financing statement or
other instrument similar in effect covering any Pool
Receivable or the Related Security or Collections with
respect thereto is on file in any recording office, except
those filed in favor of the Agent relating to the Agreement.
(i) Each Collateral Report (if prepared by the
Company or one of its Affiliates, or to the extent that
information contained therein is supplied by the Company or
an Affiliate), information, exhibit, financial statement,
document, book, record or report furnished or to be furnished
at any time by or on behalf of the Company to the Agent or
CAFCO in connection with the Agreement is or will be accurate
in all material respects as of its date or (except as
otherwise disclosed to the Agent or CAFCO, as the case may
be, at such time) as of the date so furnished, and no such
document knowingly contains or will contain any untrue
statement of a material fact or knowingly omits or will omit
to state a material fact necessary in order to make the
statements contained therein, in the light of the
circumstances under which they were made, not misleading.
(j) The principal place of business and chief
executive office of the Company and the office where the
Company keeps its records concerning the Pool Receivables are
located at the address referred to in Section 4.02, and the
corresponding locations for Ohio Edison and Penn Power are 76
South Main Street, Akron, Ohio 44308 and 1 East Washington
Street, New Castle, Pennsylvania 16103, respectively; or, by
notice to the Agent in accordance with paragraph (b) of
Exhibit IV, at such other locations in jurisdictions where
all actions reasonably requested by the Agent to protect and
perfect the security interest in the Pool Receivables have
been taken and completed.
(k) The making of the Advances pursuant to the
Agreement will constitute (i) a "current transaction" within
the meaning of Section 3(a)(3) of the Securities Act of 1933,
as amended, and (ii) except for Receivables arising from DSM
Loans, an acquisition of notes, drafts, acceptances, open
accounts receivable or other obligations representing part or
all of the sales price of merchandise, insurance or services
within the meaning of Section 3(c)(5) of the Investment
Company Act of 1940, as amended.
(l) The Company is not engaged in the business of
extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System), and no
proceeds of any Advance will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(m) The Ohio Edison Receivables Purchase Agreement
is (and when executed, the Penn Power Receivables Purchase
Agreement will be) in full force and effect.
EXHIBIT IV
COVENANTS
---------
Covenants of the Company. Until the later of the
------------------------
Payment Date or the date on which no Principal of any Advance
shall be outstanding:
(a) Compliance with Laws, Etc. The Company will
--------------------------
comply in all material respects with all applicable laws,
rules, regulations and orders and preserve and maintain its
corporate existence, rights, franchises, qualifications, and
privileges except to the extent that the failure so to comply
with such laws, rules and regulations or the failure so to
preserve and maintain such existence, rights, franchises,
qualifications, and privileges would not materially adversely
affect the collectibility of the Receivables Pool or the
ability of the Company to perform its obligations under the
Agreement or the Collection Agent Agreements.
(b) Offices, Records and Books of Account. The
-------------------------------------
Company will keep its principal place of business and chief
executive office and the office where it keeps its records
concerning the Pool Receivables at the address of the Company
referred to in Section 4.02 or, upon 30 days' prior written
notice to the Agent, at any other locations in a jurisdiction
where all action required by paragraph (j) of Exhibit III
shall have been taken; and will cause Ohio Edison and Penn
Power to send 30 days' prior written notice of a change in
their respective principal place of business, Chief Executive
Office or the office where they respectively keep records
concerning Pool Receivables. The Company also will provide
for administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing
Pool Receivables in the event of the destruction of the
originals thereof), and keep and maintain, or cause to be
kept and maintained, all documents, books, records and other
information reasonably necessary or advisable for the
collection of all Pool Receivables (including, without
limitation, records adequate to permit the identification of
each Pool Receivable and all collections of and adjustments
to each existing Pool Receivable).
(c) Performance and Compliance with Contracts and
---------------------------------------------
Credit and Collection Policy. The Company will, at its
- ----------------------------
expense, require Ohio Edison and Penn Power, as Collection
Agents, to timely and fully perform and comply with all
material provisions, covenants and other promises required to
be observed by it under the Contracts related to the Pool
Receivables, and timely and fully comply in all material
respects with its Credit and Collection Policy in regard to
each Pool Receivable and the related Contract.
(d) Sales, Liens, Etc. The Company will not sell,
------------------
assign (by operation of law or otherwise) or otherwise dispose
of, or create or suffer to exist any Adverse Claim upon or with
respect to, any Pool Receivable, or any Related Security, or
Collections, or upon or with respect to any account to which any
Collections of any Pool Receivable are sent to be held as
collateral for the Lenders, or assign any right to receive income
in respect thereof.
(e) Extension or Amendment of Receivables. Except as
-------------------------------------
provided in the Collection Agent Agreements, the Company will not
extend, amend or otherwise modify the terms of any Pool
Receivable, or amend, modify or waive any term or condition of
any Contract related thereto except as required by regulatory
mandate.
(f) Chance in Business or Credit and Collection
-------------------------------------------
Policy. The Company will not make any change in the character of
- ------
its business or in the Credit and Collection Policy that would,
in either case, materially adversely affect the collectibility of
the Pool Receivables or the ability of the Company to perform its
obligations under the Agreement or the Collection Agent
Agreements, except as required by regulatory mandate.
(g) Audits. (i) The Company will, from time to time
------
during regular business hours as requested by the Agent, permit
the Agent, or its agents or representatives, (A) to examine and
make copies of and abstracts from all books, records and
documents (including, without limitation, computer tapes and
disks) in the possession or under the control of the Company
relating to Pool Receivables and the Related Security, including,
without limitation, the related Contracts, and (B) to visit the
offices and properties of the Company for the purpose of
examining such materials described in clause (A) above, and to
discuss matters relating to Pool Receivables and the Related
Security or the Company's performance hereunder with any of the
officers or employees of the Company having knowledge of such
matters.
(ii) The Lenders and the Agent each agree to maintain
the confidentiality of all information with respect to the
Company furnished or delivered to it pursuant to subsection (i)
above; provided that such information may be disclosed (A) to
--------
such party's legal counsel and auditors if they agree (whether in
writing or orally) to hold it confidential, or (B) to the extent
required by applicable law or by any court, regulatory body or
agency having jurisdiction over such party; provided further that
----------------
such party shall have no obligation of confidentiality in respect
of any information which may be generally available to the public
or becomes available to the public through no fault of such
party.
(h) Change in Payment Instructions to Obligors. The
------------------------------------------
Company will not make any change in its instructions to Obligors
regarding payments to be made pursuant to a Contract, unless the
Agent shall have received notice of such change.
(i) Reporting Requirements. The Company will provide
----------------------
to the Agent the following:
(i) as soon as available and in any event within
60 days after the end of the first three quarters of each
fiscal year of Ohio Edison, balance sheets of Ohio Edison
and its consolidated subsidiaries, if any, and of Penn
Power, as of the end of such quarter, and consolidated
statements of income and retained earnings of Ohio Edison
and its consolidated subsidiaries, if any, and statements of
income and retained earnings of Penn Power, for the period
commencing at the end of the previous fiscal year and ending
with the end of such quarter, certified by a principal
financial or accounting officer of Ohio Edison or of Penn
Power, as the case may be;
(ii as soon as available and in any event within
120 days after the end of each fiscal year of Ohio Edison, a
copy of the annual report for such year for Ohio Edison and
its subsidiaries, and for Penn Power, containing financial
statements for such year reported on by nationally
recognized independent public accountants;
(iii) as soon as possible and in any event within
five days after the occurrence of each Default or Event of
Default, a statement of the chief financial officer of the
Company setting forth details of such Default or Event of
Default and the action that the Company has taken and
proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports that Ohio Edison or Penn Power send to
their public security holders, and copies of all reports and
registration statements that Ohio Edison or any subsidiary
files with the Securities and Exchange Commission or any
national securities exchange;
(v) as soon as possible and in any event (i)
within 30 days after the Company or any member of the
Controlled Group knows or has reason to know that any
Termination Event described in clause (i) of the definition
of Termination Event with respect to any Plan has occurred
and (ii) within 10 days after the Company or any member of
the Controlled Group knows or has reason to know that any
other Termination Event with respect to any Plan has
occurred, a statement of the chief financial officer of the
Company describing such Termination Event and the action, if
any, which the Company or such member of the Controlled
Group proposes to take with respect thereto, together with a
copy of the notice of such Termination Event, if any, given
to the PBGC;
(vi) promptly and in any event within five
Business Days after receipt thereof by the Company or any
member of the Controlled Group from the PBGC, copies of each
notice received by the Company or any such member of the
Controlled Group of the PBGC's intention to involuntarily
terminate any Plan or to have a trustee appointed to
administer any Plan;
(vii) within 10 days after the due date for filing
with the PBGC pursuant to Section 412(n) of the Code of a
notice of failure to make a required installment or other
payment with respect to a Plan, a statement of the chief
financial officer of the Company setting forth the details
as to such failure and the action that the Company proposes
to take with respect thereto together with a copy of any
such notice given to the PBGC;
(viii) promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) with respect to each Plan;
(ix) promptly and in any event within five
Business Days after receipt thereof by the Company or any
member of the Controlled Group from a Multiemployer Plan, a
copy of each notice received by the Company or any member of
the Controlled Group concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA;
(x) at least ten Business Days prior to any
change in the Company's name, a notice setting forth the new
name and the effective date thereof; and
(xi) such other information respecting the
Receivables or the condition or operations, financial or
otherwise, of Ohio Edison or Penn Power or any of their
subsidiaries as the Agent may from time to time reasonably
request.
(j) First Mortgage Indenture. The Company will notify
------------------------
the Agent in writing promptly upon the occurrence of an event of
default or an event which with notice or lapse of time or both
would constitute an event of default or default under the First
Mortgage Indenture.
(k) Tangible Net Worth. The Company will at all times
------------------
maintain an excess of total tangible assets over total
liabilities of not less than $10,000,000 and, on the last
Business Day of each month, will cause such excess to be not less
than (i) $10,000,000, plus (ii) the Breakage Increment (as
calculated as of the previous Business Day) so long as all
Lenders shall have provided the Company with the information
needed to calculate the amount, plus (iii) an amount equal to the
applicable percentage set forth below of the outstanding balance
of any DSM Loan for the indicated category of the rating of the
Obligor in respect of such DSM Loan according to the Credit and
Collection Policy:
Obligor Rating Category Percentage
----------------------- ----------
A-rated 10%
B-rated 20%
C-rated 50%
unrated 100%.
(1) Working Capital. The Company will at all times
---------------
maintain an excess of current assets over current liabilities.
EXHIBIT V
EVENTS OF DEFAULT
-----------------
Each of the following shall be an "Event of Default":
(a) The Company shall fail to make any payment when
due on account of Principal or Interest; or
(b) The Company shall fail to make any payment when
due on account of any other amount owing under the Agreement and
such default shall continue unremedied for a period of five
Business Days; or
(c) The Collection Agent (if the Company or any of its
Affiliates) (i) shall fail to perform or observe any term,
covenant or agreement under the Agreement or under a Collection
Agent Agreement (other than as referred to in clause (ii) of this
paragraph (c)) and such failure shall remain unremedied for ten
calendar days after written notice thereof is provided to the
Company or (i) shall fail to make when due any payment or deposit
to be made by it under the Agreement or a Collection Agent
Agreement and such failure shall remain unremedied for ten
calendar days; or
(d) The Company shall fail to transfer to the Agent
when requested pursuant to the Agreement or a Collection Agent
Agreement, any rights which the Company then has as Collection
Agent; or
(e) Any representation or warranty made or deemed made
by the Company, or Ohio Edison or Penn Power (or any of their
respective officers) under or in connection with the Agreement,
the Original Agreement, the Ohio Edison Agreement or the Penn
Power Agreement or any information or report delivered by the
Company pursuant to the Agreement or Ohio Edison pursuant to the
Ohio Edison Agreement or Penn Power pursuant to the Penn Power
Agreement shall prove, when made or deemed made or delivered, to
have been incorrect or untrue in any respect material to the
performance by the Company, Ohio Edison or Penn Power of their
respective obligations under the Agreement, the Ohio Edison
Agreement or the Penn Power Agreement or to the legality,
validity or enforceability of the Agreement, the Ohio Edison
Agreement or the Penn Power Agreement; or
(f) The Company, Ohio Edison or Penn Power shall fail
to perform or observe any other term, covenant or agreement
contained in the Agreement, the Ohio Edison Agreement or the Penn
Power Agreement, on its part to be performed or observed and any
such failure shall remain unremedied for 30 days after written
notice thereof shall have been given to the Company, Ohio Edison
or Penn Power, as the case may be, by the Agent; or
(g) The Company, Ohio Edison or Penn Power or any of
their subsidiaries shall fail to pay any principal of or premium
or interest on any of its Debt (other than the Advances) when the
same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt;
or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be
due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment or a specified mandatory
redemption provision unrelated to a default or event of default),
prior to the stated maturity thereof; or
(h) The security interest created pursuant to the
Agreement for any reason (except pursuant to the release
provisions of Section 1.04) cease to constitute a valid and
perfected first priority security interest in each Pool
Receivable and the Related Security and Collections with respect
thereto; or
(i) The Company, Ohio Edison or Penn Power, or any of
their subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or
against the Company, Ohio Edison or Penn Power, or any of their
subsidiaries, seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee,
custodian or other similar official for or for any substantial
part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of
60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its
property) shall occur; or the Company, Ohio Edison or Penn Power,
r any of their subsidiaries, shall take any corporate action to
authorize any of the actions set forth above in this paragraph
(i); or
(j) As of the last day of any calendar month, the
Default Ratio shall exceed 7.5% and such Default Ratio shall not
be returned to no more than 7.5% by the 15th day of the
succeeding calendar month; or
(k) The Borrowing Base shall for a period of five
consecutive Business Days be less than 110% of the sum of the
aggregate outstanding Principal of all Advances and the aggregate
outstanding "Principal" of all "Advances" under the Parallel
Purchase Commitment; or
(l) There shall have occurred any event which may be
reasonably expected to materially adversely affect (x) the
collectibility of the Pool Receivables generally or (y) the
ability of the Company generally to collect Pool Receivables or
otherwise perform its obligations under the Agreement or a
Collection Agent Agreement; or
(m) Ohio Edison shall cease to own directly or
indirectly 100% of each class of voting stock of the Company; or
(n) There shall have occurred an event of default, or
an event which with lapse of time, or an event as to which notice
has been given and with lapse of time, would constitute an event
of default under the First Mortgage Indenture.
<PAGE>
EXHIBIT VI
NOTICE OF ADVANCE AND/OR CAFCO RATE
-----------------------------------
[For the MTN Fixed Rate or the MTN Floating Rate]
[Date]
Citicorp North America, Inc.,
as Agent for CAFCO
under the Agreement
referred to below.
(Address]
Ladies and Gentlemen:
The undersigned, OES Capital, Incorporated, refers to
the Receivables Financing Agreement, dated as of November 28,
1989, as amended and restated as of June 1, 1992, and as further
amended and restated as of April 23, 1993 (the "Agreement", the
terms defined therein being used herein as therein defined;
references to an index or interest rate base not otherwise
defined herein are to such index or interest rate base as defined
in CAFCO's Private Placement Memorandum, dated September 18,
1992), among the undersigned, Corporate Asset Funding Company,
Inc., and Citicorp North America, Inc., as Agent, and hereby
gives you notice, irrevocably, pursuant to Section 1.02 and 1.03
of the Agreement that the undersigned [requests an Advance under
the Agreement, and in that connection] requests that [such
Advance and] the [initial] [next succeeding] Fixed Period
therefor and the CAFCO Rate for such Fixed Period be as follows:
(i) The Business Day of the [proposed Advance and]
first day of such Fixed Period is _____________, 19__.
(ii) The amount of the [proposed Advance and] Principal
for the Advance for such Fixed Period is $__________.
(iii) The CAFCO Rate for such Fixed Period for [PAGE 2
OF DRAFT MISSING]
THE FOREGOING IS HEREBY APPROVED:
CITICORP NORTH AMERICA, INC., as Agent
By:____________________________________
Vice President
<PAGE>
ANNEX A
OES CAPITAL, INC.
COLLATERAL REPORT
Input Form
----------
Reporting Period: Month 3
Day 31
Year 93
Enter Full Dollar Amounts for All Receivables
RECEIVABLES AGING SCHEDULE
Electricity DSM
Sales Loans Total
----- ----- -----
A) Unbilled 0 0 0
B) Current to 30 Days 0 0 0
C) 31 - 60 Days 0 0 0
D) 61 - 90 Days 0 0 0
E) Over 90 Days 0 0 0
----- ----- -----
Total Receivables 0 0 0
===== ===== =====
F) D&M Loans Receivables Maturing in more than 60 months 0
G) Total Advances 0
1) Advances attributable to Electricity Sales 0
(Total Electricity Sales/Total Receivables) 0.00%
2) Advances attributable to DSM Loans 0
(Total DSM Loans/Total Receivables) 0.00%
H) Collections During Period 0
I) Working Capital Amount as of 31-Mar-93 0
J) Tangible Net Worth as of 31-Mar-93 0
K) Accrued, Unpaid Liquidation Fee (Per Agent) 0
L) Accrued Unpaid Coll. Agent Fee (Per Agent) 0
M) Assignee Rate (Per Agent) 0.00%
N) Gross Write-offs during the current period 0
<PAGE>
SPECIAL CONCENTRATION INPUT
OES CAPITAL, INC.
COLLATERAL REPORT
---------------------------------
Electricity
Sales Concentration
Obligor Name Balance Limit Excess
- ------------------------- ------- -------------- ------
Governmental Receivables 0 0 0
Potomac Electrical Power Co. 0 13,000,000 0
General Public Utilities 0 4,500,000 0
Allegheny Power System 0 12,000,000 0
General Motors 0 5,000,000 0
Warren Consolidated Ind. 0 0 0
Obligor G 0 0 0
Obligor H 0 0 0
Obligor I 0 0 0
Obligor J 0 0 0
---
Total Electricity Sales Excess Concentrations 0
===
SPECIAL CONCENTRATION INPUT
OES CAPITAL, INC.
COLLATERAL REPORT
---------------------------
DSM
Loans Concentration
Obligor Name Balance Limit Excess
- ------------------------- ------- -------------- ------
Obligor A 0 1,500,000 0
Obligor B 0 1,500,000 0
Obligor C 0 1,500,000 0
Obligor D 0 1,500,000 0
Obligor E 0 1,500,000 0
Obligor F 0 1,500,000 0
Obligor G 0 1,500,000 0
Obligor H 0 1,500,000 0
Obligor I 0 1,500,000 0
Obligor J 0 1,500,000 0
---
Total DSM Loans Excess Concentrations 0
===
<PAGE>
DSM OBLIGOR BALANCES
OES CAPITAL, INC.
COLLATERAL REPORT
--------------------
(A) (B) (C) [(B) - (C)] x (A)
Defaulted
DSM DSM Loans Tangible
Obligor Purchased By Net Worth
Category % Balance Ohio Edison Increment
- ------------- ----- ------- ------------ ---------
Category A 10.00% 0 0 0
Category B 20.00% 0 0 0
Category C 50.00% 0 0 0
Category
Unrated 100.00% 0 0 0
---
Total DSM Loans Purchased
by Ohio Edison 0 ---
===
Total Tangible Net Worth Increment 0
===
MTN Breakage Fee Calculation
(P) (F) (R) (f) (n) Breakage
Fee
--------
1) 0 0.00% 0.00% 0 0 0
2) 0 0.00% 0.00% 0 0 0
3) 0 0.00% 0.00% 0 0 0
4) 0 0.00% 0.00% 0 0 0
5) 0 0.00% 0.00% 0 0 0
--- --- ---
Total MTN Breakage Fee 0
===
P) Principal Reduction Amount
F) Original Rate of Interest
R) Highest current rate of interest
f) Maximum number of times interest payable per year
n) Number of originally scheduled settlement periods
remaining in fixed period
Section 1.11(a) If F > R, Breakage Fee =
[P x {(F - R)/f}] x [{1 - {(1 +
(R/f))-(-n)}/(R/f)
<PAGE>
OES CAPITAL, INC.
AGING SCHEDULE
----------------
Weighted Days
Days from Total Equals
Bill Date Agings ($) Agings (%) Days Factor Avg.Maturity
- --------- ---------- ---------- ----------- ------------
Unbilled 0 0.00%
Current to 30 Days 0 0.00% 15 0.00
31 - 60 Days 0 0.00% 45 0.00
61 - 90 Days 0 0.00% 75 0.00
Over 90 Days 0 0.00% 105 0.00
----- ------ -----
Total 0 0.00% 0.00
===== ====== =====
COMPLIANCE REVIEW
-----------------
(1) Total Receivables Pool 0
(2) Defaulted Receivables (Over 90 Days) 0
(3) Excess Governmental Receivables
(excess of 10% x Total Pool) 0
(4) DSM Loans Receivables Maturing in more
than 60 months 0
(5) Outstanding Balance of Eligible Receivables
[(1)-(2)-(3)-(4)] 0
(6) Balance in Excess of Concentration Limits 0
(7) Borrowing Base [(5)-(6)] 0
(8) Total Advances 0
(9) Advances Coverage Ratio [(7) / (8)] -
Must Be at Least 110% 0.00% FAILED
(10) Default Ratio [((2) + Gross Write-offs) / (1)] -
Must not exceed 7.5% 0.00% PASSED
(11) Defaulted DSM Loans purchased by Ohio
Edison by the 15th of:
April 0
(12) Proforma Default Ratio [((2) + Gross
Write-offs - (11))] Must not exceed 7.5% 0.00% PASSED
(13) Working Capital Amount (1) -
Must be Greater than $0 0 FAILED
(14) Tangible Net Worth (TNW) (J) -
Must be at Least $10,000,000 plus TNW
Increment attributable to DSM Loans (15) 0 FAILED
(15) Tangible Net Worth Requirement ($10,000,000
+ Scheduled Increment) 10,000,00
SUMMARY
-------
(16) Assignee Rate (Per Agent) - (M) 0.00%
(17) Average Maturity of Portfolio (AM) 0.00
(18) Accrued, Unpaid Liquidation Fee (Per Agent) - (K) 0
(19) MTN Breakage Fee 0
(20) Liquidation Fee [{(18) + {(16) X (8) X (AM)/360}) + (19)] 0
(21) Accrued, Unpaid Collection Agent Fee - (L) 0
(22) Collection Agent Fee [(21) + {(8) X .25% X (AM)/360)}] 0
(23) Collection of Pool Receivables During Period (H) 0
The undersigned hereby represents and warrants that this Collateral
Report is a true and accurate accounting with respect to the
Receivables Financing Agreement dated as of November 28, 1989.
OES Capital, Inc.
___________________________________________
Signature and Title
Today's Date 22-Apr-93
Reporting Date 31-Mar-93
<PAGE>
COUNTERPART NO. ______
THIS TRANSFER AND ASSIGNMENT AGREEMENT HAS BEEN MANUALLY
EXECUTED IN TWENTY-FIVE COUNTERPARTS. NO SECURITY INTEREST IN
THIS EXECUTED TRANSFER AND ASSIGNMENT AGREEMENT OR IN ANY OF
THE OE POWER CONTRACT TRUST'S RIGHTS AND INTERESTS HEREUNDER
MAY BE PERFECTED BY THE POSSESSION OF ANY SUCH COUNTERPART
OTHER THAN COUNTERPART NO. 1.
Transfer and Assignment
-----------------------
Agreement
---------
CHEMICAL BANK, a New York corporation, acting not in
its individual capacity but solely as Trustee under the OE
Power Contract Trust (the "Trust"), and OHIO EDISON COMPANY, an
Ohio corporation (the "Company"), do hereby agree as follows:
WHEREAS, the Company is entitled to receive specified
monthly payments pursuant to certain contractual arrangements
and desires to sell the right to receive such payments, up to
a total of $1,322,667 per month on or prior to June 21, 1994;
$1,280,000 per month thereafter and on or prior to March 21,
2002; and $5,341,976 per month thereafter in any one month,
during the period from June 1, 1994 to December 31, 2005; and
WHEREAS, the Trust desires to purchase the right to
receive the payments which the Company desires to sell and has
agreed to issue and sell $200,000,000 aggregate principal
amount of its 7.68% Secured Notes due October 21, 2005 (the
"Notes") in order to obtain the funds with which to make such
purchase; and
WHEREAS, concurrently with the execution of this
Agreement, the Company will deliver to the Trustee a fully
executed counterpart (which shall be designated as "Counterpart
No. 1") of the Renunciation of Payments and Assignment
Agreement, the form of which is attached hereto as Exhibit A;
and
WHEREAS, the Trust will have no recourse against the
Company for the unpaid amounts if the payments it purchases
from the Company are not paid to it and desires the Company
assign to it certain contract rights to enable it to better use
its remedies against others if such payments are not made.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements hereinafter set forth:
1. The Company hereby sells, transfers, sets over,
assigns and grants to the Trust, in exchange for the sum of
$200,000,000 (receipt of which is hereby knowledged), and the
Trust hereby purchases and accepts, the following:
Starting concurrently with the first billing by the OE
Parties (consisting of the Company and Pennsylvania
Power Company) after June 1, 1994 and thereafter until
December 31, 2005 (hereinafter called the "Payment
Period"), all right, title and interest the Company may
now have (or in the future acquire) in and to an amount
of each monthly payment to the OE Parties which is
required to be made by the APS Parties (consisting of
Monongahela Power Company, West Penn Power Company and
The Potomac Edison Company) during the Payment Period
under the Power Interchange Agreement dated as of March
18, 1987, as it may be supplemented or amended
hereafter, (the "Power Interchange Agreement") between
the OE Parties and the APS Parties, on the basis of
payments to be made by Potomac Electric Power Company
("PEPCO") to the APS Parties under Section 3.11 of the
Power Resale Agreement dated as of March 18, 1987, as
it may be supplemented or amended hereafter, (the
"Power Resale Agreement") between the APS Parties and
PEPCO, equal to the lesser of (a) $1,322,667 per month
on or prior to June 21, 1994 and $1,280,000 per month
thereafter and on or prior to March 21, 2002; and
$5,341,976 per month thereafter and (b) 86% of such
monthly payment.
2. The foregoing sale is made without representation
or warranty that the payments, the right to which has been
sold, will be made; provided, however, the Company does
represent, warrant and agree that (i) it is not in default
under either the Power Supply Agreement dated as of March 18,
1987 and supplemented as of April 28, 1987, and as it may
further be supplemented or amended hereafter, (the Power Supply
Contract) between the OE Parties and PEPCO or the Power
Interchange Agreement, (ii) it will continue to perform both
the Power Supply Agreement and the Power Interchange Agreement
in accordance with the terms thereof and (iii) it will pursue
all legal remedies available to it to enforce the performance
of the other parties to each of the Power Supply Agreement, the
Power Interchange Agreement and the Power Resale Agreement in
accordance with the terms thereof.
3. In addition to and in furtherance of the foregoing,
the Company does hereby assign, transfer, set over and grant to
the Trust the following:
All of the Company's right, title and interest in and
to the Power Supply Agreement, the Power Resale
Agreement and the Power Interchange Agreement
(collectively, the "Agreements"), insofar as the
Agreements involve the monthly reservation charges
referred to in the Power Supply Agreement, the Power
Resale Agreement and the Power Interchange Agreement,
limited, however, to (i) the monthly charges payable
between June 1, 1994 and December 31, 2005 and (ii) in
the case of any particular calendar month, 86% of the
reservation charges payable in such month up to a
maximum of $1,322,667 per month on or prior to June 21,
1994; $1,280,000 per month thereafter and on or prior
to March 21, 2002; and $5,341,976 per month thereafter.
4. This Agreement shall be governed by and construed
under the laws of the State of New York.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be duly executed.
Dated: May 20, 1994
OHIO EDISON COMPANY
By \s\ T.F. Struck, III
---------------------------------
Name: T.F. Struck, III
Title: Assistant Treasurer
CHEMICAL BANK, as Trustee
under the OE Power
Contract Trust
By \s\ T.J. Foley
---------------------------------
Name: T.J. Foley
Title: Vice President
<PAGE>
COUNTERPART NO. ______
THIS RENUNCIATION OF PAYMENTS AND ASSIGNMENT HAS BEEN MANUALLY
EXECUTED IN TWELVE COUNTERPARTS. NO SECURITY INTEREST IN THIS
RENUNCIATION OF PAYMENTS AND ASSIGNMENT OR IN ANY OF THE OE
POWER CONTRACT TRUST'S RIGHTS AND INTERESTS HEREUNDER MAY BE
PERFECTED BY THE POSSESSION OF ANY SUCH COUNTERPART OTHER THAN
COUNTERPART NO. 1.
RENUNCIATION OF PAYMENTS
------------------------
and
ASSIGNMENT
----------
OHIO EDISON COMPANY, an Ohio corporation (hereinafter
called "OE"), and MONONGAHELA POWER COMPANY, an Ohio
corporation, WEST PENN POWER COMPANY, a Pennsylvania
corporation, and THE POTOMAC EDISON COMPANY, a Maryland and
Virginia corporation, (hereinafter, collectively, called the
"APS Parties") intending to be legally bound, do hereby agree
as follows:
WHEREAS, OE and Potomac Electric Power Company, a
District of Columbia and Virginia corporation (hereinafter
called "PEPCO"), are parties to a certain Power Supply
Agreement dated as of March 18, 1987 and supplemented as of
April 28, 1987 (hereinafter, as it may further be supplemented
or amended hereafter, called the "Power Supply Agreement") by
and among themselves and Pennsylvania Power Company, a
Pennsylvania corporation (hereinafter called "Penn Power"),
pursuant to which OE and Penn Power (hereinafter, collectively,
called the "OE Parties") agree to make certain capacity and
energy available to PEPCO; and
WHEREAS, the OE Parties and the APS Parties are parties
to a certain Power Interchange Agreement dated as of March 18,
1987 (hereinafter, as it may be supplemented or amended
hereafter, called the "Power Interchange Agreement") pursuant
to which the OE Parties agree to supply certain capacity and
energy to the APS Parties in connection with the obligations of
the OE Parties under the Power Supply Agreement and the APS
Parties agree to pay the OE Parties for such capacity and
energy and to make the same available to PEPCO; and
WHEREAS, the APS Parties and PEPCO are parties to a
certain Power Resale Agreement dated as of March 18, 1987
(hereinafter, as it may be supplemented or amended hereafter,
called the "Power Resale Agreement") pursuant to which PEPCO
purchases from the APS Parties the capacity and energy supplied
to the APS Parties by the OE Parties pursuant to the Power
Interchange Agreement; and
WHEREAS, the Power Supply Agreement presently calls for
a monthly reservation charge of $7,112,250 through December 31,
1998, and thereafter, through December 31, 2005, of
$10,262,250, subject to adjustment as provided therein (such
monthly reservation charges being hereinafter called the
"Monthly Reservation Charges"); and
WHEREAS, Section 3.11 of the Power Resale Agreement
requires PEPCO to pay the Monthly Reservation Charges to the
APS Parties and the Power Interchange Agreement requires the
APS Parties to in turn pay the Monthly Reservation Charges to
the OE Parties; and
WHEREAS, based on the obligations under the Power
Supply Agreement of OE and Penn Power as between themselves, OE
is presently entitled to receive 86% of each Monthly
Reservation Charge payable by the APS Parties to the OE
Parties; and
WHEREAS, OE desires to relinquish all of its right,
title and interest, both legal and equitable, in and to, and
assign to the OE Power Contract Trust (hereinafter called the
"Trust") the right to receive, a specified amount of each
Monthly Reservation Charge payable by the APS Parties to the OE
Parties after June 1, 1994 and before December 31, 2005 if (but
only if) the APS Parties agree to pay such specified amount
directly to the Trust.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements hereinafter set forth:
1. Starting concurrently with the first billing by the
OE Parties after October 1, 1994 and thereafter until
June 30, 2002 (hereinafter called the "Payment Period"), OE
hereby assigns, sets over, transfers and grants to the Trust,
and by these presents renounces all right, title and interest
it may now have (or in the future acquire) in and to, an amount
of each monthly payment to the OE Parties which is required to
be made by the APS Parties during the Payment Period under the
Power Interchange Agreement, on the basis of payments to be
made by PEPCO to the APS Parties under Section 3.11 of the
Power Resale Agreement, equal to the lesser of (a) $1,322,677
per month on or prior to June 21, 1994; $1,280,000 per month
thereafter and on or prior to March 21, 2002; and $5,341,976
per month thereafter and (b) 86% of such monthly payment and
declares that it is its intent and purpose to divest itself of
all legal and equitable interest therein forever and without
exception. To this end, OE hereby acknowledges and agrees that
failure of the Trust to receive the payments assigned to it
hereunder will not constitute a sufficient reason for OE to
refuse or fail to perform its obligations under the Power
Supply Agreement or the Power Interchange Agreement. As
between OE and the Trust, the Trust and not OE shall be the
sole party in interest to enforce this Agreement.
2. The APS Parties shall be entitled to assume for all
purposes that, as between OE and Penn Power, the payments in
and to which OE has renounced its right, title and interest
represent amounts that OE would have been entitled to receive
had they been paid to the OE Parties and the APS Parties shall
have no liability to Penn Power for not having paid the same to
the OE Parties.
3. The APS Parties hereby agree to pay the amount
specified in Section 1 hereof to the Trust each month during
the Payment Period; provided, however, that in no event shall
the amount required to be paid to the Trust by the APS Parties
hereunder in any particular month, when added to the amounts
otherwise payable to the OE Parties by the APS Parties in such
month under the Power Interchange Agreement, exceed the amount
that would be required to be paid to the OE Parties by the APS
Parties in such month under Section 3.6 of the Power
Interchange Agreement in the absence of this Agreement. Each
such payment shall be made on the date specified in the Power
Interchange Agreement as the date on which regular monthly
charges thereunder are to be paid and shall be made by wire
transfer as specified in written instructions given from time
to time by the trustee under the Trust to the APS Parties. All
amounts payable under the Power Interchange Agreement to the OE
Parties by the APS Parties in excess of the amounts that the
APS Parties hereby agree to pay to the Trust shall be paid
directly to the OE Parties as provided in the Power Interchange
Agreement. Payments by the APS Parties to the Trust as
contemplated herein shall be deemed, for purposes of the Power
Interchange Agreement, to be payments thereunder to the OE
Parties.
4. The parties hereto agree that the Trust is a third
party beneficiary of this Agreement and shall be entitled to
enforce the provisions hereof in its own name and right. This
Agreement may not be amended in any way or assigned without the
written consent of the Trust, and in the case of an assignment,
the written consent of the non-assigning parties.
5. This Agreement shall be governed by and construed
under the laws of the State of New York.
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be duly executed.
Dated: May 20, 1994
OHIO EDISON COMPANY
By \s\ T.F. Struck, II
---------------------------
Name: T.F. Struck, II
Title: Assistant Treasurer
MONONGAHELA POWER COMPANY*
WEST PENN POWER COMPANY*
THE POTOMAC EDISON COMPANY*
*By \s\ Nancy H. Gormley
--------------------------
Name: Nancy H. Gormley
Title: Counsel
Concurred In and Approved:
PENNSYLVANIA POWER COMPANY
By\s\ Robert P. Wushinske
- -------------------------
Robert P. Wushinske
Vice President and Treasurer
<PAGE>
COUNTERPART NO. ______
THIS TRANSFER AND ASSIGNMENT AGREEMENT HAS BEEN MANUALLY
EXECUTED IN FIFTEEN COUNTERPARTS. NO SECURITY INTEREST IN THIS
EXECUTED TRANSFER AND ASSIGNMENT AGREEMENT OR IN ANY OF THE OE
POWER CONTRACT TRUST'S RIGHTS AND INTERESTS HEREUNDER MAY BE
PERFECTED BY THE POSSESSION OF ANY SUCH COUNTERPART OTHER THAN
COUNTERPART NO. 1.
Transfer and Assignment
-----------------------
Agreement
---------
CHEMICAL BANK, a New York corporation, acting not in
its individual capacity but solely as Trustee under the OE
Power Contract Trust (the "Trust"), and OHIO EDISON COMPANY, an
Ohio corporation (the "Company"), do hereby agree as follows:
WHEREAS, the Company is entitled to receive specified
monthly payments pursuant to certain contractual arrangements
and desires to sell the right to receive such payments, up to
a total of $158,600 per month on or prior to October 21, 1994
and $1,191,860 per month thereafter from November 21, 1994 to
June 30, 2002; and
WHEREAS, the Trust desires to purchase the right to
receive the payments which the Company desires to sell and has
agreed to issue and sell $80,000,000 aggregate principal amount
of its 7.93% Secured Notes due March 21, 2002 (the "Notes") in
order to obtain the funds with which to make such purchase; and
WHEREAS, concurrently with the execution of this
Agreement, the Company will deliver to the Trustee a fully
executed counterpart (which shall be designated as "Counterpart
No. 1") of the Renunciation of Payments and Assignment
Agreement, the form of which is attached hereto as Exhibit A;
and
WHEREAS, the Trust will have no recourse against the
Company for the unpaid amounts if the payments it purchases
from the Company are not paid to it and desires the Company
assign to it certain contract rights to enable it to better use
its remedies against others if such payments are not made.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements hereinafter set forth:
1. The Company hereby sells, transfers, sets over,
assigns and grants to the Trust, in exchange for the sum of
$80,000,000 (receipt of which is hereby knowledged), and the
Trust hereby purchases and accepts, the following:
Starting concurrently with the first billing by the OE
Parties (consisting of the Company and Pennsylvania
Power Company) after October 1, 1994 and thereafter
until June 30, 2002 (hereinafter called the "Payment
Period"), all right, title and interest the Company may
now have (or in the future acquire) in and to an amount
of each monthly payment to the OE Parties which is
required to be made by the APS Parties (consisting of
Monongahela Power Company, West Penn Power Company and
The Potomac Edison Company) during the Payment Period
under the Power Interchange Agreement dated as of March
18, 1987, as it may be supplemented or amended
hereafter, (the "Power Interchange Agreement") between
the OE Parties and the APS Parties, on the basis of
payments to be made by Potomac Electric Power Company
("PEPCO") to the APS Parties under Section 3.11 of the
Power Resale Agreement dated as of March 18, 1987, as
it may be supplemented or amended hereafter, (the
"Power Resale Agreement") between the APS Parties and
PEPCO, equal to the lesser of (a) $158,600 per month on
or prior to October 21, 1994 and $1,191,860 per month
thereafter until June 30, 2002; and (b) 86% of such
monthly payment.
2. The foregoing sale is made without representation
or warranty that the payments, the right to which has been
sold, will be made; provided, however, the Company does
represent, warrant and agree that (i) it is not in default
under either the Power Supply Agreement dated as of March 18,
1987 and supplemented as of April 28, 1987, and as it may
further be supplemented or amended hereafter, (the Power Supply
Contract) between the OE Parties and PEPCO or the Power
Interchange Agreement, (ii) it will continue to perform both
the Power Supply Agreement and the Power Interchange Agreement
in accordance with the terms thereof and (iii) it will pursue
all legal remedies available to it to enforce the performance
of the other parties to each of the Power Supply Agreement, the
Power Interchange Agreement and the Power Resale Agreement in
accordance with the terms thereof.
3. In addition to and in furtherance of the foregoing,
the Company does hereby assign, transfer, set over and grant to
the Trust the following:
All of the Company's right, title and interest in and
to the Power Supply Agreement, the Power Resale
Agreement and the Power Interchange Agreement
(collectively, the "Agreements"), insofar as the
Agreements involve the monthly reservation charges
referred to in the Power Supply Agreement, the Power
Resale Agreement and the Power Interchange Agreement,
limited, however, to (i) the monthly charges payable
between October 1, 1994 and June 30, 2002 and (ii) in
the case of any particular calendar month, 86% of the
reservation charges payable in such month up to a
maximum of $158,600 per month on or prior to October
21, 1994 and $1,191,860 per month thereafter until June
30, 2002.
4. This Agreement shall be governed by and construed
under the laws of the State of New York.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be duly executed.
Dated: October 12, 1994
OHIO EDISON COMPANY
By \s\ T.F. Struck, II
---------------------------
Name: T.F. Struck, II
Title: Assistant Treasurer
CHEMICAL BANK, as Trustee
under the OE Power
Contract Trust
By \s\ T.J. Foley
---------------------------
Name: T.J. Foley
Title: Vice President
<PAGE>
COUNTERPART NO. ______
THIS RENUNCIATION OF PAYMENTS AND ASSIGNMENT HAS BEEN MANUALLY
EXECUTED IN FIFTEEN COUNTERPARTS. NO SECURITY INTEREST IN THIS
RENUNCIATION OF PAYMENTS AND ASSIGNMENT OR IN ANY OF THE OE
POWER CONTRACT TRUST'S RIGHTS AND INTERESTS HEREUNDER MAY BE
PERFECTED BY THE POSSESSION OF ANY SUCH COUNTERPART OTHER THAN
COUNTERPART NO. 1.
RENUNCIATION OF PAYMENTS
------------------------
and
ASSIGNMENT
----------
OHIO EDISON COMPANY, an Ohio corporation (hereinafter
called "OE"), and MONONGAHELA POWER COMPANY, an Ohio
corporation, WEST PENN POWER COMPANY, a Pennsylvania
corporation, and THE POTOMAC EDISON COMPANY, a Maryland and
Virginia corporation, (hereinafter, collectively, called the
"APS Parties") intending to be legally bound, do hereby agree
as follows:
WHEREAS, OE and Potomac Electric Power Company, a
District of Columbia and Virginia corporation (hereinafter
called "PEPCO"), are parties to a certain Power Supply
Agreement dated as of March 18, 1987 and supplemented as of
April 28, 1987 (hereinafter, as it may further be supplemented
or amended hereafter, called the "Power Supply Agreement") by
and among themselves and Pennsylvania Power Company, a
Pennsylvania corporation (hereinafter called "Penn Power"),
pursuant to which OE and Penn Power (hereinafter, collectively,
called the "OE Parties") agree to make certain capacity and
energy available to PEPCO; and
WHEREAS, the OE Parties and the APS Parties are parties
to a certain Power Interchange Agreement dated as of March 18,
1987 (hereinafter, as it may be supplemented or amended
hereafter, called the "Power Interchange Agreement") pursuant
to which the OE Parties agree to supply certain capacity and
energy to the APS Parties in connection with the obligations of
the OE Parties under the Power Supply Agreement and the APS
Parties agree to pay the OE Parties for such capacity and
energy and to make the same available to PEPCO; and
WHEREAS, the APS Parties and PEPCO are parties to a
certain Power Resale Agreement dated as of March 18, 1987
(hereinafter, as it may be supplemented or amended hereafter,
called the "Power Resale Agreement") pursuant to which PEPCO
purchases from the APS Parties the capacity and energy supplied
to the APS Parties by the OE Parties pursuant to the Power
Interchange Agreement; and
WHEREAS, the Power Supply Agreement presently calls for
a monthly reservation charge of $7,112,250 through December 31,
1998, and thereafter, through December 31, 2005, of
$10,262,250, subject to adjustment as provided therein (such
monthly reservation charges being hereinafter called the
"Monthly Reservation Charges"); and
WHEREAS, Section 3.11 of the Power Resale Agreement
requires PEPCO to pay the Monthly Reservation Charges to the
APS Parties and the Power Interchange Agreement requires the
APS Parties to in turn pay the Monthly Reservation Charges to
the OE Parties; and
WHEREAS, based on the obligations under the Power
Supply Agreement of OE and Penn Power as between themselves, OE
is presently entitled to receive 86% of each Monthly
Reservation Charge payable by the APS Parties to the OE
Parties; and
WHEREAS, OE desires to relinquish all of its right,
title and interest, both legal and equitable, in and to, and
assign to the OE Power Contract Trust (hereinafter called the
"Trust") the right to receive, a specified amount of each
Monthly Reservation Charge payable by the APS Parties to the OE
Parties after October 1, 1994 and until June 30, 2002 if (but
only if) the APS Parties agree to pay such specified amount
directly to the Trust.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements hereinafter set forth:
1. Starting concurrently with the first billing by the
OE Parties after October 1, 1994 and thereafter until
June 30, 2002 (hereinafter called the "Payment Period"), OE
hereby assigns, sets over, transfers and grants to the Trust,
and by these presents renounces all right, title and interest
it may now have (or in the future acquire) in and to, an amount
of each monthly payment to the OE Parties which is required to
be made by the APS Parties during the Payment Period under the
Power Interchange Agreement, on the basis of payments to be
made by PEPCO to the APS Parties under Section 3.11 of the
Power Resale Agreement, equal to the lesser of (a) $158,600 per
month on or prior to October 21, 1994 and $1,191,860 per month
thereafter from November 21, 1994 to June 30, 2002; and (b) 86%
of such monthly payment and declares that it is its intent and
purpose to divest itself of all legal and equitable interest
therein forever and without exception. To this end, OE hereby
acknowledges and agrees that failure of the Trust to receive
the payments assigned to it hereunder will not constitute a
sufficient reason for OE to refuse or fail to perform its
obligations under the Power Supply Agreement or the Power
Interchange Agreement. As between OE and the Trust, the Trust
and not OE shall be the sole party in interest to enforce this
Agreement.
2. The APS Parties shall be entitled to assume for all
purposes that, as between OE and Penn Power, the payments in
and to which OE has renounced its right, title and interest
represent amounts that OE would have been entitled to receive
had they been paid to the OE Parties and the APS Parties shall
have no liability to Penn Power for not having paid the same to
the OE Parties.
3. The APS Parties hereby agree to pay the amount
specified in Section 1 hereof to the Trust each month during
the Payment Period; provided, however, that in no event shall
the amount required to be paid to the Trust by the APS Parties
hereunder in any particular month, when added to the amounts
otherwise payable to the OE Parties by the APS Parties in such
month under the Power Interchange Agreement, exceed the amount
that would be required to be paid to the OE Parties by the APS
Parties in such month under Section 3.6 of the Power
Interchange Agreement in the absence of this Agreement. Each
such payment shall be made on the date specified in the Power
Interchange Agreement as the date on which regular monthly
charges thereunder are to be paid and shall be made by wire
transfer as specified in written instructions given from time
to time by the trustee under the Trust to the APS Parties. All
amounts payable under the Power Interchange Agreement to the OE
Parties by the APS Parties in excess of the amounts that the
APS Parties hereby agree to pay to the Trust or which the APS
parties have agreed to pay the Trust under the Renunciation of
Payments and Assignments dated January 4, 1991 and May 20, 1994
between OE and the APS Parties shall be paid directly to the
OE Parties as provided in the Power Interchange Agreement.
Payments by the APS Parties to the Trust as contemplated herein
shall be deemed, for purposes of the Power Interchange
Agreement, to be payments thereunder to the OE Parties.
4. The parties hereto agree that the Trust is a third
party beneficiary of this Agreement and shall be entitled to
enforce the provisions hereof in its own name and right. This
Agreement may not be amended in any way or assigned without the
written consent of the Trust, and in the case of an assignment,
the written consent of the non-assigning parties.
5. This Agreement shall be governed by and construed
under the laws of the State of New York.
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be duly executed.
Dated: October 12, 1994
OHIO EDISON COMPANY
By \s\ T.F. Struck II
------------------------------
Name: T.F. Struck II
Title: Assistant Treasurer
MONONGAHELA POWER COMPANY*
WEST PENN POWER COMPANY*
THE POTOMAC EDISON COMPANY*
*By \s\ Nancy H. Gormley
-----------------------------
Name: Nancy H. Gormley
Title: Counsel
Concurred In and Approved:
PENNSYLVANIA POWER COMPANY
By\s\ Robert P. Wushinske
-------------------------
Robert P. Wushinske
Vice President and Treasurer
I.C.1
-----
___________________________________________________
___________________________________________________
AMENDMENT NO. 5
dated as of September 30, 1994
to
PARTICIPATION AGREEMENT
dated as of September 15, 1987, as
corrected and restated
and amended by the Amendment No. 1 thereto
dated as of February 1, 1988,
Amendment No. 3 thereto
dated as of March 16, 1988, and
Amendment No. 4 thereto dated as of
November 5, 1992
among
BEAVER VALLEY TWO PI LIMITED PARTNERSHIP,
as Owner Participant
BVPS FUNDING CORPORATION,
BVPS II FUNDING CORPORATION,
THE FIRST NATIONAL BANK OF BOSTON,
in its individual capacity and
as Owner Trustee under a Trust Agreement
dated as of September 15, 1987,
as corrected and restated
with the Owner Participant,
THE BANK OF NEW YORK,
as Indenture Trustee
and OHIO EDISON COMPANY,
as Lessee
___________________________________________________
___________________________________________________
<PAGE>
THIS AMENDMENT NO. 5 dated as of September 30,
1994 ("Amendment No. 5") to the Participation Agreement
-------------------
dated as of September 15, 1987, as corrected and restated
and as amended by Amendment No. 1 thereto dated as of
February 1, 1988, Amendment No. 3 dated as of March 16,
1988, and Amendment No. 4 dated as of November 5, 1992 and
as in effect on the date hereof (the "Participation
-------------
Agreement")1/, among the Owner Participant identified on
- ---------
the cover page hereof (the "Owner Participant"), BVPS
-----------------
FUNDING CORPORATION, a Delaware corporation ("Funding
-------
Corporation"), BVPS II FUNDING CORPORATION, a Delaware
corporation ("New Funding Corporation"), THE FIRST NATIONAL
-----------------------
BANK OF BOSTON, a national banking association, in its
individual capacity ("FNB") and as Owner Trustee (the
---
"Owner Trustee") under a Trust Agreement, dated as of
-------------
September 15, 1987, as corrected and restated with the
Owner Participant, THE BANK OF NEW YORK (formerly Irving
Trust Company), a New York banking corporation, in its
individual capacity ("Bank of New York") and as Indenture
----------------
Trustee (the "Indenture Trustee") under a Trust Indenture,
-----------------
Mortgage, Security Agreement and Assignment of Facility
Lease, dated as of September 15, 1987, as corrected and
restated and as supplemented and amended by the
Supplemental Indenture No. 1, dated as of February 1, 1988,
and Supplemental Indenture No. 2 dated as of November 1,
1992 (the "Indenture"), with the Owner Trustee, and OHIO
---------
EDISON COMPANY, an Ohio corporation (the "Lessee"),
------
W I T N E S S E T H:
WHEREAS, the Owner Participant, Funding
Corporation, New Funding Corporation, the Owner Trustee,
the Indenture Trustee and the Lessee have previously
entered into the Participation Agreement; and
WHEREAS, Funding Corporation desires to cease to
be a party to the Participation Agreement; and
- -------------------
1. Amendment No. 2, a copy of which is dated as of
March 15, 1988, to the Participation Agreement was not
entered into or executed by the parties.
WHEREAS, Section 3(d) of the Facility Lease
provides for an adjustment to Basic Rent and to the
schedules of Casualty Values, Special Casualty Values and
Modified Special Casualty Values in order to preserve the
Net Economic Return of the Owner Participant in the event,
among other things, of any Tax Rate Change occurring prior
to the twentieth anniversary of the Closing Date, which
results in the change in the Tax Rate from the rate assumed
in the Pricing Assumptions as in effect on the Closing
Date; and
WHEREAS, Section 2(e) of the Participation
Agreement provides that, subject to the satisfaction of the
conditions set forth in Sections 2(d) and 11(c) of the
Participation Agreement, the Lessee and the Lessor shall
reoptimize the amortization schedules for the Outstanding
Fixed Rate Notes, in accordance with and in the manner
contemplated by Section 3(f) of the Facility Lease, upon
the occurrence of a Tax Rate Adjustment; and
WHEREAS, Section 11(b)(1) of the Code, as amended
by the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-
66), generally effective for tax years beginning on or
after January 1, 1993, increases the Tax Rate assumed to be
applicable to the Owner Participant in the Pricing
Assumptions from 34% to 35%; and
WHEREAS, Section 10.2(ii) of the Indenture
provides, among other things, that, upon receipt of a
written instruction from the Lessee and the Owner Trustee,
the Indenture Trustee shall consent to certain amendments
to the Facility Lease; and
WHEREAS, the Owner Trustee and the Lessee intend
to execute Amendment No. 3 to the Facility Lease, dated as
of September 30, 1994 ("Lease Amendment No. 3"), to amend
---------------------
certain provisions thereof, Appendix A thereto and certain
schedules thereof; and
WHEREAS, in order to carry out the provisions of
Section 2(e) of the Participation Agreement and such
Section 3(d) of the Facility Lease, the Owner Participant,
Funding Corporation, New Funding Corporation, the Owner
Trustee, the Indenture Trustee and the Lessee wish to amend
the Participation Agreement to establish and preserve the
pricing file, which incorporates the Amended Assumptions
and the new 35% Tax Rate and other assumptions, created by
the Owner Participant in connection with the Tax Rate
Change, and reoptimize the amortization schedules for the
Outstanding Fixed Rate Notes by entering into this
Amendment No. 5.
<PAGE>
NOW THEREFORE, in consideration of the premises
and of other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
SECTION 1. Definitions.
Except as otherwise amended or defined herein and
in the recitals, capitalized terms used herein shall have
the respective meanings assigned to such terms in Appendix
A to the Participation Agreement.
SECTION 2. Amendments.
(a) Section 2(c) Releveraging. Section 2(c) of
-------------------------
the Participation Agreement is amended by inserting in the
ninth line thereof after the phrase "Net Economic Return"
and before the period the following phrase:
"; provided that in order to determine the amount
--------
of the non-recourse loans to the Lessor the Owner
Participant will prepare a pricing file which preserves Net
Economic Return and incorporates all of the Amended
Assumptions and the Tax Rate Assumptions".
(b) Section 2(d) Refunding of Notes. Section
-------------------------------
2(d) of the Participation Agreement is amended by inserting
before the end of the penultimate sentence thereof after
the phrase "Net Economic Return" the following phrase:
"; provided that in order to determine the
--------
foregoing the Owner Participant will prepare a pricing file
which preserves Net Economic Return and incorporates all of
the Amended Assumptions and the Tax Rate Assumptions".
(c) Section 10(b)(3)(ix) Financial Support. The
--------------------------------------
second sentence of the third paragraph of Section
10(b)(3)(ix) of the Participation Agreement is amended by
deleting the phrase ", then within 120 days following the
receipt by the Lessee of the Notice of such fact from the
Owner Participant, the Lessee shall replace such Letter of
Credit with one issued by an Eligible Bank" and inserting
in lieu thereof before the period the following phrase:
"("Rating Reduction"), then the Lessee shall
within 10 days following the earlier of (a) its
becoming aware of such Rating Reduction or (b)
its receiving notice thereof from such Issuing
Bank, give each Beneficiary notice of such Rating
Reduction. After a Rating Reduction and no later
than 120 days following receipt by the Lessee of
a request from any Beneficiary, the Lessee shall
replace such Letter of Credit with one issued by
an Eligible Bank".
(d) Section 18 Notices, etc. Section 18(iv) of
------------------------
the Participation Agreement is amended by inserting at the
end thereof before the semicolon after the phrase
"Attention: President" the following phrase:
"and if to New Funding Corporation, at c/o J.H.
Management Corp., P.O. Box 4024, Boston,
Massachusetts 02101-4024, Attention: Nancy D.
Smith, President".
(e) Appendix A. Appendix A to the Participation
----------
Agreement is amended as follows:
(i) by amending the last proviso of the
definition of "Eligible Bank" to read in its entirety
as follows:
"provided, however, that such Letter of Credit
--------
Bank shall cease to be an Eligible Bank 120 days following
a request from any Beneficiary to the Lessee to replace
such Letter of Credit Bank due to a Rating Reduction during
the Eligible Period."
(ii) by restating the definition of "Funding
Corporation" to read as follows:
"'Funding Corporation' shall mean, as of the
Effective Date of Amendment No. 4 to the
Participation Agreement, New Funding
Corporation."
(iii) by amending the third full paragraph of the
definition of "Net Economic Return" by deleting the
-------------------
phrase "New Fixed Rate Notes" before the end thereof and
inserting in lieu thereof the phrase "Fixed Rate Notes
issued pursuant to Supplemental Indenture No. 2".
(iv) by inserting in the appropriate alphabetical
order the following new definitions:
"'Amendment No. 5 to the Participation Agreement'
shall mean Amendment No. 5, dated as of September
30, 1994, to the Participation Agreement, among
the Owner Participant, Funding Corporation, New
Funding Corporation, the Owner Trustee, the
Indenture Trustee and the Lessee."
"'Rating Reduction' shall have the meaning set
forth in Section 10(b)(3)(ix) of the
Participation Agreement."
"'Supplemental Indenture No. 2' shall mean the
Supplemental Indenture No. 2, dated as of
November 1, 1992, to the Indenture, between the
Owner Trustee and the Indenture Trustee."
"'Tax Rate Adjustment Date' shall have the
meaning assigned to such term in Section 4 of
Amendment No. 5 to the Participation Agreement."
"'Tax Rate Assumptions' shall mean the tax rate
change assumptions set forth on Schedule 1 to
Amendment No. 5 to the Participation Agreement."
"'Tax Rate Change Transaction Expenses' shall
mean the amount assigned to such term in Schedule
1 to Amendment No. 5 to the Participation
Agreement."
(f) Parties In Interest. The parties agree that
-------------------
Funding Corporation shall cease to be a party to the
Participation Agreement and shall have no further rights,
obligations or interest, except as otherwise provided in
Section 13 of the Participation Agreement, thereunder. The
Participation Agreement is hereby amended generally so that
all references to Funding Corporation shall be deemed to
refer to New Funding Corporation, to the extent that such
references relate to the rights, obligations or interest of
Funding Corporation subsequent to the Effective Date of
Amendment No. 4 to Participation Agreement.
SECTION 3. Implementation.
(a) Forms. The forms of Lease Amendment No. 3
-----
and the Reimbursement Agreement among the Lessee, OES
Finance Incorporated and Societe Generale (the
"Reimbursement Agreement") are attached hereto as Exhibits
-----------------------
A and B, respectively, and the reoptimized amortization
schedules for the Outstanding Fixed Rate Notes are attached
hereto as Exhibits C-1, C-2 and C-3, respectively.
(b) Request by the Owner Participant. In
--------------------------------
accordance with Section 2.01 of the Trust Agreement subject
to the terms and conditions of Section 11(c) of the
Participation Agreement, the Owner Participant hereby
directs that the Owner Trustee (i) execute and deliver this
Amendment No. 5 and Lease Amendment No. 3 (collectively,
the "1994 Amendments"), (ii) execute and deliver all other
---------------
agreements, instruments and certificates contemplated by
the Transaction Documents and the 1994 Amendments, (iii)
instruct the Indenture Trustee to (x) consent to Lease
Amendment No. 3 and (y) attach the reoptimized amortization
schedules (attached hereto as Exhibits C-1, C-2 and C-3)
for the Outstanding Fixed Rate Notes in place of the
existing amortization schedules to such Fixed Rate Notes
and (iv) subject to the terms of the Trust Agreement, to
take such other action in connection with the foregoing as
the Owner Participant may from time to time direct.
<PAGE>
(c) Instruction and Consent. In accordance with
-----------------------
Section 10.2(ii) of the Indenture, the Lessee and the Owner
Trustee hereby instruct the Indenture Trustee to consent to
Lease Amendment No. 3 and the Indenture Trustee hereby so
consents.
(d) Consent of Lessee. In accordance with
-----------------
Section 8(b)(2) of the Participation Agreement, the Lessee
hereby consents to the revised amortization schedules
(attached hereto as Exhibits C-1, C-2 and C-3) to the
respective Outstanding Fixed Rate Notes in connection with
the Tax Rate Change.
(e) Recordations and Filings. The Lessee agrees
------------------------
that it will cause to be made the recordations and filings
set forth in Schedule 2 hereto and that such recordations
and filings are all of the recordations and filings that
are necessary in order to preserve, protect and perfect the
Owner Trustee's rights and interests under the Facility
Lease, as amended by Amendment Nos. 1, 2, and 3 thereto,
and the first and prior security interest of the Indenture
Trustee in the Lease Indenture Estate under the Indenture,
as amended.
SECTION 4. Conditions To Effectiveness.
This Amendment No. 5 shall become effective as of
the date first above written if: (a) it shall have been
duly executed and delivered by all of the parties hereto
and all of the conditions set forth below in this Section 4
shall have been satisfied (the date of such satisfaction
being referred to as the "Tax Rate Adjustment Date"); (b)
------------------------
the Owner Participant shall have received a duly executed
and delivered, legal, valid, and binding Lease Amendment
No. 3 and Amendment No. 2 to the Tax Indemnification
Agreement, as corrected, restated and amended heretofore
("TIA Amendment No. 2"); (c) the Owner Participant shall
have received the replacement Letter of Credit having
Maximum Drawing Amounts (as defined in the Letter of
Credit) corresponding to the Modified Special Casualty
Values, as adjusted on the date hereof, from Societe
Generale, in substantially the form of Exhibit A to the
Reimbursement Agreement, in replacement of the existing
Letter of Credit issued by Barclays Bank, PLC; (d) the
Owner Participant shall have received opinions from Owner
Participant's Special Tax Counsel, Lessee's Senior
Attorney, Lessee's Special Counsel, Lessee's NRC Counsel,
special counsel and special French counsel to Societe
Generale and such other opinions as the Owner Participant
shall reasonably request and all such opinions shall be in
form and substance satisfactory to the Owner Participant;
(e) no Default, Event of Default, Event of Loss, Deemed
Loss Event, Reimbursement Default, Reimbursement Event of
Default, Indenture Default or Indenture Event of Default
shall have occurred and be continuing; and (f) subject to
the satisfaction of any and all other conditions set forth
in Sections 2(d) and 11(c) of the Participation Agreement.
SECTION 5. Expenses.
(a) On the Tax Rate Adjustment Date, (i) the
costs and expenses of the Owner Participant (including, but
not limited to, Owner Participant's computer lease analysis
expenses, out-of-pocket expenses and legal fees and
disbursements of the Owner Participant's counsel, including
counsel for each Partner of the Owner Participant, and any
financial advisors employed by it) as well as the fees and
expenses (including, but not limited to, all computer lease
analysis and travel related costs) of the Owner Trustee,
the Indenture Trustee, the Collateral Trust Trustee,
Funding Corporation, New Funding Corporation and the
Issuing Bank with respect to the negotiation, execution and
delivery of this Amendment No. 5, Lease Amendment No. 3,
TIA Amendment No. 2, the replacement Letter of Credit, the
transactions contemplated herein and therein and all other
agreements, documents or instruments prepared in connection
therewith and all fees, taxes, expenses and disbursements
incurred by such parties, including, but not limited to,
legal fees and disbursements of their counsel, in
connection with the transactions contemplated hereby and
thereby and (ii) all stenographic, printing, reproduction,
and other out-of-pocket expenses (other than investment
banking or brokerage fees) incurred in connection with the
execution and delivery of this Amendment No. 5, Lease
Amendment No. 3, TIA Amendment No. 2, the replacement
Letter of Credit and all other agreements, documents or
instruments prepared in connection therewith (collectively,
the "Tax Rate Change Transaction Expenses") shall be paid
------------------------------------
by the Lessee, on behalf of the Owner Trustee, as
Supplemental Rent in accordance with the provisions of this
Section 5, Section 20 of the Facility Lease and Sections
14(b)(2)(b) and (g) of the Participation Agreement.
(b) Notwithstanding anything in this Section 5
or in Section 14 of the Participation Agreement to the
contrary, (i) in the event the transactions contemplated by
this Amendment No. 5 shall not be consummated for any
reason, the Lessee shall pay or cause to be paid, and shall
indemnify and hold harmless the Indenture Trustee, the
Collateral Trust Trustee, the Owner Trustee, the Owner
Participant, Funding Corporation and New Funding
Corporation in respect of all Tax Rate Change Transaction
Expenses and (ii) in any event, the Lessee shall pay or
cause to be paid directly (and not as Supplemental Rent)
that portion of the Tax Rate Change Transaction Expenses
which exceeds the Tax Rate Change Transaction Expenses
payable by the Owner Trustee pursuant to clause (a) above
and as indicated on Schedule 1 hereto and shall indemnify
and hold the Lessor and the Owner Participant harmless for
any such amounts.
SECTION 6. Miscellaneous.
(a) Execution. This Amendment No. 5 may be
---------
executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which,
when so executed and delivered, shall be an original, but
all such counterparts shall together constitute but one and
the same instrument. Although this Amendment No. 5 is
dated as of the date first above written for convenience
(and once it becomes effective shall have effect from such
date), the actual dates of execution hereof by the parties
hereto are respectively the dates set forth under the
signatures hereto, and this Amendment No. 5 shall not be
effective until all such signatures shall have been duly
affixed and all conditions precedent set forth in Section 4
hereof shall have been satisfied. This Amendment No. 5
amends and modifies the Participation Agreement and is to
be read with and form part of the Participation Agreement.
On and from the Tax Rate Adjustment Date, any reference in
any Transaction Document to the Participation Agreement
shall be deemed to refer to the Participation Agreement as
amended and modified by Amendment No. 1 thereto, dated as
of February 1, 1988, Amendment No. 3 thereto, dated as of
March 16, 1988, Amendment No. 4 dated as of November 5,
1992, and this Amendment No. 5.
(b) Non-Waiver or Amendment. The agreements
-----------------------
contained in this Amendment shall not, except as expressly
provided in this Amendment, operate as a waiver of any
right, power or remedy of any party under any Transaction
Document, nor constitute, except as expressly provided in
this Amendment No. 5, a waiver of any provision of any
Transaction Document.
(c) Governing Law. This Amendment No. 5 has
-------------
been negotiated and delivered in the State of New York and
shall be governed by, and construed in accordance with, the
laws of the State of New York.
(d) Responsibility for Recitals. The recitals
---------------------------
contained herein shall be taken as the statements of the
Lessee, and the other parties hereto assume no
responsibility for the correctness of the same.
IN WITNESS WHEREOF, intending to be legally
bound, each of the parties hereto has caused this Amendment
No. 5 to the Participation Agreement to be duly executed by
its respective officers thereunto duly authorized as of the
dates set forth below.
BVPS FUNDING CORPORATION
By:____\s\_M.A. Ferrucci_____
Name:___M.A. FERRUCCI________
Title:__President____________
Date:___September 30, 1994___
BVPS II FUNDING CORPORATION
By:_____\s\ Lannhi Tran______
Name:____LANNHI TRAN_________
Title:___Vice President______
Date:____September 30, 1994__
THE FIRST NATIONAL BANK OF BOSTON,
in its individual capacity and as
Owner Trustee under a Trust
Agreement, dated as of September
15, 1987, as corrected and
restated with the Owner
Participant
By:______\s\ J.E. Mogavero___
Name:____J.E. Mogavero_______
Title:___Authorized Officer__
Date:____September 30, 1994___
THE BANK OF NEW YORK, in its
individual capacity and as
Indenture Trustee under a Trust
Indenture, Mortgage, Security
Agreement and Assignment of
Facility Lease dated as of
September 15, 1987, as corrected,
restated and amended with The
First National Bank of Boston in
its individual capacity and as
Owner Trustee under a Trust
Agreement, dated as of September
15, 1987, with the Owner
Participant.
By:_____\s\ W.T. Cunningham__
Name:___W.T. Cunningham______
Title:__Vice President_______
Date:___September 30, 1994___
OHIO EDISON COMPANY, as Lessee
By:_____\s\ R.H. Marsh_______
Name:___R.H. MARSH___________
Title:___TREASURER___________
Date:____September 30, 1994__
BEAVER VALLEY TWO PI LIMITED
PARTNERSHIP, as Owner Participant
By: BEAVER VALLEY TWO PI, INC.,
its Managing Partner
By:_____\s\ David D. Elliman_
Name:____David D. Elliman____
Title:___Chairman____________
Date:____September 30, 1994__
SCHEDULE 1
TO
AMENDMENT NO. 5
TO
PARTICIPATION AGREEMENT
------------------------
TAX RATE CHANGE ASSUMPTIONS
---------------------------
SEE WARREN & SELBERT ABC FILE OEBVTXMARCAPFINR DATED
25-SEP-1994 21:51:39 (A HARD COPY OF WHICH IS RETAINED
IN THE FILES OF OWNER PARTICIPANT)
1. Tax Rate Change
Transaction Expenses
$45,428.57 paid on the Tax Rate
Adjustment Date by the Lessee on
behalf of the Owner Trustee as
Supplemental Rent and amortized
for Federal income tax purposes on
a straight line basis over the
remaining Basic Lease Term.
2. Owner Participant's
Marginal Federal
Tax Rate 35 percent in 1993 and each year
after.
3. Basic Rent payments See Schedule 1 to Amendment No. 3
to Facility Lease.
4. Amortization of Notes
See Exhibits C-1, C-2 and C-3 to Amendment No. 5 to
Participation Agreement.
SCHEDULE 2
TO
AMENDMENT NO. 5
TO
PARTICIPATION AGREEMENT
-----------------------
RECORDATIONS AND FILINGS
------------------------
UCC-1 Financing Statements and Other Filings
A. Secretary of Commonwealth, Pennsylvania
(i) A financing statement on form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
B. County Recorder, Summit County, Ohio:
(i) A financing statement on form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
C. Secretary of State, Ohio
(i) A financing statement on Form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
<PAGE>
EXHIBIT A
TO AMENDMENT
NO. 5 TO
PARTICIPATION
AGREEMENT
-------------
[FORM OF LEASE AMENDMENT NO. 3]
<PAGE>
EXHIBIT B
TO AMENDMENT
NO. 5 TO
PARTICIPATION
AGREEMENT
-------------
[FORM OF REIMBURSEMENT AGREEMENT]
<TABLE>
EXHIBIT C-1
to Amendment No. 5 to
Participation Agreement
-----------------------
AMORTIZATION SCHEDULE FOR 7.38% FIXED RATE NOTE
-----------------------------------------------
(Beaver Valley Two Pi)
Interest Rate 7.38000%
Average Life 5.65719 Years; Duration 4.68989 Years
<CAPTION>
Date Draw Down Debt Service Interest Principal Balance
---- --------- ------------ -------- --------- -------
<S> <C> <C> <C> <C> <C>
Nov. 5, 1992 2860000.00 2860000.00
Dec. 1, 1992 1 15243.80 15243.80 0.00 2860000.00
Jun. 1, 1993 2 105534.00 105534.00 0.00 2860000.00
Dec. 1, 1993 3 105534.00 105534.00 0.00 2860000.00
Jun. 1, 1994 4 105534.00 105534.00 0.00 2860000.00
Dec. 1, 1994 5 105534.00 105534.00 0.00 2860000.00
Jun. 1, 1995 6 105534.00 105534.00 0.00 2860000.00
Dec. 1, 1995 7 228534.00 105534.00 123000.00 2737000.00
Jun. 1, 1996 8 270995.30 100995.30 170000.00 2567000.00
Dec. 1, 1996 9 270722.30 94772.30 176000.00 2391000.00
Jun. 1, 1997 10 273227.90 88227.90 185000.00 2206000.00
Dec. 1, 1997 11 447401.40 81401.40 366000.00 1840000.00
Jun. 1, 1998 12 448896.00 67896.00 381000.00 1459000.00
Dec. 1, 1998 13 461837.10 53837.10 408000.00 1051000.00
Jun. 1, 1999 14 554781.90 38781.90 516000.00 535000.00
Dec. 1, 1999 15 554741.50 19741.50 535000.00 0.00
Jun. 1, 2000 16 0.00 0.00 0.00 0.00
Dec. 1, 2000 17 0.00 0.00 0.00 0.00
Jun. 1, 2001 18 0.00 0.00 0.00 0.00
Dec. 1, 2001 19 0.00 0.00 0.00 0.00
Jun. 1, 2002 20 0.00 0.00 0.00 0.00
Dec. 1, 2002 21 0.00 0.00 0.00 0.00
Jun. 1, 2003 22 0.00 0.00 0.00 0.00
Dec. 1, 2003 23 0.00 0.00 0.00 0.00
Jun. 1, 2004 24 0.00 0.00 0.00 0.00
Dec. 1, 2004 25 0.00 0.00 0.00 0.00
Jun. 1, 2005 26 0.00 0.00 0.00 0.00
Dec. 1, 2005 27 0.00 0.00 0.00 0.00
Jun. 1, 2006 28 0.00 0.00 0.00 0.00
Dec. 1, 2006 29 0.00 0.00 0.00 0.00
Jun. 1, 2007 30 0.00 0.00 0.00 0.00
Dec. 1, 2007 31 0.00 0.00 0.00 0.00
Jun. 1, 2008 32 0.00 0.00 0.00 0.00
Dec. 1, 2008 33 0.00 0.00 0.00 0.00
Jun. 1, 2009 34 0.00 0.00 0.00 0.00
Dec. 1, 2009 35 0.00 0.00 0.00 0.00
Jun. 1, 2010 36 0.00 0.00 0.00 0.00
Dec. 1, 2010 37 0.00 0.00 0.00 0.00
Jun. 1, 2011 38 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
Date Draw Down Debt Service Interest Principal Balance
---- --------- ------------ -------- --------- -------
<S> <C> <C> <C> <C> <C>
Dec. 1, 2011 39 0.00 0.00 0.00 0.00
Jun. 1, 2012 40 0.00 0.00 0.00 0.00
Dec. 1, 2012 41 0.00 0.00 0.00 0.00
Jun. 1, 2013 42 0.00 0.00 0.00 0.00
Dec. 1, 2013 43 0.00 0.00 0.00 0.00
Jun. 1, 2014 44 0.00 0.00 0.00 0.00
Dec. 1, 2014 45 0.00 0.00 0.00 0.00
Jun. 1, 2015 46 0.00 0.00 0.00 0.00
Dec. 1, 2015 47 0.00 0.00 0.00 0.00
Jun. 1, 2016 48 0.00 0.00 0.00 0.00
Dec. 1, 2016 49 0.00 0.00 0.00 0.00
Jun. 1, 2017 50 0.00 0.00 0.00 0.00
------------ ---------- ---------- ----------
2860000.00 4054051.20 1194051.20 2860000.00
</TABLE>
<TABLE>
EXHIBIT C-2
to Amendment No. 5 to
Participation Agreement
-----------------------
AMORTIZATION SCHEDULE FOR 8.33% FIXED RATE NOTE
-----------------------------------------------
(Beaver Valley Two Pi)
Interest Rate 8.33000%
Average Life 12.23588 Years; Duration 7.81423 Years
<CAPTION>
Date Draw Down Debt Service Interest Principal Balance
---- --------- ------------ -------- --------- -------
<S> <C> <C> <C> <C> <C>
Nov. 5, 1992 1 2722000.00 12722000.00
Dec. 1, 1992 2 76536.97 76536.97 0.00 12722000.00
Jun. 1, 1993 3 529871.30 529871.30 0.00 12722000.00
Dec. 1, 1993 4 529871.30 529871.30 0.00 12722000.00
Jun. 1, 1994 5 529871.30 529871.30 0.00 12722000.00
Dec. 1, 1994 6 529871.30 529871.30 0.00 12722000.00
Jun. 1, 1995 7 529871.30 529871.30 0.00 12722000.00
Dec. 1, 1995 8 529871.30 529871.30 0.00 12722000.00
Jun. 1, 1996 9 529871.30 529871.30 0.00 12722000.00
Dec. 1, 1996 10 529871.30 529871.30 0.00 12722000.00
Jun. 1, 1997 11 529871.30 529871.30 0.00 12722000.00
Dec. 1, 1997 12 529871.30 529871.30 0.00 12722000.00
Jun. 1, 1998 13 529871.30 529871.30 0.00 12722000.00
Dec. 1, 1998 14 529871.30 529871.30 0.00 12722000.00
Jun. 1, 1999 15 529871.30 529871.30 0.00 12722000.00
Dec. 1, 1999 16 529871.30 529871.30 0.00 12722000.00
Jun. 1, 2000 17 933871.30 529871.30 404000.00 12318000.00
Dec. 1, 2000 18 907044.70 513044.70 394000.00 11924000.00
Jun. 1, 2001 19 1061634.60 496634.60 565000.00 11359000.00
Dec. 1, 2001 20 997102.35 473102.35 524000.00 10835000.00
Jun. 1, 2002 21 1059277.75 451277.75 608000.00 10227000.00
Dec. 1, 2002 22 988954.55 425954.55 563000.00 9664000.00
Jun. 1, 2003 23 1054505.60 402505.60 652000.00 9012000.00
Dec. 1, 2003 24 979349.80 375349.80 604000.00 8408000.00
Jun. 1, 2004 25 1050193.20 350193.20 700000.00 7708000.00
Dec. 1, 2004 26 1081038.20 321038.20 760000.00 6948000.00
Jun. 1, 2005 27 1080384.20 289384.20 791000.00 6157000.00
Dec. 1, 2005 28 1166439.05 256439.05 910000.00 5247000.00
Jun. 1, 2006 29 1097537.55 218537.55 879000.00 4368000.00
Dec. 1, 2006 30 1578927.20 181927.20 1397000.00 2971000.00
Jun. 1, 2007 31 1578742.15 123742.15 1455000.00 1516000.00
Dec. 1, 2007 32 1579141.40 63141.40 1516000.00 0.00
Jun. 1, 2008 33 0.00 0.00 0.00 0.00
Dec. 1, 2008 34 0.00 0.00 0.00 0.00
Jun. 1, 2009 35 0.00 0.00 0.00 0.00
Dec. 1, 2009 36 0.00 0.00 0.00 0.00
Jun. 1, 2010 37 0.00 0.00 0.00 0.00
Dec. 1, 2010 38 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
Date Draw Down Debt Service Interest Principal Balance
---- --------- ------------ -------- --------- -------
<S> <C> <C> <C> <C> <C>
Jun. 1, 2011 39 0.00 0.00 0.00 0.00
Dec. 1, 2011 40 0.00 0.00 0.00 0.00
Jun. 1, 2012 41 0.00 0.00 0.00 0.00
Dec. 1, 2012 42 0.00 0.00 0.00 0.00
Jun. 1, 2013 43 0.00 0.00 0.00 0.00
Dec. 1, 2013 44 0.00 0.00 0.00 0.00
Jun. 1, 2014 45 0.00 0.00 0.00 0.00
Dec. 1, 2014 46 0.00 0.00 0.00 0.00
Jun. 1, 2015 47 0.00 0.00 0.00 0.00
Dec. 1, 2015 48 0.00 0.00 0.00 0.00
Jun. 1, 2016 49 0.00 0.00 0.00 0.00
Dec. 1, 2016 50 0.00 0.00 0.00 0.00
Jun. 1, 2017 51 0.00 0.00 0.00 0.00
----------- ----------- ----------- -----------
12722000.00 25688878.77 12966878.77 12722000.00
</TABLE>
<TABLE>
EXHIBIT C-3
to Amendment No. 5 to
Participation Agreement
-----------------------
AMORTIZATION SCHEDULE FOR 8.33% FIXED RATE NOTE
-----------------------------------------------
(Beaver Valley Two Pi)
Interest Rate 8.89000%
Average Life 20.72917 Years; Duration 9.76609 Years
<CAPTION>
Date Draw Down Debt Service Interest Principal Balance
---- --------- ------------ -------- --------- -------
<S> <C> <C> <C> <C> <C>
Nov. 5, 1992 22488000.00 22488000.00
Dec. 1, 1992 1 144385.45 144385.45 0.00 22488000.00
Jun. 1, 1993 2 999591.60 999591.60 0.00 22488000.00
Dec. 1, 1993 3 999591.60 999591.60 0.00 22488000.00
Jun. 1, 1994 4 999591.60 999591.60 0.00 22488000.00
Dec. 1, 1994 5 999591.60 999591.60 0.00 22488000.00
Jun. 1, 1995 6 999591.60 999591.60 0.00 22488000.00
Dec. 1, 1995 7 999591.60 999591.60 0.00 22488000.00
Jun. 1, 1996 8 999591.60 999591.60 0.00 22488000.00
Dec. 1, 1996 9 999591.60 999591.60 0.00 22488000.00
Jun. 1, 1997 10 999591.60 999591.60 0.00 22488000.00
Dec. 1, 1997 11 999591.60 999591.60 0.00 22488000.00
Jun. 1, 1998 12 999591.60 999591.60 0.00 22488000.00
Dec. 1, 1998 13 999591.60 999591.60 0.00 22488000.00
Jun. 1, 1999 14 999591.60 999591.60 0.00 22488000.00
Dec. 1, 1999 15 999591.60 999591.60 0.00 22488000.00
Jun. 1, 2000 16 999591.60 999591.60 0.00 22488000.00
Dec. 1, 2000 17 999591.60 999591.60 0.00 22488000.00
Jun. 1, 2001 18 999591.60 999591.60 0.00 22488000.00
Dec. 1, 2001 19 999591.60 999591.60 0.00 22488000.00
Jun. 1, 2002 20 999591.60 999591.60 0.00 22488000.00
Dec. 1, 2002 21 999591.60 999591.60 0.00 22488000.00
Jun. 1, 2003 22 999591.60 999591.60 0.00 22488000.00
Dec. 1, 2003 23 999591.60 999591.60 0.00 22488000.00
Jun. 1, 2004 24 999591.60 999591.60 0.00 22488000.00
Dec. 1, 2004 25 999591.60 999591.60 0.00 22488000.00
Jun. 1, 2005 26 999591.60 999591.60 0.00 22488000.00
Dec. 1, 2005 27 999591.60 999591.60 0.00 22488000.00
Jun. 1, 2006 28 999591.60 999591.60 0.00 22488000.00
Dec. 1, 2006 29 999591.60 999591.60 0.00 22488000.00
Jun. 1, 2007 30 999591.60 999591.60 0.00 22488000.00
Dec. 1, 2007 31 999591.60 999591.60 0.00 22488000.00
Jun. 1, 2008 32 999591.60 999591.60 0.00 22488000.00
Dec. 1, 2008 33 1303591.60 999591.60 304000.00 22184000.00
Jun. 1, 2009 34 1958078.80 986078.80 972000.00 21212000.00
Dec. 1, 2009 35 2066873.40 942873.40 1124000.00 20088000.00
Jun. 1, 2010 36 1924911.60 892911.60 1032000.00 19056000.00
Dec. 1, 2010 37 2037039.20 847039.20 1190000.00 17866000.00
Jun. 1, 2011 38 1886143.70 794143.70 1092000.00 16774000.00
</TABLE>
<TABLE>
<CAPTION>
Date Draw Down Debt Service Interest Principal Balance
---- --------- ------------ -------- --------- -------
<S> <C> <C> <C> <C> <C>
Dec. 1, 2011 39 2004604.30 745604.30 1259000.00 15515000.00
Jun. 1, 2012 40 1844641.75 689641.75 1155000.00 14360000.00
Dec. 1, 2012 41 1971302.00 638302.00 1333000.00 13027000.00
Jun. 1, 2013 42 2336050.15 579050.15 1757000.00 11270000.00
Dec. 1, 2013 43 2578951.50 500951.50 2078000.00 9192000.00
Jun. 1, 2014 44 2578584.40 408584.40 2170000.00 7022000.00
Dec. 1, 2014 45 629127.90 312127.90 317000.00 6705000.00
Jun. 1, 2015 46 1843037.25 298037.25 1545000.00 5160000.00
Dec. 1, 2015 47 334362.00 229362.00 305000.00 4855000.00
Jun. 1, 2016 48 1655804.75 215804.75 1440000.00 3415000.00
Dec. 1, 2016 49 1816796.75 151796.75 1665000.00 1750000.00
Jun. 1, 2017 50 1827787.30 77787.50 1750000.00 0.00
----------- ----------- ----------- ----------
22488000.00 63929413.60 41441413.60 2488000.00
</TABLE>
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE AS
AMENDED BY THIS AMENDMENT NO. 3 THERETO HAVE BEEN ASSIGNED TO,
AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF, THE BANK OF
NEW YORK, AS INDENTURE TRUSTEE UNDER A TRUST INDENTURE,
MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF FACILITY LEASE
DATED AS OF SEPTEMBER 15, 1987, AS CORRECTED AND RESTATED AND
AS SUPPLEMENTED BY THE SUPPLEMENTAL INDENTURE NO. 1 THERETO,
DATED AS OF FEBRUARY 1, 1988, AND BY THE SUPPLEMENTAL INDENTURE
NO. 2 THERETO, DATED AS OF NOVEMBER 1, 1992. THIS AMENDMENT
NO. 3 HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. SEE SECTION
3(b) OF THIS AMENDMENT NO. 3 FOR INFORMATION CONCERNING THE
RIGHTS OF HOLDERS OF VARIOUS COUNTERPARTS HEREOF.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART
___________________________________________________________
AMENDMENT NO. 3
dated as of September 30, 1994
to
FACILITY LEASE
dated as of September 15, 1987,
as corrected and restated
and amended as of February 1, 1988,
and further amended as of November 5, 1992,
between
THE FIRST NATIONAL BANK OF BOSTON
not in its individual capacity, but solely
as Owner Trustee under a Trust Agreement,
dated as of September 15, 1987,
as corrected and restated with
BEAVER VALLEY TWO PI LIMITED PARTNERSHIP,
as Lessor
and
OHIO EDISON COMPANY,
as Lessee
___________________________________________________________
Original Facility Lease Recorded on October 1, 1987, at
Mortgage Book Volume ___, Page ___, Beaver County,
Pennsylvania Recorder's Office.
Corrective and Restated Facility Lease Recorded on
December __, 1987, at Mortgage Book Volume ___, Page ___,
Beaver County, Pennsylvania Recorder's Office.
Amendment No. 1 to Facility Lease Recorded on December
__, 1987, at Mortgage Book Volume ___, Page ___, Beaver
County, Pennsylvania Recorder's Office.
Amendment No. 2 to Facility Lease Recorded on November
__, 1992, at Mortgage Book Volume ___, Page ___, Beaver
County, Pennsylvania Recorder's Office.
AMENDMENT NO. 3, dated as of September 30, 1994
("Amendment No. 3"), to the Facility Lease, dated September
15, 1987, as corrected and restated and as amended by
Amendment No. 1 thereto, dated as of February 1, 1988
("Amendment No. 1"), and Amendment No. 2 thereto, dated as of
November 5, 1992 ("Amendment No. 2"), all as in effect on the
date hereof (the "Facility Lease"), between THE FIRST
NATIONAL BANK OF BOSTON, a national banking association, not
in its individual capacity, but solely as Owner Trustee (the
"Lessor") under a Trust Agreement, dated as of September 15,
1987, with BEAVER VALLEY TWO PI LIMITED PARTNERSHIP, as Owner
Participant and OHIO EDISON COMPANY, an Ohio corporation (the
"Lessee").
W I T N E S S E T H :
-------------------
WHEREAS, the Lessor and the Lessee have heretofore
entered into the Facility Lease providing for the lease by
the Lessor to the Lessee of the Undivided Interest; and
WHEREAS, Section 3(d) of the Facility Lease
provides for an adjustment to Basic Rent and to the schedules
of Casualty Values, Special Casualty Values and Modified
Special Casualty Values so as to preserve Owner Participant's
Net Economic Return in the event, among other things, of any
Tax Rate Change occurring prior to the twentieth anniversary
of the Closing Date, which results in the change in Tax Rate
from the rate assumed in the Pricing Assumptions as in effect
on the Closing Date; and
WHEREAS, Section 11(b)(1) of the Code, as amended
by the Omnibus Budget Reconciliation Act of 1993 (P.L.
103-66), generally effective for tax years beginning on or
after January 1, 1993, increases the Tax Rate assumed to be
applicable to the Owner Participant in the Pricing
Assumptions from 34% to 35%; and
WHEREAS, as a result of the Tax Rate Change, in
order to carry out the provisions of Section 3(d) of the
Facility Lease, the Owner Trustee and the Lessee desire to
execute this Amendment No. 3 to amend certain Sections of the
Facility Lease, amend Appendix A thereto, and amend the
schedules of Basic Rent percentages, Casualty Values, Special
Casualty Values and Modified Special Casualty Values pursuant
to Sections 3(d) and 3(f) of the Facility Lease.
NOW, THEREFORE, in consideration of the premises
and of other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Definitions
-----------
For purposes hereof, capitalized terms used herein
and not otherwise defined herein shall have the meanings
assigned to such terms in Appendix A to the Facility Lease.
SECTION 2. Supplements and Amendments
--------------------------
(a) Section 3(e) Other Adjustments to Rent.
--------------------------------------
Section 3(e) of the Facility Lease is amended by inserting
before the end of the proviso contained in the second
sentence thereof after the phrase "or this Section 3(e)" the
following phrase:
"; provided further that in order to determine
----------------
the foregoing adjustments the Owner Participant
will prepare a pricing file which preserves Net
Economic Return and incorporates all of the Amended
Assumptions and the Tax Rate Assumptions".
(b) Computation of Adjustments. Section 3(f) of
--------------------------
the Facility Lease is hereby amended as follows:
(i) by amending subparagraph (i)(A) by deleting
the phrase "this Participation Agreement" and inserting
in lieu thereof the phrase "the Participation Agreement"
and
(ii) by amending subparagraph (v) by (a)
inserting in the second parenthetical in the third
sentence thereof after the phrase "the pricing
file" the phrase "which incorporates the Amended
Assumptions and the Tax Rate Assumptions" and (b)
inserting before the end thereof after the last
parenthetical thereof the phrase "while preserving
Net Economic Return".
(c) Definitions. Appendix A to the Facility
-----------
Lease is amended as set forth in Amendment No. 5, dated as of
September 30, 1994, to the Participation Agreement, among the
Owner Participant, Funding Corporation, New Funding
Corporation, the Owner Trustee, the Indenture Trustee and the
Lessee, in respect of Appendix A thereto.
(d) Schedules. Schedules 1 through 4 of the
---------
Facility Lease are hereby amended as follows:
(i) Schedule 1 entitled "Basic Rent Percentages"
is deleted in its entirety and is hereby replaced with
Schedule 1 hereto.
(ii) Schedule 2 entitled "Schedule of Casualty
Values" is deleted in its entirety and is hereby
replaced with Schedule 2 hereto.
(iii) Schedule 3 entitled "Schedule of Special
Casualty Values" is deleted in its entirety and is
hereby replaced with Schedule 3 hereto.
(iv) Schedule 4 entitled "Schedule of Modified
Special Casualty Values" is deleted in its entirety and
is hereby replaced with Schedule 4 hereto.
SECTION 3. Miscellaneous
-------------
(a) Execution. This Amendment No. 3 may be
---------
executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which, when
so executed and delivered, shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
(b) Original Counterpart. The single executed
--------------------
original of this Amendment No. 3 marked "THIS COUNTERPART IS
THE ORIGINAL COUNTERPART" and containing the receipt of the
Indenture Trustee thereon shall be the "Original" of this
Amendment No. 3. No security interest in this Amendment No.
3 may be created or continued through the transfer or
possession of any counterpart other than the "Original."
(c) Effectiveness. Although this Amendment No.
-------------
3 is dated as of the date first above written for convenience
(and once it becomes effective shall have effect from such
date), the actual dates of execution hereof by the parties
hereto are, respectively, the dates set forth under the
signatures hereto, and this Amendment No. 3 shall become
effective as of the Tax Rate Adjustment Date (as defined in
Amendment No. 5 to the Participation Agreement) when all
conditions precedent to the Tax Rate Adjustment Date shall
have been satisfied and this Amendment No. 3 shall have been
duly executed and delivered by all of the parties hereto, is
executed and shall be construed as an amendment and supple-
ment to the Facility Lease, and as provided in the Facility
Lease, this Amendment No. 3 forms a part thereof. On and
from the Tax Rate Adjustment Date any reference in any
Transaction Document to the Facility Lease shall be deemed to
refer to the Facility Lease, as corrected and restated and as
amended and modified by Amendment No. 1, Amendment No. 2 and
this Amendment No. 3 and the Facility Lease, as so amended,
remains in full force and effect in accordance with its
terms.
(d) Non-Waiver or Amendment. The agreements
-----------------------
contained in this Amendment No. 3 shall not, except as
expressly provided in this Amendment No. 3, operate as a
waiver of any right, power or remedy of any party under any
Transaction Document nor constitute, except as expressly
provided in this Amendment No. 3, a waiver of any provision
of any Transaction Document.
(e) Governing Law. This Amendment No. 3 shall
-------------
be governed by and construed in accordance with the laws of
the State of New York, except to the extent that the laws of
the Commonwealth of Pennsylvania govern the creation of, and
perfection of, the leasehold estate hereunder and the
exercise of rights and remedies with respect to such
leasehold estate and except to the extent that the Federal
laws of the United States are mandatorily applicable.
IN WITNESS WHEREOF, the Lessor and the Lessee have
caused this Amendment No. 3 to be duly executed as of the
date set forth above by their respective officers thereunto
duly organized.
THE FIRST NATIONAL BANK
OF BOSTON, not in its
individual capacity, but
solely as Owner Trustee
under a Trust Agreement,
dated as of September 15,
1987, as corrected and
restated, with BEAVER
VALLEY TWO PI LIMITED
PARTNERSHIP, as Lessor
Attest: \s\ Emily Lea By \s\ J.E. Mogavero
--------------------- -------------------------
Name: Emily Lea Name: J.E. Mogavero
Title: Account Manager Title: Authorized Officer
[Corporate Seal]
OHIO EDISON COMPANY,
as Lessee
Attest: \s\ G.F. LaFlame By \s\ R.H. Marsh
--------------------- --------------------------
Name: G.F. LaFlame Name: R.H. Marsh
Title: Secretary Title: Treasurer
[Corporate Seal]
COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF NORFOLK )
ON THIS, the 27th day of September, 1994, before me
a Notary Public, personally appeared James E. Mogavero, who
acknowledged himself to be a Authorized Officer of THE FIRST
NATIONAL BANK OF BOSTON, and that he as such officer, being
authorized to do so, executed the foregoing instrument for
the purposes therein contained by signing the name of the
national banking association by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
\s\ Bernadette L. May, Bernadette L. May
-----------------------------------------
Notary Public
My Commission Expires: October 31, 1997
STATE OF OHIO )
: ss.:
COUNTY OF SUMMIT )
ON THIS, the 30th day of September, 1994, before me
a Notary Public in and for said County and State, personally
appeared R.H. Marsh, who acknowledged himself to be a
Treasurer of OHIO EDISON COMPANY, and that he as such
officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the
name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
\s\ Susie M. Hoisten
-------------------------------
Notary Public
Susie M. Hoisten - Notary Public
Residence - Summit County
State Wide Jurisdiction, Ohio
My Commission Expires Nov. 4, 1996
I.B.
----
CERTAIN OF THE RIGHT, TITLE AND INTEREST IN AND TO
THIS AMENDMENT NO. 3 TO FACILITY LEASE OF THE FIRST NATIONAL
BANK OF BOSTON, AS OWNER TRUSTEE UNDER THE TRUST AGREEMENT,
DATED AS OF SEPTEMBER 15, 1987, AS CORRECTED AND RESTATED TO
THE DATE HEREOF, BETWEEN THE FIRST NATIONAL BANK OF BOSTON
AND BEAVER VALLEY TWO PI LIMITED PARTNERSHIP HAS BEEN
ASSIGNED TO AND IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF
THE BANK OF NEW YORK, AS INDENTURE TRUSTEE, UNDER THE TRUST
INDENTURE, MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF
FACILITY LEASE, DATED AS OF SEPTEMBER 15, 1987, AS CORRECTED
AND RESTATED AND AS SUPPLEMENTED TO THE DATE HEREOF, FOR THE
BENEFIT OF THE HOLDERS OF THE NOTES REFERRED TO IN SUCH TRUST
INDENTURE, MORTGAGE, SECURITY AGREEMENT, AND ASSIGNMENT OF
FACILITY LEASE. THIS AMENDMENT NO. 3 TO FACILITY LEASE HAS
BEEN EXECUTED IN SEVERAL COUNTERPARTS. ONLY THAT COUNTERPART
TO BE DEEMED THE ORIGINAL COUNTERPART FOR CHATTEL PAPER
PURPOSES CONTAINS THIS RECEIPT THEREFOR EXECUTED BY THE BANK
OF NEW YORK, AS INDENTURE TRUSTEE, ON THE SIGNATURE PAGES
THEREOF AND NO SECURITY INTEREST IN THIS AMENDMENT NO. 3 TO
FACILITY LEASE MAY BE CREATED THROUGH THE TRANSFER OR
POSSESSION OF ANY COUNTERPART OTHER THAN THIS EXECUTED
ORIGINAL COUNTERPART. SEE SECTION 22(e) OF THE FACILITY
LEASE FOR INFORMATION CONCERNING THE RIGHTS OF THE HOLDERS OF
THE VARIOUS COUNTERPARTS HEREOF.
Receipt of this original counterpart of the
foregoing Amendment No. 3 To Facility Lease is hereby
acknowledged on this ___ day of ____, 1994.
THE BANK OF NEW YORK,
as Indenture Trustee
By__________________________
Name:
Title:
SCHEDULE 1
to
AMENDMENT NO. 3
TO FACILITY LEASE
-----------------
BASIC RENT PERCENTAGES
----------------------
Beaver Valley Two Pi L.P.
Date $ %
---- - -
Dec 1 1994 1,635,187.23 3.23767072
Jun 1 1995 1,635,187.23 3.23767072
Dec 1 1995 1,798,705.95 3.56143779
Jun 1 1996 1,801,079.57 3.56613754
Dec 1 1996 1,801,079.57 3.56613754
Jun 1 1997 1,802,793.92 3.56953197
Dec 1 1997 1,979,473.17 3.91935687
Jun 1 1998 1,979,473.17 3.91935687
Dec 1 1998 1,991,907.28 3.94397641
Jun 1 1999 2,084,974.73 4.12824997
Dec 1 1999 2,084,974.73 4.12824997
Jun 1 2000 2,128,731.98 4.21488933
Dec 1 2000 2,128,731.98 4.21488933
Jun 1 2001 2,235,168.58 4.42563379
Dec 1 2001 2,235,168.58 4.42563379
Jun 1 2002 2,346,927.01 4.64691548
Dec 1 2002 2,346,927.01 4.64691548
Jun 1 2003 2,349,532.63 4.65207461
Dec 1 2003 2,579,014.09 5.10644790
Jun 1 2004 2,579,014.09 5.10644790
Dec 1 2004 2,579,014.09 5.10644790
Jun 1 2005 2,579,014.09 5.10644790
Dec 1 2005 2,579,014.09 5.10644790
Jun 1 2006 2,579,014.09 5.10644790
Dec 1 2006 2,579,014.09 5.10644790
Jun 1 2007 2,579,014.09 5.10644790
Dec 1 2007 2,579,014.09 5.10644790
Jun 1 2008 2,579,014.09 5.10644790
Dec 1 2008 2,579,014.09 5.10644790
Jun 1 2009 2,579,014.09 5.10644790
Dec 1 2009 2,579,014.09 5.10644790
SCHEDULE 1
to
AMENDMENT NO. 3
TO FACILITY LEASE
-----------------
Date $ %
---- - -
Jun 1 2010 2,579,014.09 5.10644790
Dec 1 2010 2,579,014.09 5.10644790
Jun 1 2011 2,579,014.09 5.10644790
Dec 1 2011 2,579,014.09 5.10644790
Jun 1 2012 2,579,014.09 5.10644790
Dec 1 2012 2,579,014.09 5.10644790
Jun 1 2013 2,579,014.09 5.10644790
Dec 1 2013 2,579,014.09 5.10644790
Jun 1 2014 2,579,014.09 5.10644790
Dec 1 2014 2,579,014.09 5.10644790
Jun 1 2015 2,579,014.09 5.10644790
Dec 1 2015 2,579,014.09 5.10644790
Jun 1 2016 2,579,014.09 5.10644790
Dec 1 2016 2,579,014.09 5.10644790
Jun 1 2017 2,579,014.09 5.10644790
SCHEDULE 2
to
AMENDMENT NO. 3
TO FACILITY LEASE
-----------------
CASUALTY VALUES
Beaver Valley Two Pi L.P.
(Expressed as Percentage of Facility Cost)
------------------------------------------
Date % of Facility Cost
---- ------------------
Dec 1 1994 113.89093130
Jun 1 1995 114.49082411
Dec 1 1995 114.65496961
Jun 1 1996 114.70891433
Dec 1 1996 114.63043681
Jun 1 1997 114.44436984
Dec 1 1997 113.86855976
Jun 1 1998 113.27298393
Dec 1 1998 112.63224272
Jun 1 1999 111.78503957
Dec 1 1999 110.90890079
Jun 1 2000 109.93477374
Dec 1 2000 108.94377608
Jun 1 2001 107.71510252
Dec 1 2001 106.47119825
Jun 1 2002 104.97577009
Dec 1 2002 103.45287051
Jun 1 2003 101.87925878
Dec 1 2003 99.83393628
Jun 1 2004 97.70858451
Dec 1 2004 95.53102035
Jun 1 2005 93.28767654
Dec 1 2005 90.99361685
Jun 1 2006 88.63829028
Dec 1 2006 86.23349315
Jun 1 2007 83.80559258
Dec 1 2007 81.38625524
Jun 1 2008 78.95892189
SCHEDULE 2
to
AMENDMENT NO. 3
TO FACILITY LEASE
-----------------
Date % of Facility Cost
---- ------------------
Dec 1 2008 76.38466597
Jun 1 2009 73.67153197
Dec 1 2009 70.89326738
Jun 1 2010 68.03581181
Dec 1 2010 65.11001928
Jun 1 2011 62.10110310
Dec 1 2011 59.02060776
Jun 1 2012 55.85291422
Dec 1 2012 52.61029110
Jun 1 2013 49.27630297
Dec 1 2013 45.90810514
Jun 1 2014 42.51314886
Dec 1 2014 39.13073560
Jun 1 2015 35.54168329
Dec 1 2015 31.89055429
Jun 1 2016 28.02570452
Dec 1 2016 24.07178000
Jun 1 2017 20.00000000
SCHEDULE 3
to
AMENDMENT NO. 3
TO FACILITY LEASE
-----------------
SPECIAL CASUALTY VALUES
Beaver Valley Two Pi L.P.
(Expressed as Percentage of Facility Cost)
------------------------------------------
Date % of Facility Cost
---- ------------------
Dec 1 1994 112.52790430
Jun 1 1995 113.06607730
Dec 1 1995 113.16570823
Jun 1 1996 113.15221706
Dec 1 1996 113.00325007
Jun 1 1997 112.74350177
Dec 1 1997 112.09067395
Jun 1 1998 111.41459291
Dec 1 1998 110.68970110
Jun 1 1999 109.75453689
Dec 1 1999 108.78645405
Jun 1 2000 107.71621958
Dec 1 2000 106.62476262
Jun 1 2001 105.29108081
Dec 1 2001 103.93741338
Jun 1 2002 102.32725182
Dec 1 2002 100.68442355
Jun 1 2003 98.98545259
Dec 1 2003 96.80909442
Jun 1 2004 94.54677349
Dec 1 2004 92.22603801
Jun 1 2005 89.83303988
Dec 1 2005 87.38254931
Jun 1 2006 84.86370844
Dec 1 2006 82.28799285
Jun 1 2007 79.68143439
Dec 1 2007 77.07534928
Jun 1 2008 74.45281195
Dec 1 2008 71.67451294
Jun 1 2009 68.74809648
SCHEDULE 3
to
AMENDMENT NO. 3
TO FACILITY LEASE
-----------------
Date % of Facility Cost
---- ------------------
Dec 1 2009 65.74689169
Jun 1 2010 62.65640089
Dec 1 2010 59.48702095
Jun 1 2011 56.22348738
Dec 1 2011 52.87684520
Jun 1 2012 49.43095332
Dec 1 2012 45.89753463
Jun 1 2013 42.25958330
Dec 1 2013 38.57365838
Jun 1 2014 34.84658788
Dec 1 2014 31.11702179
Jun 1 2015 27.16509707
Dec 1 2015 23.13466428
Jun 1 2016 18.87333531
Dec 1 2016 14.50497844
Jun 1 2017 10.00000000
SCHEDULE 4
to
AMENDMENT NO. 3
TO FACILITY LEASE
-----------------
MODIFIED SPECIAL CASUALTY VALUES
Beaver Valley Two Pi L.P.
Date % of Facility Cost $
---- ------------------ -
Dec 1 1994 35.78665415 18,074,067.75
Jun 1 1995 36.26310734 18,314,700.68
Dec 1 1995 36.62199077 18,495,954.93
Jun 1 1996 36.79829010 18,584,995.00
Dec 1 1996 36.92785417 18,650,431.40
Jun 1 1997 36.95915787 18,666,241.35
Dec 1 1997 36.95895368 18,666,138.22
Jun 1 1998 36.95378813 18,663,529.36
Dec 1 1998 36.95158188 18,662,415.09
Jun 1 1999 36.95037947 18,661,807.81
Dec 1 1999 36.94973256 18,661,481.09
Jun 1 2000 36.96841820 18,670,918.28
Dec 1 2000 36.60973860 18,489,766.97
Jun 1 2001 36.19440502 18,280,002.53
Dec 1 2001 35.89626828 18,129,428.42
Jun 1 2002 35.47338772 17,915,852.38
Dec 1 2002 34.96461070 17,658,894.29
Jun 1 2003 34.30660856 17,326,569.98
Dec 1 2003 33.79831647 17,069,856.80
Jun 1 2004 32.64475645 16,487,250.73
Dec 1 2004 31.62457655 15,972,008.36
Jun 1 2005 30.64939902 15,479,494.45
Dec 1 2005 29.67388897 14,986,812.61
Jun 1 2006 28.86837877 14,579,989.28
Dec 1 2006 27.93465323 14,108,410.72
Jun 1 2007 28.03070328 14,156,920.85
Dec 1 2007 28.23875988 14,261,999.94
Jun 1 2008 28.54771854 14,418,039.67
SCHEDULE 4
to
AMENDMENT NO. 3
TO FACILITY LEASE
-----------------
Date % of Facility Cost $
---- ------------------ -
Dec 1 2008 25.56537643 12,911,806.28
Jun 1 2009 23.05435286 11,643,612.55
Dec 1 2009 21.84031458 11,030,461.91
Jun 1 2010 20.84123290 10,525,875.20
Dec 1 2010 19.56245290 9,880,026.72
Jun 1 2011 18.50523502 9,346,078.29
Dec 1 2011 17.15071402 8,661,976.78
Jun 1 2012 16.03024964 8,096,085.68
Dec 1 2012 14.59458810 7,371,004.09
Jun 1 2013 13.40933224 6,772,390.02
Dec 1 2013 13.03917556 6,585,442.20
Jun 1 2014 13.27731768 6,705,716.00
Dec 1 2014 13.68818264 6,913,223.55
Jun 1 2015 10.02894500 5,065,123.74
Dec 1 2015 8.81428541 4,451,659.30
Jun 1 2016 4.78722059 2,417,788.18
Dec 1 2016 2.98236721 1,506,246.07
Jun 1 2017 1.48742865 751,226.59
===========================================================
AMENDMENT NO. 1
dated as of November 5, 1992
to
CORRECTIVE
TAX INDEMNIFICATION AGREEMENT
dated as of September 15, 1987
between
BEAVER VALLEY TWO PI, INC.,
and
PAROCK LIMITED PARTNERSHIP,
as General Partners
and
OHIO EDISON COMPANY,
as Lessee
===========================================================
Sale and Leaseback of an Undivided Interest in
Beaver Valley Nuclear Power Plant Unit 2
===========================================================
AMENDMENT NO. 1, dated as of November 5, 1992, to
TAX INDEMNIFICATION AGREEMENT, dated as of September 15,
1987, between BEAVER VALLEY TWO PI, INC., a Pennsylvania
corporation, and PAROCK LIMITED PARTNERSHIP, a New York
limited partnership (collectively, the "General Partners"
and, individually, a "General Partner") and OHIO EDISON
COMPANY, an Ohio corporation (the "Lessee"). Capitalized
terms not otherwise defined herein shall have the meaning set
forth in an Appendix A to the Participation Agreement, dated
as of September 15, 1987, among Beaver Valley Two Pi Limited
Partnership, the Original Loan Participants listed on
Schedule l thereto, BVPS Funding Corporation, The First
National Bank of Boston, Irving Trust Company and Ohio Edison
Company, as amended from time to time (the "Participation
Agreement"), or Appendix A to the Refinancing Agreement,
dated as of October 30, 1992, among Beaver Valley Two Pi
Limited Partnership, BVPS Funding Corporation, BVPS II
Funding Corporation, The First National Bank of Boston, the
Bank of New York, and Ohio Edison Company (the "Refinancing
Agreement").
WHEREAS, the Limited Partner and the General
Partners have executed the Limited Partnership Agreement
pursuant to which the General Partners have acquired a
general partnership interest in the Owner Participant, and
the Owner Participant and the Lessee have executed the
Participation Agreement pursuant to which the Owner
Participant has caused the Owner Trustee to purchase the
Undivided Interest from the Lessee;
WHEREAS, the Owner Trustee has executed the
Facility Lease pursuant to which the Owner Trustee has leased
the Undivided Interest to the Lessee;
WHEREAS, the Lessee and the Owner Participant
desire to refinance the Fixed Rate Notes and the
Collateralized Lease Bonds and have entered into the
Refinancing Agreement; and
WHEREAS, the General Partners and the Lessee have
heretofore executed the Corrective Tax Indemnification
Agreement, dated as of September 15, 1987 (the "Tax
Indemnification Agreement"), and desire to amend the Tax
Indemnification Agreement as hereinafter provided to clarify
their respective rights and obligations arising from the
Refinancing;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
The Tax Indemnification Agreement is hereby
amended, effective upon the execution and delivery of this
Agreement, as follows:
1. The preamble thereof is amended by (i)
inserting the words ", as amended from time to time"
immediately after the words "and the Lessee" and
immediately before the words "(the "Participation
Agreement")" and (ii) inserting the words "or Appendix A
to the Refinancing Agreement, dated as of October 30,
1992, among Beaver Valley Pi Limited Partnership, BVPS
Funding Corporation, BVPS II Funding Corporation, The
First National Bank of Boston, the Bank of New York, and
the Lessee (the "Refinancing Agreement")" immediately
after the words "(the "Participation Agreement")" and
immediately before the period ending the sentence.
2. Section 1(a)(10) thereof is amended by
inserting the words "the Retirement Premium Deduction,
as defined below, the Refinancing Amortization
Deductions, as defined below)" immediately after the
words "the Interest Deductions," and immediately before
the words "and the Amortization Deductions".
3. Section 1(a)(12) thereof is amended (i) by
inserting the words "Except as otherwise provided in
Section 5 of the Refinancing Agreement," immediately
before the words "Basic Rent will be paid on" and (ii)
by inserting the words "Except as otherwise provided in
Section 5 of the Refinancing Agreement," immediately
before the words "Basic Rent will be payable in
arrears".
4. Section 1(a)(13) thereof is amended (i) by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents"
and immediately before the words "other than (a)
payment" and (ii) by deleting in clause (b) thereof the
words "six-month period ending on each Basic Rent
Payment Date," and replacing them with the words "period
to which each payment of Basic Rent relates, as set
forth in the Facility Lease,".
5. Section 1(a)(17) thereof is amended by
inserting the words "and the Refinancing Documents"
immediately after the words "the Transaction Documents"
and immediately before the words "using the accrual
method".
6. Section 1(a)(18) thereof is amended by
inserting the words "and the Refinancing Documents"
immediately after the words "and the Financing
Documents" and immediately before the words "as derived
from or allocable to".
7. Section 1(a) thereof is amended by adding the
following tax assumptions at the end of said Section
1(a):
"(19) The Owner Participant will be allowed a
deduction for 100 percent of the premium paid with
respect to the Purchased Notes and the Purchased
Bonds in the taxable year of the Owner Participant
in which such premium is paid (the "Retirement
Premium Deduction"); and the General Partners will
be entitled to take their respective 0.9% and 0.1%
distributive share of the Retirement Premium
Deduction into account in computing their federal
income tax liability.
(20) The Owner Participant will be allowed
current deductions for amortization of an amount
equal to the Refinancing Transaction Expenses to
the extent payable by the Owner Trustee pursuant to
Section 15(a) of the Refinancing Agreement computed
on a straight-line basis from the Purchase Date to
the end of the Basic Lease Term (the "Refinancing
Amortization Deductions"); and the General Partners
will be entitled to take their respective 0.9% and
0.1% distributive share of the Refinancing
Amortization Deductions into account in computing
their federal income tax liability."
8. Section 1(b)(8) thereof is amended by
inserting the words "the Retirement Premium Deduction,
the Refinancing Amortization Deductions" immediately
after the words "the Interest Deductions," and
immediately before the words "and the Amortization
Deductions".
9. Section 1(b)(9) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents"
and immediately before the words "other than the amounts
described".
10. Section 1(b)(10) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents"
and immediately before the words "as derived from or
allocable to".
11. Section 1(b)(19) thereof is amended by
inserting the words "the Retirement Premium Deduction,
the Refinancing Amortization Deductions" immediately
after the words "the Interest Deductions," and
immediately before the words "or the Amortization
Deductions,".
12. Section 1(b)(21) thereof is amended (i) by
inserting the words "and will not throughout the term of
the Facility Lease" immediately after the words "does
not" and immediately before the words "legally,
beneficially or constructively" and (ii) by inserting
the words "or New Funding Corporation" immediately after
the words "or Funding Corporation" and immediately
before the words "or any Holder of Bonds".
13. Section 1(b)(22) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents"
and immediately before the period ending the sentence.
14. Section 2(b)(1) thereof is amended by (i)
inserting the words ", the Retirement Premium Deduction,
the Refinancing Amortization Deductions" immediately
after the words "the Interest Deductions" and
immediately before the words "or the Amortization
Deductions" and (ii) inserting the words "or the
Refinancing Documents" immediately after the words "or
the Financing Documents" and immediately before the
words "other than the amounts".
15. Section 2(b)(1)(i) thereof is amended by (i)
inserting the words ", the Refinancing Documents"
immediately after the words "the Financing Documents"
and immediately before the words "or any certificate or
other document" and (ii) inserting the words "or the
Refinancing Documents" immediately after the words "or
the Financing Documents" and immediately before the word
", or".
16. Section 2(b)(1)(ii) thereof is amended by (i)
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents"
and immediately before the words "and acts specifically
required" and (ii) inserting the words "or any
Refinancing Document" immediately after the words "or
any Financing Document" and immediately before the words
"; provided, however,".
-------- -------
17. Section 2(b)(1)(viii) thereof is amended by
(i) inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents"
and immediately before the words "or any terms or
provisions thereof" and (ii) inserting the words ", New
Funding Corporation" immediately after the words "by the
Lessee, Funding Corporation" and immediately before the
words "or the Loan Participants".
18. Section 2(b)(1)(ix) thereof is amended by (i)
inserting the words "New Funding Corporation,"
immediately after the words "the presence of Funding
Corporation," and immediately before the words "or any
successor or assign thereof", (ii) replacing the words
"or any successor or assign thereof" with the words "or
any successors or assigns thereof" and (iii) inserting
the words "and the Refinancing Documents" immediately
after the words "and the Financing Documents" and
immediately before the word", or".
19. Section 2(b)(1)(x) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents"
and immediately before the words "(including, without
limitation, the provisions".
20. Section 2(b)(1)(xiii) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words" or the Financing Documents"
and immediately before the words") of the trustee
thereof,".
21. Section 2(b)(2) thereof is amended by
inserting the words "or the Refinancing Documents" (i)
immediately after the words "or Financing Documents" and
immediately before the words "(whether or not" and (ii)
immediately after the words "or the Financing Documents"
and immediately before the words ") (any such loss,
disallowance,".
22. Section 5(a) thereof is amended by (i)
inserting the words ", the Retirement Premium Deduction,
the Refinancing Amortization Deductions" immediately
after the words "the Interest Deductions" and
immediately before the words "or the Amortization
Deductions" and (ii) inserting the words "or the
Refinancing Documents" immediately after the words "or
the Financing Documents" and immediately before the
semicolon.
23. Section 5(b) thereof is amended by inserting
the words ", the Retirement Premium Deduction, the
Refinancing Amortization Deductions" immediately after
the words "the Interest Deductions" and immediately
before the words "or the Amortization Deductions".
24. Section 5(e) thereof is amended by inserting
the words ", the Refinancing Agreement" immediately
after the words "under the Facility Lease" and
immediately before the words "or any Transaction
Document".
25. Section 5(g) thereof is amended by inserting
the words ", the Retirement Premium Deduction, the
Refinancing Amortization Deductions" immediately after
the words "the Interest Deductions" and immediately
before the words "or the Amortization Deductions".
26. Section 6(e) thereof is amended by inserting
the words "or any of the Refinancing Documents"
immediately after the words "any of the Transaction
Documents" and immediately before the words ", or if and
for so long".
IN WITNESS WHEREOF, the General Partners and the
Lessee have caused this Amendment No. 1 to Tax
Indemnification Agreement to be duly executed by their
respective officers thereunto duly authorized as of the date
set forth below.
OHIO EDISON COMPANY
By: \s\ T.F. Struck, II
---------------------------
Dated: November 5, 1992
BEAVER VALLEY TWO PI, INC.
By: \s\ David D. Elliman
---------------------------
Dated: November 5, 1992
PAROCK LIMITED PARTNERSHIP
By: \s\ David D. Elliman
---------------------------
Dated: November 5, 1992
I.E.1.
=============================================================
AMENDMENT NO. 2
dated as of September 30, 1994
to
CORRECTIVE
TAX INDEMNIFICATION AGREEMENT
dated as of September 15, 1987
between
HG POWER PLANT, INC.,
as Limited Partner
and
OHIO EDISON COMPANY,
as Lessee
=============================================================
Sale and Leaseback of an Undivided Interest in
Beaver Valley Power Station Unit 2
=============================================================
AMENDMENT NO. 2, dated as of September 30, 1994
("Amendment No. 2"), to the CORRECTIVE TAX INDEMNIFICATION
AGREEMENT, dated as of September 15, 1987, between HG POWER
PLANT, INC., a Delaware corporation (the "Limited Partner"),
and OHIO EDISON COMPANY, an Ohio corporation (the "Lessee")
as amended by Amendment No. 1 to the Corrective Tax
Indemnification Agreement dated as of November 5, 1992 (the
"Tax Indemnification Agreement"). Capitalized terms not
otherwise defined herein shall have the meaning set forth in
Appendix A to the Participation Agreement, dated as of
September 15, 1987, among the Beaver Valley Two Pi Limited
Partnership, the Original Loan Participants listed on
Schedule 1 thereto, BVPS Funding Corporation, The First
National Bank of Boston, Irving Trust Company and Ohio Edison
Company, as amended from time to time (the "Participation
Agreement") or Appendix A to the Refinancing Agreement, dated
as of October 30, 1992, among the Beaver Valley Two PI
Limited Partnership, BVPS Funding Corporation, BVPS II
Funding Corporation, The First National Bank of Boston, the
Bank of New York and Ohio Edison Company (the "Refinancing
Agreement").
W I T N E S S E T H:
-------------------
WHEREAS, the Limited Partner and the General
Partners have executed the Limited Partnership Agreement
pursuant to which the Limited Partner has acquired a limited
partnership interest in the Owner Participant, and the Owner
Participant and the Lessee have executed the Participation
Agreement pursuant to which the Owner Participant has caused
the Owner Trustee to purchase the Undivided Interest from the
Lessee;
WHEREAS, the Owner Trustee has executed the
Facility Lease pursuant to which the Owner Trustee has leased
the Undivided Interest to the Lessee;
WHEREAS, Section 3(d) of the Facility Lease
provides for an adjustment to Basic Rent and the Schedules of
Casualty Values, Specialty Casualty Values and Modified
Special Casualty Values in the event of a Tax Rate Change
which results in the marginal federal income tax rate
applicable to corporations ("Tax Rate") differing from the
rate assumed in the Pricing Assumptions as in effect on the
Closing Date;
WHEREAS, section 11(b)(1) of the Code, as amended
by the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-
66), increases the Tax Rate assumed to be applicable to the
Owner Participant in the Pricing Assumptions from 34% to 35%;
and
WHEREAS, the Lessor and Lessee have entered into
Lease Amendment No. 3 amending Schedules 1 through 4 of the
Facility Lease to reflect the increase in the Tax Rate.
WHEREAS, the Limited Partner and the Lessee have
heretofore executed the Tax Indemnification Agreement
providing for indemnification by the Lessee against the loss
of certain tax benefits;
WHEREAS, Section 7 of the Tax Indemnification
Agreement requires an adjustment to the Tax Assumptions to
reflect adjustments to Basic Rent pursuant to Section 3(d) of
the Facility Lease;
NOW, THEREFORE, in consideration of the premises
and of other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as
follows:
1. The Tax Indemnification Agreement is hereby
amended as follows:
(i) by replacing the words "Transaction
Documents or the Financing Documents or the
Refinancing Documents" or the words "Transaction
Documents, Financing Documents or the Refinancing
Documents" with the words "Transaction Documents,
the Financing Documents, the Refinancing Documents
or the Tax Rate Adjustment Transaction Documents"
throughout such Tax Indemnification Agreement,
except in Section 1(a)(13) thereof;
(ii) by replacing the words "Transaction
Documents and the Refinancing Documents" with the
words "Transaction Documents, the Refinancing
Documents and the Tax Rate Adjustment Transaction
Documents" throughout such Tax Indemnification
Agreement;
(iii) by replacing the words "Transaction
Documents and the Financing Documents and the
Refinancing Documents" with the words "Transaction
Documents, the Financing Documents, the Refinancing
Documents and the Tax Rate Adjustment Transaction
Documents" throughout such Tax Indemnification
Agreement;
(iv) by replacing the words "any Transaction
Document or any Financing Document or any
Refinancing Document" with the words "any
Transaction Document or any Financing Document or
any Refinancing Document or any Tax Rate Adjustment
Transaction Document" throughout such Tax
Indemnification Agreement;
(v) by replacing the words "any of the
Transaction Documents or any of the Financing
Documents" with the words "any of the Transaction
Documents or any of the Financing Documents or any
of the Tax Rate Adjustment Transaction Documents"
throughout such Tax Indemnification Agreement;
(vi) by replacing the words "Transaction
Documents, the Financing Documents, the Refinancing
Documents" with the words "Transaction Documents,
the Financing Documents, the Refinancing Documents,
the Tax Rate Adjustment Transaction Documents"
throughout such Tax Indemnification Agreement; and
(vii) by replacing the words "the Facility
Lease, the Refinancing Agreement or any Transaction
Document" with the words "the Facility Lease, the
Refinancing Agreement, any Transaction Document or
any Tax Rate Adjustment Transaction Document"
throughout such Tax Indemnification Agreement.
2. Section 1(a)(9) of the Tax Indemnification
Agreement is hereby amended in its entirety to read, as
follows:
The Owner Participant will be allowed current
deductions for amortization of the following amounts
(the "Amortization Deductions"): (i) an amount equal to
Transaction Expenses to the extent payable by the Owner
Participant pursuant to Section 14 of the Participation
Agreement computed on a straight-line basis over the
Basic Lease Term and (ii) an amount equal to the Tax
Rate Change Transaction Expenses payable on behalf of
the Owner Trustee pursuant to Section 5(a) of Amendment
No. 5 to the Participation Agreement dated the date
hereof, computed on a straight-line basis over the
period commencing on the Tax Rate Adjustment Date and
ending on the last day of the Basic Lease Term; and the
Limited Partner will be entitled to take its 99%
distributive share of the Amortization Deductions into
account in computing the consolidated federal income tax
liability of the Group.
3. Section 1(a)(13) of the Tax Indemnification
Agreement is hereby amended by (i) replacing the words "the
Transaction Documents or the Financing Documents or the
Refinancing Documents" with the words "the documents dated
the Tax Rate Adjustment Date delivered in connection with the
tax rate adjustment (the "Tax Rate Adjustment Transaction
Documents"), the Transaction Documents, the Financing
Documents or the Refinancing Documents", (ii) deleting the
word "and" immediately before clause (h) and replacing it
with "," and (iii) adding the following after clause (h), and
before the period:
"and (i) Supplemental Rent in the amount of the Tax
Rate Change Transaction Expenses payable under
Section 5(a) of Amendment No. 5 to the Participation
Agreement dated the date hereof".
4. Effective on and as of January 1, 1993, Section
1(a)(14) of the Tax Indemnification Agreement is hereby
amended in its entirety to read, as follows:
"The Limited Partner's marginal federal rate
of income tax is (i) 39.00% for its taxable year
ending January 31, 1988, (ii) 34% for each taxable
year thereafter through January 31, 1992,
(iii) 34.361831% for its taxable year ended January
31, 1993 and (iv) 35% for its taxable year ended
January 31, 1994 and each taxable year thereafter,
in each case without giving effect to any credits
against tax, and such marginal and effective rates
will be applicable to each item of income and
deduction contemplated by this section 1(a)."
5. Sections 1(b)(9) and 2(b)(1) of the Tax
Indemnification Agreement are amended by replacing "Sections
1(a)(13)(a)-(h)" with "Sections 1(a)(13)(a)-(i)" in each
place it appears.
6. Section 2(b)(1) of the Tax Indemnification
Agreement is amended by adding after "Lessee," as it appears
in subsection (xiv) of said Section 2(b)(1), the following:
"or (xv) any adjustment to Basic Rent or any
schedule pursuant to Section 3(d) of the Facility
Lease,"
7. Except as amended hereby, the Tax
Indemnification Agreement shall survive and continue in full
force and effect.
8. This Amendment No. 2 may be executed in any
number of counterparts (and each of the parties hereto shall
not be required to execute the same counterpart). Each
counterpart of this Amendment No. 2, including a signature
page executed by each of the parties hereto shall be an
original of this Amendment No. 2, but all of such
counterparts together shall constitute one instrument.
9. This Amendment No. 2 shall in all respects be
governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, the Limited Partner and the
Lessee have caused this Amendment No. 2 to the Tax
Indemnification Agreement to be duly executed as of the date
set forth above by their respective officers thereunto duly
authorized.
OHIO EDISON COMPANY
By \s\ T.F. Struck, II
--------------------------
Name: T.F. Struck, II
---------------------
Title: Assistant Treasurer
--------------------
HG POWER PLANT, INC.
By \s\ S. Ronald Stone
---------------------------
Name: S. Ronald Stone
---------------------
Title: Vice President
---------------------
<PAGE>
- -------------------------------------------------------------
AMENDMENT NO. 1
dated as of November 5, 1992
to
CORRECTIVE
TAX INDEMNIFICATION AGREEMENT
dated as of September 15, 1987
between
HG POWER PLANT, INC.,
as Limited Partner
and
OHIO EDISON COMPANY,
as Lessee
- -------------------------------------------------------------
Sale and Leaseback of an Undivided Interest in
Beaver Valley Nuclear Power Plant Unit 2
- -------------------------------------------------------------
AMENDMENT NO. 1, dated as of November 5, 1992, to
CORRECTIVE TAX INDEMNIFICATION AGREEMENT, dated as of
September 15, 1987, between HG POWER PLANT, INC., a Delaware
corporation (the "Limited Partner"), and OHIO EDISON COMPANY,
an Ohio corporation (the "Lessee"). Capitalized terms not
otherwise defined herein shall have the meaning set forth in
an Appendix A to the Participation Agreement, dated as of
September 15, 1987, among Beaver Valley Two Pi Limited
Partnership, the Original Loan Participants listed on
Schedule 1 thereto, BVPS Funding Corporation, The First
National Bank of Boston, Irving Trust Company and Ohio Edison
Company, as amended from time to time (the "Participation
Agreement"), or Appendix A to the Refinancing Agreement,
dated as of October 30, 1992, among Beaver Valley Two Pi
Limited Partnership, BVPS Funding Corporation, BVPS II
Funding Corporation, The First National Bank of Boston, the
Bank of New York, and Ohio Edison Company (the "Refinancing
Agreement").
WHEREAS, the Limited Partner and the General
Partners have executed the Limited Partnership Agreement
pursuant to which the Limited Partner has acquired a limited
partnership interest in the Owner Participant, and the Owner
Participant and the Lessee have executed the Participation
Agreement pursuant to which the Owner Participant has caused
the Owner Trustee to purchase the Undivided Interest from the
Lessee; and
WHEREAS, the Owner Trustee has executed the
Facility Lease pursuant to which the Owner Trustee has leased
the Undivided Interest to the Lessee; and
WHEREAS, the Lessee, the Owner Participant and the
Limited Partner desire to refinance the Fixed Rate Notes and
the Collateralized Lease Bonds and have entered into the
Refinancing Agreement; and
WHEREAS, the Limited Partner and the Lessee have
heretofore executed the Corrective Tax Indemnification
Agreement, dated as of September 15, 1987 (the "Tax
Indemnification Agreement"), and desire to amend the Tax
Indemnification Agreement as hereinafter provided to clarify
their respective rights and obligations arising from the
Refinancing.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
The Tax Indemnification Agreement is hereby
amended, effective upon the execution and delivery of this
Agreement, as follows:
1. The preamble thereof is amended by (i)
inserting the words ", as amended from time to time"
immediately after the words "and Ohio Edison Company" and
immediately before the words "(the "Participation
Agreement")" and (ii) inserting the words "or Appendix A to
the Refinancing Agreement, dated as of October 30, 1992,
among Beaver Valley Two Pi Limited Partnership, BVPS Funding
Corporation, BVPS II Funding Corporation, The First National
Bank of Boston, the Bank of New York, and the Lessee (the
"Refinancing Agreement")" immediately after the words "(the
"Participation Agreement")" and immediately before the period
ending the sentence.
2. Section 1(a)(10) thereof is amended by
inserting the words "the Retirement Premium Deduction, as
defined below, the Refinancing Amortization Deductions, as
defined below," immediately after the words "the Interest
Deductions," and immediately before the words "and the
Amortization Deductions".
3. Section 1(a)(12) thereof is amended by (i)
inserting the words "Except as otherwise provided in Section
5 of the Refinancing Agreement," immediately before the words
"Basic Rent will be paid on" and (ii) inserting the words
"Except as otherwise provided in Section 5 of the Refinancing
Agreement," immediately before the words "Basic Rent will be
payable in arrears".
4. Section 1(a)(13) thereof is amended (i) by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "other than (a) payment" and
(ii) by deleting in clause (b) thereof the words "six-month
period ending on each Basic Rent Payment Date," and replacing
them with the words "period to which each payment of Basic
Rent relates, as set forth in the Facility Lease,".
5. Section 1(a)(17) thereof is amended by
inserting the words "and the Refinancing Documents"
immediately after the words "the Transaction Documents" and
immediately before the words "using the accrual method".
6. Section 1(a)(18) thereof is amended by
inserting the words "and the Refinancing Documents"
immediately after the words "and the Financing Documents" and
immediately before the words ", as derived from or allocable
to".
7. Section 1(a) thereof is amended by adding the
following tax assumptions at the end of said Section 1(a):
"(19) The Owner Participant will be allowed a
deduction for 100 percent of the premium paid with
respect to the Purchased Notes and the Purchased Bonds
in the taxable year of the Owner Participant in which
such premium is paid (the "Retirement Premium
Deduction"); and the Limited Partner will be entitled to
take its 99% distributive share of the Retirement
Premium Deduction into account in computing the
consolidated federal income tax liability of the Group.
(20) The Owner Participant will be allowed current
deductions for amortization of an amount equal to the
Refinancing Transaction Expenses to the extent payable by
the Owner Trustee pursuant to Section 15(a) of the
Refinancing Agreement computed on a straight-line basis
from the Purchase Date to the end of the Basic Lease Term
(the "Refinancing Amortization Deductions"); and the
Limited Partner will be entitled to take its 99%
distributive share of the Refinancing Amortization
Deductions into account in computing the consolidated
federal income tax liability of the Group."
8. Section 1(b)(8) thereof is amended by
inserting the words "the Retirement Premium Deduction, the
Refinancing Amortization Deductions" immediately after the
words "the Interest Deductions," and immediately before the
words "and the Amortization Deductions".
9. Section 1(b)(9) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "other than the amounts
described".
10. Section 1(b)(10) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "as derived from or allocable
to".
11. Section 1(b)(19) thereof is amended by
inserting the words "the Retirement Premium Deduction, the
Refinancing Amortization Deductions," immediately after the
words "the Interest Deductions," and immediately before the
words "the Amortization Deductions,".
12. Section 1(b)(21) thereof is amended (i) by
inserting the words "and will not throughout the term of the
Facility Lease" immediately after the words "does not" and
immediately before the words "legally, beneficially or
constructively" and (ii) by inserting the words "or New
Funding Corporation" immediately after the words "or Funding
Corporation" and immediately before the words "or any Holder
of Bonds".
13. Section 1(b)(22) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the period ending the sentence.
14. Section 2(b)(1) thereof is amended by (i)
inserting the words ", the Retirement Premium Deduction, the
Refinancing Amortization Deductions," immediately after the
words "the Interest Deductions" and immediately before the
words "or the Amortization Deductions" and (ii) inserting the
words "the Refinancing Documents" immediately after the words
"or the Financing Documents" and immediately before the words
"other than the amounts".
15. Section 2(b)(1)(i) thereof is amended by (i)
inserting the words ", the Refinancing Documents" immediately
after the words "the Financing Documents" and immediately
before the words "or any certificate or other document" and
(ii) inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the word ", or".
16. Section 2(b)(1)(ii) thereof is amended by (i)
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "and acts specifically required"
and (ii) inserting the words "or any Refinancing Document"
immediately after the words "or any Financing Document" and
immediately before the words "; provided, however,".
-------- -------
17. Section 2(b)(1)(viii) thereof is amended by
(i) inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "or any terms or provisions
thereof" and (ii) inserting the words ", New Funding
Corporation" immediately after the words "by the Lessee,
Funding Corporation" and immediately before the words "or the
Loan Participants".
18. Section 2(b)(1)(ix) thereof is amended by (i)
inserting the words "New Funding Corporation," immediately
after the words "the presence of Funding Corporation," and
immediately before the words "or any successor or assign
thereof", (ii) replacing the words "or any successor or
assign thereof" with the words "or any successors or assigns
thereof" and (iii) inserting the words "and the Refinancing
Documents" immediately after the words "and the Financing
Documents" and immediately before the word ", or".
19. Section 2(b)(1)(x) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "(including without limitation
the provisions".
20. Section 2(b)(1)(xiii) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words ") of the trustee thereof,".
21. Section 2(b)(2) thereof is amended by
inserting the words "or the Refinancing Documents" (i)
immediately after the words "or Financing Documents" and
immediately before the words "(whether or not" and (ii)
immediately after the words "or the Financing Documents" and
immediately before the words ") (any such loss,
disallowance,".
22. Section 5(a) thereof is amended by (i)
inserting the words ", the Retirement Premium Deduction, the
Refinancing Amortization Deductions" immediately after the
words "the Interest Deductions" and immediately before the
words "or the Amortization Deductions" and (ii) inserting the
words "or the Refinancing Documents" immediately after the
words "or the Financing Documents" and immediately before the
semicolon.
23. Section 5(b) thereof is amended by inserting
the words ", the Retirement Premium Deduction, the
Refinancing Amortization Deductions," immediately after the
words "the Interest Deductions" and immediately before the
words "or the Amortization Deductions".
24. Section 5(e) thereof is amended by inserting
the words ", the Refinancing Agreement" immediately after the
words "under the Facility Lease" and immediately before the
words "or any Transaction Document".
25. Section 5(g) thereof is amended by inserting
the words ", the Retirement Premium Deduction, the
Refinancing Amortization Deductions" immediately after the
words "the Interest Deductions" and immediately before the
words "or the Amortization Deductions".
26. Section 6(e) thereof is amended by inserting
the words "or any of the Refinancing Documents" immediately
after the words "any of the Transaction Documents" and
immediately before the words ", or if and for so long".
IN WITNESS WHEREOF, the Limited Partner and the
Lessee have caused this Amendment No. 1 to Tax
Indemnification Agreement to be duly executed by their
respective officers thereunto duly authorized as of the date
set forth below.
OHIO EDISON COMPANY
By \s\ T.F. Struck, II
-----------------------
Dated: November 5, 1992
HG POWER PLANT, INC.
By \s\ S. Ronald Stone
------------------------
Dated: November 5, 1992
I.E.1.
=============================================================
AMENDMENT NO. 2
dated as of September 30, 1994
to
CORRECTIVE
TAX INDEMNIFICATION AGREEMENT
dated as of September 15, 1987
between
HG POWER PLANT, INC.,
as Limited Partner
and
OHIO EDISON COMPANY,
as Lessee
=============================================================
Sale and Leaseback of an Undivided Interest in
Beaver Valley Power Station Unit 2
=============================================================
AMENDMENT NO. 2, dated as of September 30, 1994
("Amendment No. 2"), to the CORRECTIVE TAX INDEMNIFICATION
AGREEMENT, dated as of September 15, 1987, between HG POWER
PLANT, INC., a Delaware corporation (the "Limited Partner"),
and OHIO EDISON COMPANY, an Ohio corporation (the "Lessee")
as amended by Amendment No. 1 to the Corrective Tax
Indemnification Agreement dated as of November 5, 1992 (the
"Tax Indemnification Agreement"). Capitalized terms not
otherwise defined herein shall have the meaning set forth in
Appendix A to the Participation Agreement, dated as of
September 15, 1987, among the Beaver Valley Two Pi Limited
Partnership, the Original Loan Participants listed on
Schedule 1 thereto, BVPS Funding Corporation, The First
National Bank of Boston, Irving Trust Company and Ohio Edison
Company, as amended from time to time (the "Participation
Agreement") or Appendix A to the Refinancing Agreement, dated
as of October 30, 1992, among the Beaver Valley Two PI
Limited Partnership, BVPS Funding Corporation, BVPS II
Funding Corporation, The First National Bank of Boston, the
Bank of New York and Ohio Edison Company (the "Refinancing
Agreement").
W I T N E S S E T H:
-------------------
WHEREAS, the Limited Partner and the General
Partners have executed the Limited Partnership Agreement
pursuant to which the Limited Partner has acquired a limited
partnership interest in the Owner Participant, and the Owner
Participant and the Lessee have executed the Participation
Agreement pursuant to which the Owner Participant has caused
the Owner Trustee to purchase the Undivided Interest from the
Lessee;
WHEREAS, the Owner Trustee has executed the
Facility Lease pursuant to which the Owner Trustee has leased
the Undivided Interest to the Lessee;
WHEREAS, Section 3(d) of the Facility Lease
provides for an adjustment to Basic Rent and the Schedules of
Casualty Values, Specialty Casualty Values and Modified
Special Casualty Values in the event of a Tax Rate Change
which results in the marginal federal income tax rate
applicable to corporations ("Tax Rate") differing from the
rate assumed in the Pricing Assumptions as in effect on the
Closing Date;
WHEREAS, section 11(b)(1) of the Code, as amended
by the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-
66), increases the Tax Rate assumed to be applicable to the
Owner Participant in the Pricing Assumptions from 34% to 35%;
and
WHEREAS, the Lessor and Lessee have entered into
Lease Amendment No. 3 amending Schedules 1 through 4 of the
Facility Lease to reflect the increase in the Tax Rate.
WHEREAS, the Limited Partner and the Lessee have
heretofore executed the Tax Indemnification Agreement
providing for indemnification by the Lessee against the loss
of certain tax benefits;
WHEREAS, Section 7 of the Tax Indemnification
Agreement requires an adjustment to the Tax Assumptions to
reflect adjustments to Basic Rent pursuant to Section 3(d) of
the Facility Lease;
NOW, THEREFORE, in consideration of the premises
and of other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as
follows:
1. The Tax Indemnification Agreement is hereby
amended as follows:
(i) by replacing the words "Transaction
Documents or the Financing Documents or the
Refinancing Documents" or the words "Transaction
Documents, Financing Documents or the Refinancing
Documents" with the words "Transaction Documents,
the Financing Documents, the Refinancing Documents
or the Tax Rate Adjustment Transaction Documents"
throughout such Tax Indemnification Agreement,
except in Section 1(a)(13) thereof;
(ii) by replacing the words "Transaction
Documents and the Refinancing Documents" with the
words "Transaction Documents, the Refinancing
Documents and the Tax Rate Adjustment Transaction
Documents" throughout such Tax Indemnification
Agreement;
(iii) by replacing the words "Transaction
Documents and the Financing Documents and the
Refinancing Documents" with the words "Transaction
Documents, the Financing Documents, the Refinancing
Documents and the Tax Rate Adjustment Transaction
Documents" throughout such Tax Indemnification
Agreement;
(iv) by replacing the words "any Transaction
Document or any Financing Document or any
Refinancing Document" with the words "any
Transaction Document or any Financing Document or
any Refinancing Document or any Tax Rate Adjustment
Transaction Document" throughout such Tax
Indemnification Agreement;
(v) by replacing the words "any of the
Transaction Documents or any of the Financing
Documents" with the words "any of the Transaction
Documents or any of the Financing Documents or any
of the Tax Rate Adjustment Transaction Documents"
throughout such Tax Indemnification Agreement;
(vi) by replacing the words "Transaction
Documents, the Financing Documents, the Refinancing
Documents" with the words "Transaction Documents,
the Financing Documents, the Refinancing Documents,
the Tax Rate Adjustment Transaction Documents"
throughout such Tax Indemnification Agreement; and
(vii) by replacing the words "the Facility
Lease, the Refinancing Agreement or any Transaction
Document" with the words "the Facility Lease, the
Refinancing Agreement, any Transaction Document or
any Tax Rate Adjustment Transaction Document"
throughout such Tax Indemnification Agreement.
2. Section 1(a)(9) of the Tax Indemnification
Agreement is hereby amended in its entirety to read, as
follows:
The Owner Participant will be allowed current
deductions for amortization of the following amounts
(the "Amortization Deductions"): (i) an amount equal to
Transaction Expenses to the extent payable by the Owner
Participant pursuant to Section 14 of the Participation
Agreement computed on a straight-line basis over the
Basic Lease Term and (ii) an amount equal to the Tax
Rate Change Transaction Expenses payable on behalf of
the Owner Trustee pursuant to Section 5(a) of Amendment
No. 5 to the Participation Agreement dated the date
hereof, computed on a straight-line basis over the
period commencing on the Tax Rate Adjustment Date and
ending on the last day of the Basic Lease Term; and the
Limited Partner will be entitled to take its 99%
distributive share of the Amortization Deductions into
account in computing the consolidated federal income tax
liability of the Group.
3. Section 1(a)(13) of the Tax Indemnification
Agreement is hereby amended by (i) replacing the words "the
Transaction Documents or the Financing Documents or the
Refinancing Documents" with the words "the documents dated
the Tax Rate Adjustment Date delivered in connection with the
tax rate adjustment (the "Tax Rate Adjustment Transaction
Documents"), the Transaction Documents, the Financing
Documents or the Refinancing Documents", (ii) deleting the
word "and" immediately before clause (h) and replacing it
with "," and (iii) adding the following after clause (h), and
before the period:
"and (i) Supplemental Rent in the amount of the Tax
Rate Change Transaction Expenses payable under
Section 5(a) of Amendment No. 5 to the Participation
Agreement dated the date hereof".
4. Effective on and as of January 1, 1993, Section
1(a)(14) of the Tax Indemnification Agreement is hereby
amended in its entirety to read, as follows:
"The Limited Partner's marginal federal rate
of income tax is (i) 39.00% for its taxable year
ending January 31, 1988, (ii) 34% for each taxable
year thereafter through January 31, 1992,
(iii) 34.361831% for its taxable year ended January
31, 1993 and (iv) 35% for its taxable year ended
January 31, 1994 and each taxable year thereafter,
in each case without giving effect to any credits
against tax, and such marginal and effective rates
will be applicable to each item of income and
deduction contemplated by this section 1(a)."
5. Sections 1(b)(9) and 2(b)(1) of the Tax
Indemnification Agreement are amended by replacing "Sections
1(a)(13)(a)-(h)" with "Sections 1(a)(13)(a)-(i)" in each
place it appears.
6. Section 2(b)(1) of the Tax Indemnification
Agreement is amended by adding after "Lessee," as it appears
in subsection (xiv) of said Section 2(b)(1), the following:
"or (xv) any adjustment to Basic Rent or any
schedule pursuant to Section 3(d) of the Facility
Lease,"
7. Except as amended hereby, the Tax
Indemnification Agreement shall survive and continue in full
force and effect.
8. This Amendment No. 2 may be executed in any
number of counterparts (and each of the parties hereto shall
not be required to execute the same counterpart). Each
counterpart of this Amendment No. 2, including a signature
page executed by each of the parties hereto shall be an
original of this Amendment No. 2, but all of such
counterparts together shall constitute one instrument.
9. This Amendment No. 2 shall in all respects be
governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, the Limited Partner and the
Lessee have caused this Amendment No. 2 to the Tax
Indemnification Agreement to be duly executed as of the date
set forth above by their respective officers thereunto duly
authorized.
OHIO EDISON COMPANY
By \s\ T.F. Struck, II
--------------------------
Name: T.F. Struck, II
---------------------
Title: Assistant Treasurer
--------------------
HG POWER PLANT, INC.
By \s\ S. Ronald Stone
---------------------------
Name: S. Ronald Stone
---------------------
Title: Vice President
---------------------
[EXECUTION COPY]
- -----------------------------------------------------------------
- -----------------------------------------------------------------
AMENDMENT NO. 5
dated as of January 12, 1993
to
PARTICIPATION AGREEMENT
dated as of September 15, 1987, as
corrected and restated,
and amended by the Amendment No. 1 thereto
dated as of February 1, 1988,
the Amendment No. 2 thereto
dated as of March 15, 1988,
the Amendment No. 3 thereto
dated as of March 16, 1988,
Amendment No. 4 thereto dated as of
November 5, 1992
among
CHRYSLER CONSORTIUM CORPORATION,
as Owner Participant
BVPS FUNDING CORPORATION,
BVPS II FUNDING CORPORATION,
THE FIRST NATIONAL BANK OF BOSTON,
in its individual capacity and
as Owner Trustee under a Trust Agreement
dated as of September 15, 1987
with the Owner Participant,
THE BANK OF NEW YORK,
as Indenture Trustee
and
OHIO EDISON COMPANY,
as Lessee
- -----------------------------------------------------------------
- -----------------------------------------------------------------
Refinancing of the Fixed Rate Notes
Relating to the Beaver Valley Power Station Unit No. 2
________________________________________________________________
THIS AMENDMENT NO. 5, dated as of January 12, 1993
("Amendment No. 5"), to the Participation Agreement dated as of
---------------
September 15, 1987, as corrected and restated and as amended by
Amendment No. 1 thereto dated as of February 1, 1988, Amendment
No. 2 dated as of March 15, 1988, and Amendment No. 3 dated as of
March 16, 1988 and Amendment No. 4 dated as of November 5, 1992
and as in effect on the date hereof (the "Participation
-------------
Agreement"), among the Owner Participant identified on the cover
- ---------
page hereof ("Owner Participant"), BVPS FUNDING CORPORATION, a
-----------------
Delaware corporation ("Funding Corporation"), BVPS II FUNDING
-------------------
CORPORATION, a Delaware corporation ("New Funding Corporation"),
-----------------------
THE FIRST NATIONAL BANK OF BOSTON, a national banking
association, in its individual capacity ("FNB") and as Owner
---
Trustee ("Owner Trustee") under a Trust Agreement, dated as of
-------------
September 15, 1987, with the Owner Participant, THE BANK OF NEW
YORK (formerly Irving Trust Company), a New York banking
corporation, in its individual capacity ("Bank of New York") and
----------------
as Indenture Trustee ("Indenture Trustee") under a Trust
-----------------
Indenture, Mortgage, Security Agreement and Assignment of
Facility Lease dated as of September 15, 1987, as corrected and
restated and as supplemented and amended by the Supplemental
Indenture No. 1 dated as of February 1, 1988, and Supplemental
Indenture No. 2 dated as of November 1, 1992 and Supplemental
Indenture No. 3 dated as of January 1, 1993 ("Indenture"), with
---------
the Owner Trustee, and OHIO EDISON COMPANY, an Ohio corporation
("Lessee"),
------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Owner Participant, Funding Corporation, the
Owner Trustee, the Indenture Trustee and the Lessee have
previously entered into the Participation Agreement;
WHEREAS, the Initial Series Notes which were issued by the
Owner Trustee in connection with the acquisition of the Undivided
Interest have been refunded;
WHEREAS, the parties hereto desire to permit the repurchase
of all of the 11% Fixed Rate Notes due December 1, 2015 ("11%
Notes") and the remaining 9.9% Notes due December 1,
---------
1999 ("9.9% Notes") heretofore issued and Outstanding
----------
simultaneously with the issuance of Additional Notes on January
12, 1993 (the "Purchase Date") to New Funding Corporation;
-------------
WHEREAS, Section 3(e) of the Facility Lease provides for an
adjustment to Basic Rent and to the schedules of Casualty Values,
Special Casualty Values and Modified Special Casualty Values in
order to preserve the Net Economic Return of the Owner
Participant in the event of the refunding of the Fixed Rate
Notes;
WHEREAS, Section 10.1(viii) of the Indenture provides, among
other things, that the Owner Trustee and Indenture Trustee may,
without consent of the Holders of the Fixed Rate Notes
Outstanding, execute a supplement to the Indenture in order to
evidence the issuance of and to provide the terms of Additional
Notes;
WHEREAS, the Owner Trustee and the Indenture Trustee intend
to execute Supplemental Indenture No. 3 to the Indenture, dated
as of January 1, 1993 ("Supplemental Indenture No. 3"),
----------------------------
providing for the issuance under the Indenture of the New Fixed
Rate Notes as defined in Supplemental Indenture No. 3;
WHEREAS, Section 10.2(ii) of the Indenture provides, among
other things, that, upon receipt of a written instruction from
the Lessee and the Owner Trustee, the Indenture Trustee shall
consent to certain amendments to the Facility Lease;
WHEREAS, the Owner Trustee and the Lessee intend to execute
Amendment No. 3 to the Facility Lease, dated as of January 12,
1993 ("Lease Amendment No. 3"), to amend certain
---------------------
provisions and schedules thereof and Appendix A thereto;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions. Except as otherwise amended
-----------
or defined herein and in the recitals, capitalized terms used
herein shall have the respective meanings assigned to such terms
in Appendix A to the Participation Agreement.
SECTION 2. Amendments. a.Section 8(a)(7) of the
----------
Participation Agreement is amended in its entirety to read as
follows:
"Location of the Chief Place of Business and Chief
------------------------------------------------
Executive Office, etc. The chief place of business and
---------------------
chief executive office of FNB and the office where its
records concerning the accounts or contract rights relating
to the transaction contemplated hereby are kept is located
in Boston, Massachusetts and the chief place of business and
chief executive office of the Corporate Trust Division of
the Owner Trustee is located in Canton, Massachusetts."
b. Section 8(b) of the Participation Agreement is amended
as follows:
(i) by replacing the reference to "and (6)" in the
first line thereof with a reference to ", (6), and (7)"; and
(i) by inserting the following new clause (7):
"(7) Administration of Trust. The principal
-----------------------
place of administration of the Trust shall be in
Massachusetts."
a. Section 18(a)(ii) of the Participation Agreement is
amended to read in its entirety as follows:
"if FNB, or the Owner Trustee, by regular mail, to the
First National Bank of Boston, Corporate Trust Division,
Mail Stop 45-02-15, P.O. Box 1618, Boston, Massachusetts
02105-1618, Attention: Manager, Corporate Trust Division
(Reference: Ohio Edison-Perry Leveraged Lease), or if by
hand delivery or courier delivery, to the First National
Bank of Boston, Corporate Trust Division, Blue Hill Office
Park, Mail Stop 45-02-15, 150 Royall Street, Canton,
Massachusetts 02021 (telecopy number 617-575-2078),
Attention: Manager, Corporate Trust Division (Reference:
Ohio Edison-Perry Leveraged Lease);"
a. Appendix A to the Participation Agreement is amended as
follows:
(i) by restating the definition of "Additional
----------
Assumptions" to read in its entirety as follows:
-----------
"'Additional Assumptions' shall mean the
----------------------
additional pricing assumptions set forth on Schedule 2
to Amendment No. 5 to the Participation Agreement."
(ii) by deleting the definition "Amended
-------
Assumptions" and all references thereto.
-----------
(i) by restating the definition of Pricing
Assumptions to read in its entirety as follows:
"'Pricing Assumptions' shall mean the Pricing
-------------------
Assumptions set forth in Schedule 5 to the
Participation Agreement and the Additional
Assumptions."
(iv) by restating the definition of "Refinancing
-----------
Documents" as follows:
---------
"'Refinancing Documents' shall mean those
---------------------
documents, instruments, and agreements delivered in
connection with any refinancing of the Notes."
(v) by inserting the following definitions in the
appropriate alphabetical order:
"'Amendment No. 5 to the Participation
------------------------------------
Agreement' shall mean Amendment No. 5 to the
---------
Participation Agreement dated as of January 12, 1993
among the Owner Participant, Funding Corporation, New
Funding Corporation, the Owner Trustee, the Indenture
Trustee and the Lessee.
'1993 Refinancing Agreement' shall mean that
--------------------------
certain Refinancing Agreement, dated as of January 1,
1993 among the Owner Participant, Funding Corporation,
New Funding Corporation, The First National Bank of
Boston, The Bank of New York and Ohio Edison Company."
SECTION 3. New Funding Corporation. Subject to the
-----------------------
terms and conditions hereof and of Sections 2(d) and 11(c) of the
Participation Agreement, on the Purchase Date, New Funding
Corporation shall make a Refunding Loan to the Owner Trustee by
paying to the Indenture Trustee in immediately available funds an
amount equal to $141,474,000.
------------
SECTION 4. Issuance of New Fixed Rate Notes by Owner
-----------------------------------------
Trustee; Application of Proceeds. Subject to the terms and
- --------------------------------
conditions hereof and of Sections 2(d) and 11(c) of the
Participation Agreement and Section 3.5 of the Indenture, on the
Purchase Date, upon receipt of the Refunding Loan to be made by
New Funding Corporation in accordance with Section 3 hereof, the
Indenture Trustee, at the direction of the Owner Trustee, shall:
(a) authenticate and deliver the New Fixed Rate Notes, in the
aggregate principal amount of the Refunding Loan and bearing
interest at the rates per annum and in the amounts, respectively,
set forth in, or determinable under, Supplemental Indenture No.
3; and (b) apply the proceeds of the Refunding Loan and other
funds received hereunder and under the Refinancing Agreement to
the purchase and prepayment (in full) of the principal of and the
accrued interest and premium on the refunded 11% and 9.9% Notes
as directed by the Owner Trustee.
SECTION 5 Implementation.
--------------
a. Forms. The forms of Supplemental Indenture No. 3
-----
and Lease Amendment No. 3 are attached hereto as Exhibits A and
B, respectively.
a. Request by the Owner Participant. In accordance
--------------------------------
with Section 2.01 of the Trust Agreement subject to the terms and
conditions of Section 11(c) of the Participation Agreement, the
Owner Participant hereby directs that the Owner Trustee (i)
execute and deliver this Amendment No. 5, Supplemental Indenture
No. 3 and Lease Amendment No. 3 (collectively, the "1993
----
Amendments"), (ii) execute the New Fixed Rate Notes and request
- ----------
the Indenture Trustee to authenticate and deliver the New Fixed
Rate Notes pursuant to Section 3.5(2) of the Indenture, and (iii)
execute and deliver all other agreements, instruments and
certificates contemplated by the Transaction Documents, the
Financing Documents, the Refinancing Documents, and the 1993
Amendments.
(c) Instruction and Consent. In accordance with
-----------------------
Section 10.2 of the Indenture, the Lessee and the Owner Trustee
hereby instruct the Indenture Trustee to consent to Lease
Amendment No. 3 and the Indenture Trustee hereby so consents. In
accordance with Section 10.1 of the Indenture, the Owner Trustee
and the Indenture Trustee hereby consent and agree to execute
Supplemental Indenture No. 3.
d. Consent of Lessee. In accordance with Section
-----------------
8(b)(2) of the Participation Agreement, the Lessee hereby
consents to the refunding of the 11% and 9.9% Notes.
e. Recordations and Filings. The Lessee agrees that
------------------------
it will cause to be made the recordations and filings set forth
in Schedule 1 hereto and that such filings and recordations are
all the recordations and filings that are necessary in order to
preserve, protect and perfect the Owner Trustee's rights and
interests under the Facility Lease, as amended by Amendment Nos.
1, 2 and 3 thereto, and the first and prior security interest of
the Indenture Trustee in the Lease Indenture Estate under the
Indenture, as amended by Supplemental Indentures Nos. 1, 2 and 3
thereto.
SECTION 6. Conditions To Effectiveness. This
---------------------------
Amendment No. 5 shall become effective as of the date first above
written if, by and as of the Purchase Date: (a) it shall have
been duly executed and delivered by all of the parties hereto and
all of the conditions set forth below in this Section 6 shall
have been satisfied (the date of such satisfaction being referred
to as the "Effective Date"); (b) the Owner Participant shall have
--------------
received a duly executed and delivered, legal, valid, and binding
Lease Amendment No. 3 and Amendment No. 2 to the Tax
Indemnification Agreement; (c) the Maximum Drawing Amounts (as
defined in the Letter of Credit) shall have been adjusted
pursuant to Section 4(e) of the Letter of Credit to correspond to
the Modified Special Casualty Values, as adjusted on the date
hereof; (d) all conditions referred to in Section 14 of the 1993
Refinancing Agreement shall have been satisfied; and (e) no
Default, Event of Default, Event of Loss, Deemed Loss Event,
Reimbursement Default, Reimbursement Event of Default, Indenture
Default or Indenture Event of Default shall have occurred and be
continuing.
SECTION 7. Expenses. (a) On the Purchase Date, the
--------
costs and expenses of the Owner Participant (including legal fees
and disbursements of the Owner Participant's counsel), the Owner
Trustee, the Indenture Trustee and the Issuing Bank with respect
to the execution and delivery of this Amendment No. 5 and the
transactions contemplated herein shall be paid in accordance with
the provisions of Section 16 of the 1993 Refinancing Agreement.
(b) Notwithstanding anything in this Section 9 or in
Section 14 of the Participation Agreement to the contrary, in the
event the transactions contemplated by this Amendment No. 5 shall
not be consummated for any reason, the Lessee shall pay or cause
to be paid, and shall indemnify and hold harmless the Indenture
Trustee, the Owner Trustee, the Owner Participant, Funding
Corporation and New Funding Corporation in respect of all costs
and expenses of such parties including legal fees and
disbursements of their counsel related to this Amendment No. 5,
and the 1993 Refinancing Agreement and the transactions
contemplated hereby and thereby.
SECTION 8. Miscellaneous.
-------------
(a) Execution. This Amendment No. 5 may be executed in
---------
any number of counterparts and by different parties hereto on
separate counterparts, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall
together constitute but one and the same instrument. Although
this Amendment No. 5 is dated as of the date first above written
for convenience (and once it becomes effective shall have effect
from such date), the actual dates of execution hereof by the
parties hereto are respectively the dates set forth under the
signatures hereto, and this Amendment No. 5 shall not be
effective until all such signatures shall have been duly affixed
and all conditions precedent set forth in Section 6 hereof shall
have been satisfied. This Amendment No. 5 amends and modifies
the Participation Agreement and is to be read with and form part
of the Participation Agreement. On and from the Effective Date,
any reference in any Transaction Document to the Participation
Agreement shall be deemed to refer to the Participation Agreement
as amended and modified by Amendment No. 1 thereto, dated as of
February 1, 1988, Amendment No. 2 thereto, dated as of March 15,
1988, Amendment No. 3 thereto, dated as of March 16, 1988,
Amendment No. 4 dated as of November 5, 1992, and this Amendment
No. 5.
(b) Non-Waiver or Amendment. The agreements contained
-----------------------
in this Amendment shall not, except as expressly provided in this
Amendment, operate as a waiver of any right, power or remedy of
any party under any Transaction Document, nor constitute, except
as expressly provided in this Amendment, a waiver of any
provision of any Transaction Document.
(c) Governing Law. This Amendment No. 5 has been
-------------
negotiated and delivered in the State of New York and shall be
governed by, and be construed in accordance with, the laws of the
State of New York.
(d) Responsibility for Recitals. The recitals
---------------------------
contained herein shall be taken as the statements of the Lessee,
and the other parties hereto assume no responsibility for the
correctness of the same.
IN WITNESS WHEREOF, intending to be legally bound, each of
the parties hereto has caused this Amendment No. 5 to the
Participation Agreement to be duly executed by its respective
officers thereunto duly authorized as of the dates set forth
below.
BVPS FUNDING CORPORATION
By:\s\ M.A. Ferrucci
------------------------------
Name:M.A. Ferrucci
------------------------------
Title:Vice President
------------------------------
Date: January 12, 1993
---------------------------
BVPS II FUNDING CORPORATION
By: \s\ Laurie A. Sullivan
------------------------------
Name: Laurie A. Sullivan
------------------------------
Title: Vice President
------------------------------
Date: January 12, 1993
----------------------------
THE FIRST NATIONAL BANK OF BOSTON, in
its individual capacity and as Owner
Trustee under a Trust Agreement dated as
of September 15, 1987 with the Owner
participant
By: \s\ J.E. Mogavero
------------------------------
Name: J.E. Mogavero
------------------------------
Title: Vice-President
--------------------------
Date: January 12, 1993
---------------------------
THE BANK OF NEW YORK, in its individual
capacity and as Indenture Trustee under
a Trust Indenture, Mortgage, Security
Agreement and Assignment of Facility
Lease dated as of September 15, 1987, as
corrected and amended with The First
National Bank of Boston in its
individual capacity and as Owner Trustee
under a Trust Agreement dated as of
September 15, 1987 with the Owner
Participant
By: \s\ W.T. Cunningham
----------------------------
Name: W.T Cunnignham
----------------------------
Title: Vice President
----------------------------
Date: January 12, 1993
--------------------------
OHIO EDISON COMPANY, as Lessee
By: \s\ T.F. Struck, II
---------------------------
Name: T.F. Struck, II
----------------------------
Title: Assistant Treasurer
---------------------------
Date: January 12, 1993
--------------------------
CHRYSLER CONSORTIUM CORPORATION
By: \s\ Richard G. Neptune
------------------------------
Name: Richard G. Neptune
------------------------------
Title: Vice President
---------------------------
Date: January 12, 1993
----------------------------
EXHIBIT A
---------
=================================================================
SUPPLEMENTAL INDENTURE NO. 3
Dated as of January 1, 1993
To
TRUST INDENTURE, MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT
OF FACILITY LEASE
Dated as of September 15, 1987
between
THE FIRST NATIONAL BANK OF BOSTON, not in its indi-
vidual capacity, but solely as Owner Trustee under
a Trust Agreement dated as of September 15, 1987
with CHRYSLER CONSORTIUM CORPORATION
and
THE BANK OF NEW YORK,
as Indenture Trustee
=================================================================
BEAVER VALLEY POWER STATION UNIT NO. 2
=================================================================
SUPPLEMENTAL INDENTURE NO. 3, dated as of January 1, 1993
(the "Supplemental Indenture No. 3"), to Trust Indenture,
Mortgage, Security Agreement and Assignment of Facility Lease
dated as of September 15, 1987 (the "Original Indenture"),
between THE FIRST NATIONAL BANK OF BOSTON, a national banking
association ("FNB"), whose address is Corporate Trust Division,
Blue Hill Office Park, Mail Stop 45-02-15, 150 Royall Street,
Canton, Massachusetts 02021, not in its individual capacity, but
solely as Owner Trustee (the "Owner Trustee") under a Trust
Agreement dated as of September 15, 1987, with CHRYSLER
CONSORTIUM CORPORATION and THE BANK OF NEW YORK, a New York
banking corporation (the "Indenture Trustee"), whose address is
101 Barclay Street, New York, New York 10286.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Owner Trustee and the Indenture Trustee have
entered into Supplemental Indenture No. 1, dated as of February
1, 1988 (the "Supplemental Indenture No. 1"), to the Original
Indenture pursuant to which the Owner Trustee has issued Fixed
Rate Notes (the "Fixed Rate Notes");
WHEREAS, Section 3.5(1) of the Indenture provides, among
other things, that the Fixed Rate Notes may be refunded with
Additional Notes;
WHEREAS, the Owner Trustee and the Indenture Trustee have
entered into a Supplemental Indenture, dated as of November 1,
1992, to the Original Indenture (the "Supplemental Indenture No.
2"; the Original Indenture as amended by Supplemental Indenture
No. 1 and Supplemental Indenture No. 2, the "Indenture") pursuant
to which the Owner Trustee has issued Additional Notes to refund
certain of the Fixed Rate Notes;
WHEREAS, Section 3.5(4) of the Indenture provides, among
other things, that the Owner Trustee and the Indenture Trustee
may enter into indentures supplemental to the Indenture for,
among other things, the purpose of establishing the terms,
conditions and designations of Additional Notes;
WHEREAS, the Owner Trustee desires to issue Additional Notes
to effect the prepayment of the outstanding Fixed Rate Notes
issued pursuant to Supplemental Indenture No. 1 and to enter into
this Supplemental Indenture No. 3 to establish the terms,
conditions and designations of such Additional Notes; and
WHEREAS, Section 10.1(viii) of the Indenture provides that,
without the consent of Holders of the Notes Outstanding, the
Indenture Trustee may, with the written consent of the Owner
Trustee, from time to time and at any time, execute a supplement
to the Indenture in order to evidence the issuance of, and to
provide the terms of, Additional Notes;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions.
-----------
For the purposes hereof, capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to
such terms in Appendix A attached to the Indenture.
SECTION 2. Terms, Conditions and Designations of the
-----------------------------------------
Additional Notes.
- ----------------
(a) The Additional Notes.
--------------------
There is hereby created and established a separate series of
Notes of the Owner Trustee designated "Nonrecourse Promissory
Notes, Fixed Rate Series 1993", herein referred to as the "New
Fixed Rate Notes". The New Fixed Rate Notes shall be payable as
to principal and bear interest on the principal amount thereof as
follows:
Original Principal
New Fixed Rate Note Due Interest Rate Amount
- ----------------------- ------------- ------------------
December 1, 2000 7.67% $ 22,340,000
June 1, 2015 8.68% $119,134,000
The New Fixed Rate Note due December 1, 2000 shall be
substantially in the form of Exhibit A-1 to this Supplemental
Indenture No. 3. The New Fixed Rate Note due June 1, 2015 shall
be substantially in the form of Exhibit A-2 to this Supplemental
Indenture No. 3. Each New Fixed Rate Note shall bear interest on
the principal amount thereof from time to time Outstanding from
the Issue Date designated thereon until paid at the rate of
interest set forth therein, which interest shall be payable on
June 1, 1993 and, on each June 1 and December 1 thereafter to and
including the maturity date thereof, unless paid in full prior to
such date as provided herein and in such New Fixed Rate Note.
The principal amount of each New Fixed Rate Note shall be payable
on the dates and in the amounts as set forth in Schedule 1
attached thereto, as such Schedule may be adjusted from time to
time in accordance with the terms hereof and of such New Fixed
Rate Note. Installments of interest on and principal of (and
premium, if any, on) each New Fixed Rate Note shall be due and
payable on the payment dates specified in Schedule 1 attached
thereto.
Each New Fixed Rate Note shall be subject to prepayment
as set forth in such New Fixed Rate Note.
(b) Certain Adjustments to Amortization Schedules.
---------------------------------------------
The schedule of principal amortization attached to
the New Fixed Rate Notes may be adjusted at the discretion of the
Owner Trustee; provided, however, that no such adjustment shall
-------- -------
be made by the Owner Trustee which will increase or reduce the
average life of such New Fixed Rate Note (calculated in
accordance with generally accepted financial practice) from the
date of initial issuance by more than eighteen months; provided
--------
further, however, such adjustment may be made only in connection
- -------
with a recalculation of Basic Rent pursuant to the Facility
Lease. If the Owner Trustee shall elect to make the foregoing
adjustment, the Owner Trustee shall deliver to the Indenture
Trustee and to the Lessee at least 60 days prior to the first
payment date (specified on the schedule to such New Fixed Rate
Note) proposed to be affected by such adjustment, a certificate
of the Owner Trustee (x) stating that the Owner Trustee has
elected to make such adjustment, (y) setting forth the revised
schedule of principal amortization for such New Fixed Rate Note
and (z) attaching calculations showing that the average life of
such New Fixed Rate Note will not be reduced or increased except
as permitted by this paragraph (b). The Indenture Trustee may
rely on such Owner Trustee certificate and shall have no duty
with respect to the calculations referred to in the foregoing
clause (z).
SECTION 3. Miscellaneous.
-------------
(a)Execution.
---------
This Supplemental Indenture No. 3 may be executed
in any number of counterparts and by the different parties hereto
on separate counterparts, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall
together constitute but one and the same instrument. Although
this Supplemental Indenture No. 3 is dated as of the date first
above written for convenience, the actual dates of execution
hereof by the parties hereto are respectively the dates set forth
under the signatures hereto, and this Supplemental Indenture No.
3 shall be effective on the latest of such dates.
(b)Execution as Supplemental Indenture.
-----------------------------------
This Supplemental Indenture No. 3 is executed and
shall be construed as an indenture supplemental to the Indenture
and, as provided in the Indenture, this Supplemental Indenture
No. 3 forms a part thereof.
(c)Responsibility for Recitals, Etc.
---------------------------------
The recitals contained herein and in the New Fixed
Rate Notes, except the Indenture Trustee's certificate of
authentication, shall be taken as the statements of the Owner
Trustee, and the Indenture Trustee assumes no responsibility for
the correctness of the same. The Indenture Trustee makes no
representation as to the validity or sufficiency of this
Supplemental Indenture No. 3 or the New Fixed Rate Notes.
(d)Provisions Binding on Successors.
--------------------------------
All the covenants, stipulations, promises and
agreements in this Supplemental Indenture No. 3 contained by or
on behalf of the Owner Trustee shall bind its successors and
assigns, whether so expressed or not.
(e)New York Contract.
-----------------
This Supplemental Indenture No. 3 and each New
Fixed Rate Note shall be deemed to be a contract under the laws
of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said state.
IN WITNESS WHEREOF, the Owner Trustee and the
Indenture Trustee have each caused this Supplemental Indenture
No. 3 to be duly executed by their respective officers thereunto
duly authorized, all as of the date first set forth above.
THE FIRST NATIONAL BANK OF BOSTON,
not in its individual capacity, but
solely as Owner Trustee under the Trust Agreement dated
as of September 15, 1987, with CHRYSLER CONSORTIUM
CORPORATION
By: _______________________________
Name:
Title:
Date: January 12, 1993
THE BANK OF NEW YORK
as Indenture Trustee
By: _______________________________
Name: W.T. Cunningham
Title: Vice President
Date: January 12, 1993
<PAGE>
The address of the within named Indenture Trustee
is:
The Bank of New York
101 Barclay Street
New York, New York 10286
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this, the 12th day of January, 1993, before me,
a Notary Public in and for said County and State, personally
appeared __________________, who acknowledged himself to be a
__________________ of THE FIRST NATIONAL BANK OF BOSTON, and that
he as such officer, being authorized to do so, executed the
foregoing instrument for the purposes therein contained by
signing the name of the National Banking Association by himself
as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
______________________________
Notary Public
[NOTARIAL SEAL]My Commission Expires:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this, the 12th day of January, 1993, before me,
a Notary Public in and for said County and State, personally
appeared W.T. Cunningham, who acknowledged himself to be a Vice
President of THE BANK OF NEW YORK, and that he as such officer,
being authorized to do so, executed the foregoing instrument for
the purposes therein contained by signing the name of the New
York banking corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
______________________________
Notary Public
[NOTARIAL SEAL]My Commission Expires:
DECEMBER 1, 2000
Beaver Valley Two Sigma Limited Partnership
EXHIBIT A-1
TO SUPPLEMENT NO. 3
FORM OF NEW FIXED RATE NOTE
(DUE DECEMBER 1, 2000)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED,
SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT
NONRECOURSE PROMISSORY NOTE, FIXED RATE SERIES 1993
(DUE DECEMBER 1, 2000)
Issued at: New York, New York
Issue Date: January 12, 1993
FOR VALUE RECEIVED, THE FIRST NATIONAL BANK OF
BOSTON, not in its individual capacity, but solely as Owner
Trustee (Owner Trustee) under a Trust Agreement dated as of
September 15, 1987 with Beaver Valley Two Sigma Limited
Partnership (the Owner Participant), hereby promises to pay to
BVPS II FUNDING CORPORATION, or registered assigns, the principal
sum of One Million Five Hundred Fifty-Seven Thousand Dollars
($1,557,000), such payment to be made in the amounts and on the
dates specified in Schedule 1 hereto, as such Schedule 1 may be
revised in accordance herewith; and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the
aggregate amount of such principal sum remaining unpaid from time
to time from the date of this New Fixed Rate Note until due and
payable, semiannually in arrears on June 1 and December 1 in each
year, commencing June 1, 1993, at the rate of 7.67% per annum,
until the principal hereof is paid in full.
Capitalized terms used in this New Fixed Rate Note
which are not otherwise defined herein shall have the meanings
ascribed thereto in the Indenture (as hereinafter defined).
In the event any date on which a payment is due
under this New Fixed Rate Note is not a Business Day, then
payment thereof may be made on the next succeeding Business Day
with the same force and effect as if made on the date on which
such payment was due and no interest in respect of such payment
shall accrue for the period from and after such due date.
All payments of principal, and premium, if any, and
interest to be made by the Owner Trustee hereunder and under the
Trust Indenture, Mortgage, Security Agreement and Assignment of
Facility Lease dated as of September 15, 1987, as at any time
heretofore or hereafter amended or supplemented in accordance
with the provisions thereof (the Indenture), between the Owner
Trustee and The Bank of New York, as Trustee (the Indenture
Trustee), shall be made only from the Lease Indenture Estate and
the Trust Estate, and the Owner Trustee shall have no obligation
for the payment thereof except to the extent that the Owner
Trustee shall have sufficient income or proceeds from the Lease
Indenture Estate to make such payments in accordance with the
terms of Article V of the Indenture. The Holder hereof, by its
acceptance of this New Fixed Rate Note, agrees that such Holder
will look solely to the Trust Estate and the income and proceeds
from the Lease Indenture Estate to the extent available for
distribution to the Holder hereof as above provided, and that
neither the Owner Participant nor, except as expressly provided
in the Indenture, the Owner Trustee, nor the Indenture Trustee is
or shall be personally liable to the Holder hereof for any
amounts payable under this New Fixed Rate Note or for any
performance to be rendered under the Indenture or any other
Transaction Document or for any liability thereunder; provided,
however, that in the event the Lessee shall assume all the
obligations of the Owner Trustee hereunder and under the
Indenture pursuant to Section 3.9(b) of the Indenture, then all
the payments to be made under this New Fixed Rate Note shall be
made only from payments made by the Lessee under this New Fixed
Rate Note in accordance with the Assumption Agreement referred to
in said Section 3.9(b) and the Holder of this New Fixed Rate Note
agrees that in such event it will look solely to the Lessee for
such payment and, subject to Section 2.4 of the Indenture, to the
Lease Indenture Estate.
Principal, and premium, if any, and interest shall
be payable in immediately available funds in such coin or
currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and
private debts, in the manner provided in the Indenture, on
presentment of this New Fixed Rate Note at the Indenture
Trustee's Office, or as otherwise provided in the Indenture.
In the manner and to the extent provided in the
Indenture, Schedule 1 hereto may be adjusted at the discretion of
the Owner Trustee in connection with an adjustment to Basic Rent
under the Facility Lease.
In the event of any partial prepayment of this New
Fixed Rate Note (other than pursuant to the payment of principal
in accordance with Schedule 1 hereto), the principal amount of
this New Fixed Rate Note to be paid thereafter pursuant to
Schedule 1 hereto shall be adjusted proportionately; provided
that, all such adjustments shall be rounded to the nearest
$1,000, and shall be subject to necessary further adjustment so
that the total amount of such reduction is equal to the total
principal amount of this New Fixed Rate Note which is prepaid. In
connection with such adjustments the Owner Trustee shall deliver
to the Indenture Trustee, not later than 60 days prior to the
next date on which a payment of principal of this New Fixed Rate
Note is due following such partial prepayment, a revised Schedule
1 hereto. The Indenture Trustee may rely on such revised
Schedule 1 and shall have no duty with respect to the adjustments
set forth therein other than to make it available for inspection
by the Holder of this Note.
The Holder hereof, by its acceptance of this New
Fixed Rate Note, agrees that each payment received by it
hereunder shall be applied in the manner set forth in Section
3.11 of the Indenture. The Holder of this New Fixed Rate Note
agrees, by its acceptance hereof, that it will duly note by
appropriate means all payments of principal or interest made
hereon and that it will not in any event transfer or otherwise
dispose of this New Fixed Rate Note unless and until all such
notations have been duly made.
This New Fixed Rate Note is one of the New Fixed
Rate Notes referred to in the Indenture. The Indenture permits
the issuance of additional series of Notes, as provided in
Section 3.5 of the Indenture, and the several series may be for
varying aggregate principal amounts and may have different
maturity dates, interest rates, redemption provisions and other
terms. The properties of the Owner Trustee included in the Lease
Indenture Estate are pledged to the Indenture Trustee to the
extent provided in the Indenture as security for the payment of
the principal of and premium, if any, and interest on this New
Fixed Rate Note and all other Notes issued and outstanding from
time to time under the Indenture. Reference is hereby made to
the Indenture for a statement of the rights of the Holder of, and
the nature and extent of the security for, this New Fixed Rate
Note and of the rights of, and the nature and extent of the
security for, the Holders of the other Notes and of certain
rights of the Owner Trustee, as well as for a statement of the
terms and conditions of the trust created by the Indenture, to
all of which terms and conditions the Holder hereof agrees by its
acceptance of this New Fixed Rate Note.
This New Fixed Rate Note is subject to purchase by
the Owner Trustee as provided in Section 6.8(b) of the Indenture
and to mandatory prepayment in full as provided in Section 5.2 of
the Indenture, such prepayment being without premium but
including accrued interest to the date of prepayment. This New
Fixed Rate Note is not otherwise prepayable prior to the
scheduled maturity date hereof.
In case an Indenture Event of Default shall occur
and be continuing, the unpaid balance of the principal of this
New Fixed Rate Note and any other Notes, together with all
accrued but unpaid interest thereon, may, subject to certain
rights of the Owner Trustee and the Owner Participant contained
or referred to in the Indenture, be declared or may become due
and payable in the manner and with the effect provided in the
Indenture.
The lien upon the Lease Indenture Estate is subject
to being legally discharged prior to the maturity of this New
Fixed Rate Note upon the deposit with the Indenture Trustee of
cash or certain securities sufficient to pay this New Fixed Rate
Note when due in accordance with the terms of the Indenture.
There shall be maintained at the Indenture
Trustee's Office a register for the purpose of registering
transfers and exchanges of Notes in the manner provided in the
Indenture. The transfer of this New Fixed Rate Note is
registrable, as provided in the Indenture, upon surrender of this
New Fixed Rate Note for registration of transfer duly accompanied
by a written instrument of transfer duly executed by or on behalf
of the registered Holder hereof, together with the amount of any
applicable transfer taxes. The Owner Trustee and the Indenture
Trustee may treat the person in whose name this New Fixed Rate
Note is registered as the owner hereof for the purpose of
receiving payments of principal of and premium, if any, and
interest on this New Fixed Rate Note and for all other purposes
whatsoever, whether or not this New Fixed Rate Note be overdue,
and neither the Owner Trustee nor the Indenture Trustee shall be
affected by notice to the contrary.
This New Fixed Rate Note shall be governed by, and
construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the Owner Trustee has caused
this New Fixed Rate Note to be duly executed as of the date
hereof.
THE FIRST NATIONAL BANK OF
BOSTON, not in its individual
capacity, but solely as Owner
Trustee under a Trust Agreement
dated as of September 15, 1987
with Beaver Valley Two Sigma
Limited Partnership
By_______________________________
Name:
Title:
This Note is one of the series of Notes referred to
therein and in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Indenture Trustee
By________________________________
Name: W.T. Cunningham
Title: Vice President
7.67% Due 2000
Chrysler Consortium Corporation
SCHEDULE 1
TO THE NEW FIXED RATE NOTE
(DUE DECEMBER 1, 2000)
Schedule of Principal Amortization
Principal Principal
Payment Date Amount Payable Balance
- ------------------------- -------------- -----------
June 1, 1993 1,028,000 21,312,000
December 1, 1993 0 21,312,000
June 1, 1994 986,000 20,326,000
December 1, 1994 1,575,000 18,751,000
June 1, 1995 1,086,000 17,665,000
December 1, 1995 1,709,000 15,956,000
June 1, 1996 1,239,000 14,717,000
December 1, 1996 1,854,000 12,863,000
June 1, 1997 4,000 12,859,000
December 1, 1997 4,000 12,855,000
June 1, 1998 2,995,000 9,860,000
December 1, 1998 2,913,000 6,947,000
June 1, 1999 2,252,000 4,695,000
December 1, 1999 1,000 4,694,000
June 1, 2000 2,303,000 2,391,000
December 1, 2000 2,391,000 0
-------------
22,340,000
ASSIGNMENT
Date:
January 12, 1993
For value received, BVPS II FUNDING CORPORATION hereby sells,
assigns and transfers to THE BANK OF NEW YORK as Collateral Trust
Trustee pursuant to the Collateral Trust Indenture dated as of
November 1, 1992, among BVPS II FUNDING CORPORATION, OHIO EDISON
COMPANY and said Collateral Trust Trustee, as heretofore
supplemented, without recourse, the New Fixed Rate Note to which
this Assignment is annexed and all rights thereunder.
BVPS II
FUNDING CORPORATION
By ______________________
Name:
Title:
JUNE 1, 2015
Chrysler Consortium Corporation
EXHIBIT A-2
TO SUPPLEMENT NO. 3
FORM OF NEW FIXED RATE NOTE
(DUE JUNE 1, 2015)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED,
SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT
NONRECOURSE PROMISSORY NOTE, FIXED RATE SERIES 1993
(DUE JUNE 1, 2015)
Issued at: New York, New York
Issue Date: January 12, 1993
FOR VALUE RECEIVED, THE FIRST NATIONAL BANK OF BOSTON, not in
its individual capacity, but solely as Owner Trustee (Owner
Trustee) under a Trust Agreement dated as of September 15, 1987
with Chrysler Consortium Corporation (the Owner Participant),
hereby promises to pay to BVPS II FUNDING CORPORATION, or
registered assigns, the principal sum of One Hundred Nineteen
Million One Hundred Thirty-Four Thousand Dollars ($119,134,000),
such payment to be made in the amounts and on the dates specified
in Schedule 1 hereto, as such Schedule 1 may be revised in
accordance herewith; and to pay interest (computed on the basis
of a 360-day year of twelve 30-day months) on the aggregate
amount of such principal sum remaining unpaid from time to time
from the date of this New Fixed Rate Note until due and payable,
semiannually in arrears on June 1 and December 1 in each year,
commencing June 1, 1993, at the rate of 8.68% per annum, until
the principal hereof is paid in full.
Capitalized terms used in this New Fixed Rate Note which are
not otherwise defined herein shall have the meanings ascribed
thereto in the Indenture (as hereinafter defined).
In the event any date on which a payment is due under this
New Fixed Rate Note is not a Business Day, then payment thereof
may be made on the next succeeding Business Day with the same
force and effect as if made on the date on which such payment was
due and no interest in respect of such payment shall accrue for
the period from and after such due date.
All payments of principal, and premium, if any, and interest
to be made by the Owner Trustee hereunder and under the Trust
Indenture, Mortgage, Security Agreement and Assignment of
Facility Lease dated as of September 15, 1987, as at any time
heretofore or hereafter amended or supplemented in accordance
with the provisions thereof (the Indenture), between the Owner
Trustee and The Bank of New York, as Trustee (the Indenture
Trustee), shall be made only from the Lease Indenture Estate and
the Trust Estate, and the Owner Trustee shall have no obligation
for the payment thereof except to the extent that the Owner
Trustee shall have sufficient income or proceeds from the Lease
Indenture Estate to make such payments in accordance with the
terms of Article V of the Indenture. The Holder hereof, by its
acceptance of this New Fixed Rate Note, agrees that such Holder
will look solely to the Trust Estate and the income and proceeds
from the Lease Indenture Estate to the extent available for
distribution to the Holder hereof as above provided, and that
neither the Owner Participant nor, except as expressly provided
in the Indenture, the Owner Trustee, nor the Indenture Trustee is
or shall be personally liable to the Holder hereof for any
amounts payable under this New Fixed Rate Note or for any
performance to be rendered under the Indenture or any other
Transaction Document or for any liability thereunder; provided,
however, that in the event the Lessee shall assume all the
obligations of the Owner Trustee hereunder and under the
Indenture pursuant to Section 3.9(b) of the Indenture, then all
the payments to be made under this New Fixed Rate Note shall be
made only from payments made by the Lessee under this New Fixed
Rate Note in accordance with the Assumption Agreement referred to
in said Section 3.9(b) and the Holder of this New Fixed Rate Note
agrees that in such event it will look solely to the Lessee for
such payment and, subject to Section 2.4 of the Indenture, to the
Lease Indenture Estate.
Principal, and premium, if any, and interest shall be payable
in immediately available funds in such coin or currency of the
United States of America as at the time of payment shall be legal
tender for the payment of public and private debts, in the manner
provided in the Indenture, on presentment of this New Fixed Rate
Note at the Indenture Trustee's Office, or as otherwise provided
in the Indenture.
In the manner and to the extent provided in the Indenture,
Schedule 1 hereto may be adjusted at the discretion of the Owner
Trustee in connection with an adjustment to Basic Rent under the
Facility Lease.
In the event of any partial prepayment of this New Fixed Rate
Note (other than pursuant to the payment of principal in
accordance with Schedule 1 hereto), the principal amount of this
New Fixed Rate Note to be paid thereafter pursuant to Schedule 1
hereto shall be adjusted proportionately; provided that, all such
adjustments shall be rounded to the nearest $1,000, and shall be
subject to necessary further adjustment so that the total amount
of such reduction is equal to the total principal amount of this
New Fixed Rate Note which is prepaid. In connection with such
adjustments the Owner Trustee shall deliver to the Indenture
Trustee, not later than 60 days prior to the next date on which a
payment of principal of this New Fixed Rate Note is due following
such partial prepayment, a revised Schedule 1 hereto. The
Indenture Trustee may rely on such revised Schedule 1 and shall
have no duty with respect to the adjustments set forth therein
other than to make it available for inspection by the Holder of
this Note.
The Holder hereof, by its acceptance of this New Fixed Rate
Note, agrees that each payment received by it hereunder shall be
applied in the manner set forth in Section 3.11 of the Indenture.
The Holder of this New Fixed Rate Note agrees, by its acceptance
hereof, that it will duly note by appropriate means all payments
of principal or interest made hereon and that it will not in any
event transfer or otherwise dispose of this New Fixed Rate Note
unless and until all such notations have been duly made.
This New Fixed Rate Note is one of the New Fixed Rate Notes
referred to in the Indenture. The Indenture permits the issuance
of additional series of Notes, as provided in Section 3.5 of the
Indenture, and the several series may be for varying aggregate
principal amounts and may have different maturity dates, interest
rates, redemption provisions and other terms. The properties of
the Owner Trustee included in the Lease Indenture Estate are
pledged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and
premium, if any, and interest on this New Fixed Rate Note and all
other Notes issued and outstanding from time to time under the
Indenture. Reference is hereby made to the Indenture for a
statement of the rights of the Holder of, and the nature and
extent of the security for, this New Fixed Rate Note and of the
rights of, and the nature and extent of the security for, the
Holders of the other Notes and of certain rights of the Owner
Trustee, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and
conditions the Holder hereof agrees by its acceptance of this New
Fixed Rate Note.
This New Fixed Rate Note is subject to purchase by the Owner
Trustee as provided in Section 6.8(b) of the Indenture and to
mandatory prepayment in full as provided in Section 5.2 of the
Indenture, such prepayment being without premium but including
accrued interest to the date of prepayment. This New Fixed Rate
Note is not otherwise prepayable prior to the scheduled maturity
date hereof.
In case an Indenture Event of Default shall occur and be
continuing, the unpaid balance of the principal of this New Fixed
Rate Note and any other Notes, together with all accrued but
unpaid interest thereon, may, subject to certain rights of the
Owner Trustee and the Owner Participant contained or referred to
in the Indenture, be declared or may become due and payable in
the manner and with the effect provided in the Indenture.
The lien upon the Lease Indenture Estate is subject to being
legally discharged prior to the maturity of this New Fixed Rate
Note upon the deposit with the Indenture Trustee of cash or
certain securities sufficient to pay this New Fixed Rate Note
when due in accordance with the terms of the Indenture.
There shall be maintained at the Indenture Trustee's Office a register
for the purpose of registering transfers and exchanges of Notes
in the manner provided in the Indenture. The transfer of this
New Fixed Rate Note is registrable, as provided in the Indenture,
upon surrender of this New Fixed Rate Note for registration of
transfer duly accompanied by a written instrument of transfer
duly executed by or on behalf of the registered Holder hereof,
together with the amount of any applicable transfer taxes. The
Owner Trustee and the Indenture Trustee may treat the person in
whose name this New Fixed Rate Note is registered as the owner
hereof for the purpose of receiving payments of principal of and
premium, if any, and interest on this New Fixed Rate Note and for
all other purposes whatsoever, whether or not this New Fixed Rate
Note be overdue, and neither the Owner Trustee nor the Indenture
Trustee shall be affected by notice to the contrary.
This New Fixed Rate Note shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the Owner Trustee has caused this New
Fixed Rate Note to be duly executed as of the date hereof.
THE FIRST NATIONAL BANK OF
BOSTON, not in its individual
capacity, but solely as Owner
Trustee under a Trust Agreement
dated as of September 15, 1987
with Chrysler Consortium
Corporation
By_______________________________
Name:
Title:
This Note is one of the series of Notes referred to
therein and in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Indenture Trustee
By________________________________
Name: W.T. Cunningham
Title: Vice President
8.68% Due 2015
Chrysler Consortium Corporation
SCHEDULE 1
TO THE NEW FIXED RATE NOTE
(DUE JUNE 1, 2015)
Schedule of Principal Amortization
Principal Principal
Payment Date Amount Payable Balance
------------ -------------- ---------
June 1, 2001 32,000 119,102,000
December 1,2001 2,133,000 116,969,000
June 1, 2002 2,531,000 114,438,000
December 1,2002 2,853,000 111,585,000
June 1, 2003 3,280,000 108,305,000
December 1,2003 3,703,000 104,602,000
June 1, 2004 3,084,000 101,518,000
December 1,2004 3,573,000 97,945,000
June 1, 2005 2,888,000 95,057,000
December 1,2005 3,354,000 91,703,000
June 1, 2006 2,681,000 89,022,000
December 1,2006 3,117,000 85,905,000
June 1, 2007 2,811,000 83,094,000
December 1,2007 3,233,000 79,861,000
June 1, 2008 3,009,000 76,852,000
December 1,2008 3,451,000 73,401,000
June 1, 2009 3,284,000 70,117,000
December 1,2009 3,760,000 66,357,000
June 1, 2010 3,521,000 62,836,000
December 1,2010 4,037,000 58,799,000
June 1, 2011 3,769,000 55,030,000
December 1,2011 4,324,000 50,706,000
June 1, 2012 5,865,000 44,841,000
December 1,2012 6,730,000 38,111,000
June 1, 2013 7,152,000 30,959,000
December 1,2013 7,463,000 23,496,000
June 1, 2014 7,909,000 15,587,000
December 1,2014 8,252,000 7,335,000
June 1, 2015 7,335,000 0
-----------
119,134,000
ASSIGNMENT
Date: January 12, 1993
For value received, BVPS II FUNDING CORPORATION hereby
sells, assigns and transfers to THE BANK OF NEW YORK as Collateral Trust
Trustee pursuant to the Collateral Trust Indenture dated as of November
1, 1992, among BVPS II FUNDING CORPORATION, OHIO EDISON COMPANY and said
Collateral Trust Trustee, as heretofore supplemented, without recourse,
the New Fixed Rate Note to which this Assignment is annexed and all
rights thereunder.
BVPS II FUNDING CORPORATION
By ______________________________
Name:
Title:
EXHIBIT B TO
AMENDMENT NO. 5 TO
THE PARTICIPATION
AGREEMENT
[FORM OF AMENDMENT NO. 3 TO CHRYSLER FACILITY LEASE]
SCHEDULE 1 TO
AMENDMENT NO. 5 TO
THE PARTICIPATION AGREEMENT
Filings and Recordations to be Made by Lessee
---------------------------------------------
A. Prothonotary, Beaver County, Pennsylvania:
(i) A financing statement on form UCC-1 naming the Owner Trustee,
as debtor, and the Indenture Trustee, as secured party, in respect of
the Lease Indenture Estate.
B. Secretary of Commonwealth, Pennsylvania:
(i) A financing statement on form UCC-1 naming the Lessee, as
lessee, the Owner Trustee, as lessor, and the Indenture Trustee, as
assignee of the Owner Trustee, in respect of the Facility Lease;
(ii) A financing statement on form UCC-l naming the Owner Trustee,
as debtor, and the Indenture Trustee, as secured party, in respect of
the Lease Indenture Estate.
C. County Recorder, Summit County, Ohio:
(i) A financing statement on form UCC-1 naming the Lessee, as
lessee, the Owner Trustee, as lessor, and the Indenture Trustee, as
assignee of the Owner Trustee, in respect of the Facility Lease; and
(ii) A financing statement on form UCC-1 naming the Owner Trustee,
as debtor, and the Indenture Trustee, as secured party, in respect of
the Lease Indenture Estate.
D. Secretary of State, Ohio:
(i) A financing statement on form UCC-1 naming the Lessee, as
lessee, the Owner Trustee, as lessor, and the Indenture Trustee, as
assignee of the Owner Trustee, in respect of the Facility Lease; and
(ii) A financing statement on form UCC-1 naming the Owner Trustee,
as debtor, and the Indenture Trustee, as secured party, in respect of
the Lease Indenture Estate.
E. Commonwealth of Massachusetts, Suffolk County:
(i) A financing statement on form UCC-1 naming the Owner Trustee,
as debtor, and the Indenture Trustee, as secured party, in respect of
the Lease Indenture Estate.
SCHEDULE 2 TO
AMENDMENT NO. 5 TO THE
PARTICIPATION AGREEMENT
ADDITIONAL PRICING ASSUMPTIONS
------------------------------
A. The following additional pricing assumptions were
used in connection with the November 5, 1992 refinancing:
SEE ABC FILE OHIOED-CR-FIN2 5-NOV-1992 11:50:13.68
(A HARD COPY OF WHICH IS RETAINED IN THE FILES OF OWNER
PARTICIPANT, LESSEE and their respective counsel and
McMANUS & MILES)
1. In addition for the generation of casualty value schedules,
the following input shall be used:
Casualty Value - Report 9*
- --------------
Added days return (question 22.5):0
Added residual (question 22.7):20%
Added residual discount rate (question 22.7.1):8.89%
Column 2, Heading "Full TV (TV + Add Exp + Add Resid)"
Special Casualty Values - Report 9*
- -----------------------
Added days return (question 22.5):0
Added residual (question 22.7):10%
Added residual discount rate (question 22.7.1):8.89%
Column 2, Heading "Full TV (TV + Add Exp + Add Resid)"
Modified Special Casualty Value - Report 9*
- -------------------------------
Added days return (question 22.5):0
Added residual (question 22.7):0%
Added residual discount rate (question 22.7.1):8.89%
Column 8 Heading "Full TV + Rent - Loan Bal Before DS"
"CALL DATE FILE" SHALL MEAN THE FILE NAMED OHIOED-CR-CALL2 HAVING
A PRESENT VALUE OF RENTS OF 93.15338.
* FEE INCLUDED IN YIELD CALCULATION FOR PURPOSES OF THIS
REPORT.
SCHEDULE 2 TO
AMENDMENT NO. 5 TO THE
PARTICIPATION AGREEMENT
B. The following additional pricing assumptions were
used in connection with the January 12, 1993 Call Date
Refinancing:
SEE ABC FILE OHIOED-CALL-FIN 11-JAN-1993 12:57:03.00
Date/time last modified 11-Jan-1993 11:18:28.00
(A HARD COPY OF WHICH IS RETAINED IN THE FILES OF OWNER
PARTICIPANT, LESSEE and their respective counsel and
McMANUS & MILES)
1. In addition for the generation of casualty value schedules,
the following input shall be used:
Casualty Value - Report 9*
- --------------
Added days return (question 22.5):0
Added residual (question 22.7):20%
Added residual discount rate (question 22.7.1) :8.89%
Column 2, Heading "Full TV (TV + Add Exp + Add Resid)"
Special Casualty Values - Report 9*
- -----------------------
Added days return (question 22.5):0
Added residual (question 22.7):10%
Added residual discount rate (question 22.7.1):8.89%
Column 2, Heading "Full TV (TV + Add Exp + Add Resid)"
Modified Special Casualty Value - Report 9*
- -------------------------------
Added days return (question 22.5):0
Added residual (question 22.7):0%
Added residual discount rate (question 22.7.1):8.89%
Column 8 Heading "Full TV + Rent - Loan Bal Before DS"
* FEE INCLUDED IN YIELD CALCULATION FOR PURPOSES OF THIS
REPORT.
I.C.6
-----
___________________________________________________
___________________________________________________
AMENDMENT NO. 6
dated as of September 30, 1994
to
PARTICIPATION AGREEMENT
dated as of September 15, 1987, as
corrected and restated,
and amended by the Amendment No. 1 thereto
dated as of February 1, 1988,
Amendment No. 3 thereto
dated as of March 16, 1988,
Amendment No. 4 thereto dated as of
November 5, 1992 and
Amendment No. 5 thereto dated as of January 12, 1993
among
CHRYSLER CONSORTIUM CORPORATION,
as Owner Participant
BVPS FUNDING CORPORATION,
BVPS II FUNDING CORPORATION,
THE FIRST NATIONAL BANK OF BOSTON,
in its individual capacity and
as Owner Trustee under a Trust Agreement
dated as of September 15, 1987,
as corrected and restated,
with the Owner Participant,
THE BANK OF NEW YORK,
as Indenture Trustee
and OHIO EDISON COMPANY,
as Lessee
___________________________________________________
___________________________________________________
THIS AMENDMENT NO. 6 dated as of September 30, 1994
("Amendment No. 6") to the Participation Agreement dated as
---------------
of September 15, 1987, as corrected and restated and as amended
by Amendment No. 1 thereto dated as of February 1, 1988,
Amendment No. 3 dated as of March 16, 1988, Amendment No. 4 dated
as of November 5, 1992, and Amendment No. 5 dated as of January
12, 1993 and as in effect on the date hereof (the "Participation
-------------
Agreement")1/, among the Owner
- ---------
Participant identified on the cover page hereof (the "Owner
-----
Participant"), BVPS FUNDING CORPORATION, a Delaware
- -----------
corporation ("Funding Corporation"), BVPS II FUNDING
-------------------
CORPORATION, a Delaware corporation ("New Funding
-----------
Corporation"), THE FIRST NATIONAL BANK OF BOSTON, a national
- -----------
banking association, in its individual capacity ("FNB") and
---
as Owner Trustee (the "Owner Trustee") under a Trust
-------------
Agreement, dated as of September 15, 1987, as corrected and
restated with the Owner Participant, THE BANK OF NEW YORK
(formerly Irving Trust Company), a New York banking corporation,
in its individual capacity ("Bank of New York")
----------------
and as Indenture Trustee (the "Indenture Trustee") under a
-----------------
Trust Indenture, Mortgage, Security Agreement and Assignment of
Facility Lease, dated as of September 15, 1987, as corrected and
restated and as supplemented and amended by the Supplemental
Indenture No. 1 dated as of February 1, 1988, and Supplemental
Indenture No. 2 dated as of November 1, 1992, and Supplemental
Indenture No. 3 dated as of January 1, 1993 (the "Indenture"),
with the Owner Trustee, and OHIO
-------------
EDISON COMPANY, an Ohio corporation (the "Lessee"),
------
W I T N E S S E T H :
-------------------
WHEREAS, the Owner Participant, Funding Corporation,
New Funding Corporation, the Owner Trustee, the Indenture Trustee
and the Lessee have previously entered into the Participation
Agreement; and
WHEREAS, Funding Corporation desires to cease to be a
party to the Participation Agreement; and
- ----------------------------------------
1. Amendment No.2, a copy of which is dated as of March 15,
1988, to the Participation Agreement was not entered into or
executed by the parties.
WHEREAS, Section 3(d) of the Facility Lease provides
for an adjustment to Basic Rent and to the schedules of Casualty
Values, Special Casualty Values and Modified Special Casualty
Values in order to preserve the Net Economic Return of the Owner
Participant in the event, among other things, of any Tax Rate
Change occurring prior to the twentieth anniversary of the
Closing Date, which results in the change in the Tax Rate from
the rate assumed in the Pricing Assumptions as in effect on the
Closing Date; and
WHEREAS, Section 2(e) of the Participation Agreement
provides that, subject to the satisfaction of the conditions set
forth in Sections 2(d) and 11(c) of the Participation Agreement,
the Lessee and the Lessor shall reoptimize the amortization
schedules for the Outstanding Fixed Rate Notes, in accordance
with and in the manner contemplated by Section 3(f) of the
Facility Lease, upon the occurrence of a Tax Rate Adjustment; and
WHEREAS, Section 11(b)(1) of the Code, as amended by
the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66),
generally effective for tax years beginning on or after January
1, 1993, increases the Tax Rate assumed to be applicable to the
Owner Participant in the Pricing Assumptions from 34% to 35%; and
WHEREAS, Section 10.2(ii) of the Indenture provides,
among other things, that, upon receipt of a written instruction
from the Lessee and the Owner Trustee, the Indenture Trustee
shall consent to certain amendments to the Facility Lease; and
WHEREAS, the Owner Trustee and the Lessee intend to
execute Amendment No. 4 to the Facility Lease, dated as of
September 30, 1994 ("Lease Amendment No. 4"), to amend
---------------------
certain provisions thereof, Appendix A thereto and certain
schedules thereof; and
WHEREAS, in order to carry out the provisions of
Section 2(e) of the Participation Agreement and such Section 3(d)
of the Facility Lease, the Owner Participant, Funding
Corporation, New Funding Corporation, the Owner Trustee, the
Indenture Trustee and the Lessee wish to amend the Participation
Agreement to establish and preserve the pricing file, which
incorporates the Assumptions and the new 35% Tax Rate and other
assumptions created by the Owner Participant in connection with
the Tax Rate Change, and reoptimize the amortization schedules
for the Outstanding Fixed Rate Notes, by entering into this
Amendment No. 6.
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions.
Except as otherwise amended or defined herein and in
the recitals, capitalized terms used herein shall have the
respective meanings assigned to such terms in Appendix A to the
Participation Agreement.
SECTION 2. Amendments.
(a) Section 2(c) Releveraging. Section 2(c) of
-------------------------
the Participation Agreement is amended by inserting in the ninth
line thereof after the phrase "Net Economic Return" and before
the period the following phrase:
"; provided that in order to determine the amount
--------
of the non-recourse loans to the Lessor the Owner
Participant will prepare a pricing file which preserves
Net Economic Return and incorporates all of the
Assumptions and the Tax Rate Assumptions."
(b) Section 2(d) Refunding of Notes. Section 2(d)
-------------------------------
of the Participation Agreement is amended by inserting before the
end of the penultimate sentence thereof after the phrase "Net
Economic Return" the following phrase:
"; provided that in order to determine the
--------
foregoing the Owner Participant will prepare a pricing
file which preserves Net Economic Return and
incorporates all of the Assumptions and the Tax Rate
Assumptions."
(c) Section 10(b)(3)(ix) Financial Support. The
--------------------------------------
second sentence of the third paragraph of Section 10(b)(3)(ix) of
the Participation Agreement is amended by deleting the phrase ",
then within 120 days following the receipt by the Lessee of the
Notice of such fact from the Owner Participant, the Lessee shall
replace such Letter of Credit with one issued by an Eligible
Bank" and inserting in lieu thereof before the period the
following phrase:
"("Rating Reduction"), then the Lessee shall within 10
days following the earlier of (a) its becoming aware of
such Rating Reduction or (b) its receiving notice
thereof from such Issuing Bank, give the Owner
Participant notice of such Rating Reduction. After a
Rating Reduction and no later than 120 days following
receipt by the Lessee of a request from the Owner
Participant, the Lessee shall replace such Letter of
Credit with one issued by an Eligible Bank".
(d) Section 18 Notices, etc. Section 18(iv) of
------------------------
the Participation Agreement is amended by inserting at the end
thereof before the semicolon after the phrase "Attention:
President" the following phrase:
"and if to New Funding Corporation, at c/o J.H.
Management Corp., P.O. Box 4024, Boston, Massachusetts
02101-4024, Attention: Nancy D. Smith, President".
(e) Appendix A. Appendix A to the Participation
----------
Agreement is amended as follows:
(i) by amending the last proviso of the definition of
"Eligible Bank" to read in its entirety as follows:
"provided, however, that such Letter of Credit Bank -
-------
shall cease to be an Eligible Bank 120 days following a
request from the Owner Participant to the Lessee to
replace such Letter of Credit Bank due to a Rating
Reduction during the Eligible Period."
(ii) by restating the definition of "Funding
Corporation" to read as follows:
"'Funding Corporation' shall mean, as of the Effective
Date of Amendment No. 5 to the Participation Agreement,
New Funding Corporation."
(iii) by restating the definition of "Net Economic
------------
Return" to read in its entirety as follows:
------
"Net Economic Return" shall mean
-------------------
(i) the net after-tax economic yield expected by the
Owner Participant on the Refinancing Date with
respect to the Undivided Interest, calculated
using the Assumptions and in accordance with the
computations of Basic Rent, Casualty Values,
Special Casualty Values and Modified
SpecialCasualty Values derived from the
Assumptions (the "Refinancing Schedules and
-------------------------
Assumptions") as such yield
-----------
shall be adjusted pursuant to and in accordance
with Section 3(f)(iv) of the Facility Lease; and
(ii) the sum of all after-tax cash over the Basic Lease
Term at least equal to that expected by the Owner
Participant on the Refinancing Date calculated
using the Refinancing Schedules and Assumptions;
and
(iii) in connection with adjustments to Basic Rent
provided for in the Facility Lease other than
Section 3(f)(v) of the Facility Lease, at least
ninety percent (90%) of the after-tax Earnings (as
defined below) expected on the Refinancing Date by
the Owner Participant for each of the fiscal years
of the Owner Participant beginning with the fiscal
year which includes the Closing Date and
continuing for each of the following seven such
fiscal years, calculated using the Refinancing
Schedules and Assumptions; and
(iv) in connection with adjustments to Basic Rent
provided for in the Facility Lease (other than
Section 3(f)(v) of the Facility Lease), the sum of
all after-tax Earnings in the period beginning on
the Closing Date to and including the Owner
Participant's fiscal year which includes December
31, 1994 at least equal to that expected by the
Owner Participant on the Refinancing Date,
calculated using the Refinancing Schedules and
Assumption; and
(v) in connection with adjustments to Basic Rent in
accordance with Section 3(f)(v) of the Facility
Lease, at least ninety percent (90%) of the sum of
all after-tax Earnings expected by the Owner
Participant on the Refinancing Date to and
including the Owner Participant's fiscal year
which includes December 31, 1994 calculated using
the Refinancing Schedules and Assumptions.
Notwithstanding the foregoing, nothing in this
definition shall be construed to obligate the Lessee to
restore any portion of a reduction in Earnings where
such portion of the reduction is due to events other
than changes in Basic Rent provided for in the Facility
Lease, including, by example, changes in Statement of
Financial Accounting Standards No. 13 ("FASB-13")
occurring after the Closing Date.
The Lessee, in connection with adjustments to
Basic Rent in accordance with Section 3(f)(v) of the
Facility Lease may elect to have clause (v) above be
excluded in the computation of Net Economic Return. To
the extent such election is made, the Lessor shall have
the right to make an additional equity investment, but,
if such investment is made, the Basic Rents calculated
in connection therewith shall have the same present
value (discounted semi-annually at the Discount Rate)
to the Lessee as if such investment had not been made
and clause (v) had been excluded; and provided,
however, that such additional equity investment shall
not change the average life to maturity of the
Outstanding Notes by more than eighteen months from the
original average life to maturity of the New Fixed Rate
Notes issued pursuant to Supplemental Indenture No. 2
and Supplemental Indenture No. 3, respectively.
In connection with adjustments to Basic Rent
provided for in the Facility Lease which result in the
application of the Tax Rate Cap, the Lessee, if so
requested by the Lessor, will make application to PUCO
for any necessary authority to exceed the parameters
set forth in the order of that Commission authorizing
the Lessee to enter into the Lease.
For the purposes of this definition, the
Assumptions shall be deemed to include the assumptions
that (i) residual value is zero and (ii) the Owner
Participant is fully taxable during the entire Basic
Lease Term; provided, however,
-------- -------
nothing in this definition or the Participation
Agreement shall be construed to be a representation by
the Owner Participant as to the actual residual value
assumed by the Owner Participant for purposes of
calculating its earnings according to FASB-13
accounting or for any other purpose.
As used in this definition, the term "Earnings"
shall mean the product of the after-tax accounting
yield and the outstanding net investment in leveraged
lease as defined in FASB-13 as in effect on the Closing
Date.
Net Economic Return shall be determined exclusive
of any fees paid to the Owner Participant on February
1, 1993 as Supplemental Rent."
(iv) by inserting in the appropriate alphabetical
order the following new definitions:
"'Amendment No. 6 to the Participation Agreement' shall
mean Amendment No. 6, dated as of September 30, 1994,
to the Participation Agreement, among the Owner
Participant, Funding Corporation, New Funding
Corporation, the Owner Trustee, the Indenture Trustee
and the Lessee."
"'Original Net Economic Return' shall have the meaning
given to the term "Net Economic Return" as defined in
the letter agreement, dated the Closing Date and
attached as Exhibit D to Amendment No. 6 to the
Participation Agreement."
"'Rating Reduction' shall have the meaning set forth in
Section 10(b)(3)(ix) of the Participation Agreement."
"'Refinancing Date' shall mean January 12, 1993."
"'Supplemental Indenture No. 2' shall mean the
Supplemental Indenture No. 2, dated as of November 1,
1992, to the Indenture, between the Owner Trustee and
the Indenture Trustee."
"'Supplemental Indenture No. 3' shall mean the
Supplemental Indenture No. 3, dated as of January 1,
1993, to the Indenture, between the Owner Trustee and
the Indenture Trustee."
"'Tax Rate Adjustment Date' shall have the meaning
assigned to such term in Section 4 of Amendment No. 6
to the Participation Agreement."
"'Tax Rate Assumptions' shall mean the tax rate change
assumptions set forth on Schedule 1 to Amendment No. 6
to the Participation Agreement."
"'Tax Rate Change Transaction Expenses' shall mean the
amount assigned to such term in Schedule 1 to Amendment
No. 6 to the Participation Agreement."
(f) Parties In Interest. The parties agree that
-------------------
Funding Corporation shall cease to be a party to the
Participation Agreement and shall have no further rights,
obligations or interest, except as otherwise provided in Section
13 of the Participation Agreement, thereunder. The Participation
Agreement is hereby amended generally so that all references to
Funding Corporation shall be deemed to refer to New Funding
Corporation, to the extent that such references relate to the
rights, obligations or interest of Funding Corporation subsequent
to the Effective Date of Amendment No. 4 to Participation
Agreement.
SECTION 3. Implementation.
(a) Forms. The forms of Lease Amendment No. 4 and
-----
the Reimbursement Agreement among the Lessee, OES Finance
Incorporated and Societe Generale (the "Reimbursement
-------------
Agreement") are attached hereto as Exhibits A and B,
- ---------
respectively, and the reoptimized amortization schedules for the
Outstanding Fixed Rate Notes are attached hereto as Exhibits C-1,
C-2 and C-3, respectively.
(b) Request by the Owner Participant. In
--------------------------------
accordance with Section 2.01 of the Trust Agreement subject to
the terms and conditions of Section 11(c) of the Participation
Agreement, the Owner Participant hereby directs that the Owner
Trustee (i) execute and deliver this Amendment No. 6 and Lease
Amendment No. 4 (collectively, the "1994
----
Amendments"), (ii) execute and deliver all other agreements,
- ----------
instruments and certificates contemplated by the Transaction
Documents and the 1994 Amendments, (iii) instruct the Indenture
Trustee to (x) consent to Lease Amendment No. 4 and (y) attach
the reoptimized amortization schedules (attached hereto as
Exhibits C-1, C-2 and C-3) for the Outstanding Fixed Rate Notes
in place of the existing amortization schedules to such Fixed
Rate Notes and (iv) subject to the terms of the Trust Agreement,
to take such other action in connection with the foregoing as the
Owner Participant may from time to time direct.
(c) Instruction and Consent. In accordance with
-----------------------
Section 10.2(ii) of the Indenture, the Lessee and the Owner
Trustee hereby instruct the Indenture Trustee to consent to Lease
Amendment No. 4 and the Indenture Trustee hereby so consents.
(d) Consent of Lessee. In accordance with Section
-----------------
8(b)(2) of the Participation Agreement, the Lessee hereby
consents to the revised amortization schedules (attached hereto
as Exhibits C-1, C-2 and C-3) to the respective Outstanding Fixed
Rate Notes in connection with the Tax Rate Change.
(e) Recordations and Filings. The Lessee agrees
------------------------
that it will cause to be made the recordations and filings set
forth in Schedule 2 hereto and that such recordations and
filings are all of the recordations and filings that are
necessary in order to preserve, protect and perfect the Owner
Trustee's rights and interests under the Facility Lease, as
amended by Amendment Nos. 1, 2, 3 and 4 thereto, and the first
and prior security interest of the Indenture Trustee in the Lease
Indenture Estate under the Indenture, as amended.
SECTION 4. Conditions To Effectiveness.
This Amendment No. 6 shall become effective as of the
date first above written if: (a) it shall have been duly
executed and delivered by all of the parties hereto and all of
the conditions set forth below in this Section 4 shall have been
satisfied (the date of such satisfaction being referred to as the
"Tax Rate Adjustment Date"); (b) the Owner -
- -----------------------
Participant shall have received a duly executed and delivered,
legal, valid, and binding Lease Amendment No. 4 and Amendment No.
3 to the Tax Indemnification Agreement, as corrected, restated
and amended heretofore ("TIA Amendment No. 3"); (c) the Owner
Participant shall have received the replacement Letter of Credit
having Maximum Drawing Amounts (as defined in the Letter of
Credit) corresponding to the Modified Special Casualty Values, as
adjusted on the date hereof, from Societe Generale, in
substantially the form of Exhibit A to the Reimbursement
Agreement, in replacement of the existing Letter of Credit issued
by Barclays Bank, PLC; (d) the Owner Participant shall have
received opinions from Owner Participant's Special Tax Counsel,
Lessee's Senior Attorney, Lessee's Special Counsel, Lessee's NRC
Counsel, special counsel and special French counsel to Societe
Generale and such other opinions as the Owner Participant shall
reasonably request and all such opinions shall be in form and
substance satisfactory to the Owner Participant; (e) no Default,
Event of Default, Event of Loss, Deemed Loss Event, Reimbursement
Default, Reimbursement Event of Default, Indenture Default or
Indenture Event of Default shall have occurred and be continuing;
and (f) subject to the satisfaction of any and all other
conditions set forth in Sections 2(d) and 11(c) of the
Participation Agreement.
SECTION 5. Expenses.
(a) On the Tax Rate Adjustment Date, (i) the costs and
expenses of the Owner Participant (including, but not limited to,
Owner Participant's computer lease analysis expenses, out-of-
pocket expenses and legal fees and disbursements of the Owner
Participant's counsel and any financial advisors employed by it)
as well as the fees and expenses (including, but not limited to,
all computer lease analysis and travel related costs) of the
Owner Trustee, the Indenture Trustee, the Collateral Trust
Trustee, Funding Corporation, New Funding Corporation and the
Issuing Bank with respect to the negotiation, execution and
delivery of this Amendment No. 6, Lease Amendment No. 4, TIA
Amendment No. 3, the replacement Letter of Credit, the
transactions contemplated herein and therein and all other
agreements, documents or instruments prepared in connection
therewith and all fees, taxes, expenses and disbursements
incurred by such parties, including, but not limited to, legal
fees and disbursements of their counsel, in connection with the
transactions contemplated hereby and thereby and (ii) all
stenographic, printing, reproduction, and other out-of-pocket
expenses (other than investment banking or brokerage fees)
incurred in connection with the execution and delivery of this
Amendment No. 6, Lease Amendment No. 4, TIA Amendment No. 3, the
replacement Letter of Credit and all other agreements, documents
or instruments prepared in connection therewith (collectively,
the "Tax Rate Change Transaction Expenses") shall be paid by the
------------------------------------
Lessee, on behalf of the
Owner Trustee, as Supplemental Rent in accordance with the
provisions of this Section 5, Section 20 of the Facility Lease
and Sections 14(b)(2)(b) and (g) of the Participation Agreement.
(b) Notwithstanding anything in this Section 5 or in
Section 14 of the Participation Agreement to the contrary, (i) in
the event the transactions contemplated by this Amendment No. 6
shall not be consummated for any reason, the Lessee shall pay or
cause to be paid, and shall indemnify and hold harmless the
Indenture Trustee, the Collateral Trust Trustee, the Owner
Trustee, the Owner Participant, Funding Corporation and New
Funding Corporation in respect of all Tax Rate Change Transaction
Expenses and (ii) in any event, the Lessee shall pay or cause to
be paid directly (and not as Supplemental Rent) that portion of
the Tax Rate Change Transaction Expenses which exceeds the Tax
Rate Change Transaction Expenses payable by the Owner Trustee
pursuant to clause (a) above and as indicated on Schedule 1
hereto and shall indemnify and hold the Lessor and the Owner
Participant harmless for any such amounts.
SECTION 6. Miscellaneous.
(a) Execution. This Amendment No. 6 may be
---------
executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which, when so executed
and delivered, shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
Although this Amendment No. 6 is dated as of the date first above
written for convenience (and once it becomes effective shall have
effect from such date), the actual dates of execution hereof by
the parties hereto are respectively the dates set forth under the
signatures hereto, and this Amendment No. 6 shall not be
effective until all such signatures shall have been duly affixed
and all conditions precedent set forth in Section 4 hereof shall
have been satisfied. This Amendment No. 6 amends and modifies
the Participation Agreement and is to be read with and form part
of the Participation Agreement. On and from the Tax Rate
Adjustment Date, any reference in any Transaction Document to the
Participation Agreement shall be deemed to refer to the
Participation Agreement as amended and modified by Amendment No.
1 thereto, dated as of February 1, 1988, Amendment No. 3 thereto,
dated as of March 16, 1988, Amendment No. 4 dated as of November
5, 1992, Amendment No. 5 dated as of January 12, 1993, and this
Amendment No. 6.
(b) Non-Waiver or Amendment. The agreements
-----------------------
contained in this Amendment shall not, except as expressly
provided in this Amendment, operate as a waiver of any right,
power or remedy of any party under any Transaction Document, nor
constitute, except as expressly provided in this Amendment No. 6,
a waiver of any provision of any Transaction Document.
(c) Governing Law. This Amendment No. 6 has been
-------------
egotiated and delivered in the State of New York and shall be
governed by, and construed in accordance with, the laws of the
State of New York.
(d) Responsibility for Recitals. The recitals
---------------------------
contained herein shall be taken as the statements of the Lessee,
and the other parties hereto assume no responsibility for the
correctness of the same.
IN WITNESS WHEREOF, intending to be legally bound, each
of the parties hereto has caused this Amendment No. 6 to the
Participation Agreement to be duly executed by its respective
officers thereunto duly authorized as of the dates set forth
below.
BVPS FUNDING CORPORATION
By: \s\ M.A. Ferrucci
-----------------------
Name: M.A. Ferrucci
Title: President
Date: September 30, 1994
BVPS II FUNDING CORPORATION
By:\s\ Lannhi Tran
--------------------------
Name: Lannhi Tran
Title: Vice President
Date: September 30, 1994
THE FIRST NATIONAL BANK OF BOSTON,
in its individual capacity and as
Owner Trustee under a Trust Agreement,
dated as of September 15, 1987, as
corrected and restated, with the Owner
Participant
By: \s\ J.E. Mogavero
--------------------------
Name: J.E. Mogavero
Title: Authorized Officer
Date: September 30, 1994
THE BANK OF NEW YORK, in its individual
capacity and as Indenture Trustee under a
Trust Indenture, Mortgage, Security
Agreement and Assignment of Facility
Lease, dated as of September 15, 1987, as
corrected, restated and amended with The
First National Bank of Boston in its
individual capacity and as Owner Trustee
under a Trust Agreement, dated as of
September 15, 1987, as corrected and
restated with the Owner Participant.
By: \s\ W.T. Cunningham
--------------------------
Name: W.T. Cunningham
Title: Vice President
Date: September 30, 1994
OHIO EDISON COMPANY, as Lessee
By: \s\ R.H. Marsh
--------------------------
Name: R.H. Marsh
Title: Treasurer
Date: September 30, 1994
CHRYSLER CONSORTIUM CORPORATION, as Owner
Participant
By: \s\ Richard G. Neptune
--------------------------
Name: Richard J. Neptune
Title: Vice President
Date: September 30, 1994
SCHEDULE 1
TO
AMENDMENT NO. 6
TO
PARTICIPATION AGREEMENT
-----------------------
TAX RATE CHANGE ASSUMPTIONS
---------------------------
SEE WARREN & SELBERT ABC FILE OHIOED-TAX-94ACC DATED 26-
SEP-1994 6:36:15.00 (A HARD COPY OF WHICH IS RETAINED IN
THE FILES OF OWNER PARTICIPANT)
1. Tax Rate Change
Transaction Expenses $ 41,928.57 paid on the Tax
Rate Adjustment Date by the
Lessee on behalf of the Owner
Trustee as Supplemental Rent
and amortized for Federal
income tax purposes on a
straight line basis over the
remaining Basic Lease Term.
2. Owner Participant's
Marginal Federal
Tax Rate 35 percent in 1993 and each
year after.
3. Basic Rent payments See Schedule 1 to Amendment No.
4 to Facility Lease.
4. Amortization of Notes See Exhibits C-1, C-2 and C-3
to Amendment No. 6 to
Participation Agreement.
SCHEDULE 2
TO
AMENDMENT NO. 6
TO
PARTICIPATION AGREEMENT
-----------------------
RECORDATIONS AND FILINGS
------------------------
UCC-1 Financing Statements and Other Filings
A. Secretary of Commonwealth, Pennsylvania
(i) A financing statement on form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
B. County Recorder, Summit County, Ohio:
(i) A financing statement on form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
C. Secretary of State, Ohio
(i) A financing statement on Form UCC-1 naming
Ohio Edison Company as Lessee, the Owner Trustee as Lessor,
and the Indenture Trustee as Assignee of the Owner Trustee,
in respect of the Facility Lease.
EXHIBIT A
TO AMENDMENT
NO. 6 TO
PARTICIPATION
AGREEMENT
-------------
[FORM OF LEASE AMENDMENT NO. 4]
EXHIBIT B
TO AMENDMENT
NO. 6 TO
PARTICIPATION
AGREEMENT
-------------
[FORM OF REIMBURSEMENT AGREEMENT]
EXHIBITS C-1,
C-2 and C-3,
respectively,
TO AMENDMENT
NO. 6 TO
PARTICIPATION
AGREEMENT
-------------
[FORMS OF REOPTIMIZED AMORTIZATION SCHEDULES
FOR THE FIXED RATE NOTES]
EXHIBIT D
TO AMENDMENT
NO. 6 TO
PARTICIPATION
AGREEMENT
-------------
[ORIGINAL NET ECONOMIC RETURN LETTER]
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE AS
AMENDED BY THIS AMENDMENT NO. 4 THERETO HAVE BEEN ASSIGNED
TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF, THE
BANK OF NEW YORK, AS INDENTURE TRUSTEE UNDER A TRUST
INDENTURE, MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF
FACILITY LEASE DATED AS OF SEPTEMBER 15, 1987, AS CORRECTED
AND RESTATED AND AS SUPPLEMENTED BY THE SUPPLEMENTAL
INDENTURE NO. 1 THERETO, DATED AS OF FEBRUARY 1, 1988, AND BY
THE SUPPLEMENTAL INDENTURE NO. 2 THERETO, DATED AS OF
NOVEMBER 1, 1992, AND BY THE SUPPLEMENTAL INDENTURE NO. 3
THERETO, DATED AS OF JANUARY 12, 1993. THIS AMENDMENT NO. 4
HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. SEE SECTION 3(b)
OF THIS AMENDMENT NO. 4 FOR INFORMATION CONCERNING THE RIGHTS
OF HOLDERS OF VARIOUS COUNTERPARTS HEREOF.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART
___________________________________________________________
AMENDMENT NO. 4
dated as of September 30, 1994
to
FACILITY LEASE
dated as of September 15, 1987,
as corrected and restated
and amended as of February 1, 1988,
further amended as of November 5, 1992
and further amended as of January 12, 1993
between
THE FIRST NATIONAL BANK OF BOSTON
not in its individual capacity, but solely
as Owner Trustee under a Trust Agreement dated as
of September 15, 1987, as corrected and restated, with
CHRYSLER CONSORTIUM CORPORATION,
as Lessor
and
OHIO EDISON COMPANY,
as Lessee
___________________________________________________________
Original Facility Lease Recorded on October 1, 1987, at
Mortgage Book Volume ___, Page ___, Beaver County,
Pennsylvania Recorder's Office.
Corrective and Restated Facility Lease Recorded on
December __, 1987, at Mortgage Book Volume ___, Page ___,
Beaver County, Pennsylvania Recorder's Office.
Amendment No. 1 to Facility Lease Recorded on December
__, 1987, at Mortgage Book Volume ___, Page ___, Beaver
County, Pennsylvania Recorder's Office.
Amendment No. 2 to Facility Lease Recorded on November
__, 1992, at Mortgage Book Volume ___, Page ___, Beaver
County, Pennsylvania Recorder's Office.
Amendment No. 3 to Facility Lease Recorded on January
__, 1993, at Mortgage Book Volume ___, Page ___, Beaver
County, Pennsylvania Recorder's Office.
AMENDMENT NO. 4, dated as of September 30, 1994
("Amendment No. 4"), to the Facility Lease, dated as of
September 15, 1987, as corrected and restated and as amended
by Amendment No. 1 thereto, dated as of February 1, 1988
("Amendment No. 1"), and Amendment No. 2 thereto, dated as of
November 5, 1992 ("Amendment No. 2"), and Amendment No. 3
thereto, dated as of January 12, 1993 ("Amendment No. 3"),
all as in effect on the date hereof (the "Facility Lease"),
between THE FIRST NATIONAL BANK OF BOSTON, a national banking
association, not in its individual capacity, but solely as
Owner Trustee (the "Lessor") under a Trust Agreement, dated
as of September 15, 1987, with CHRYSLER CONSORTIUM
CORPORATION, as Owner Participant and OHIO EDISON COMPANY, an
Ohio corporation (the "Lessee").
W I T N E S S E T H :
-------------------
WHEREAS, the Lessor and the Lessee have heretofore
entered into the Facility Lease providing for the lease by
the Lessor to the Lessee of the Undivided Interest;
WHEREAS, Section 3(d) of the Facility Lease
provides for an adjustment to Basic Rent and to the schedules
of Casualty Values, Special Casualty Values and Modified
Special Casualty Values so as to preserve Owner Participant's
Net Economic Return in the event, among other things, of any
Tax Rate Change occurring prior to the twentieth anniversary
of the Closing Date, which results in the change in Tax Rate
from the rate assumed in the Pricing Assumptions as in effect
on the Closing Date; and
WHEREAS, Section 11(b)(1) of the Code, as amended
by the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-
66), generally effective for tax years beginning on or after
January 1, 1993, increases the Tax Rate assumed to be
applicable to the Owner Participant in the Pricing
Assumptions from 34% to 35%; and
WHEREAS, in order to carry out the provisions of
Section 3(d) of the Facility Lease, the Owner Trustee and the
Lessee desire to execute this Amendment No. 4 to amend cer-
tain Sections of the Facility Lease, amend Appendix A there-
to, and amend the schedules of Basic Rent percentages,
Casualty Values, Special Casualty Values and Modified Special
Casualty Values pursuant to Sections 3(d) and 3(f) of the
Facility Lease.
NOW, THEREFORE, in consideration of the premises
and of other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Definitions
-----------
For purposes hereof, capitalized terms used herein
and not otherwise defined herein shall have the meanings
assigned to such terms in Appendix A to the Facility Lease.
SECTION 2. Supplements and Amendments
--------------------------
(a) Section 3(e) Other Adjustments to Rent.
--------------------------------------
Section 3(e) of the Facility Lease is amended by inserting
before the end of the proviso contained in the second
sentence thereof after the phrase "or this Section 3(e)" the
following phrase:
"; provided further that in order to determine the
----------------
foregoing adjustments the Owner Participant will
prepare a pricing file which preserves Net Economic
Return and incorporates all of the Assumptions and
the Tax Rate Assumptions".
(b) Computation of adjustments. Section 3(f) of
--------------------------
the Facility Lease is hereby amended as follows:
(i) by amending subparagraph (i)(A) by deleting
the phrase "this Participation Agreement" and inserting
in lien thereof the phrase "the Participation
Agreement".
(ii) by amending subparagraph (iv) to read in its
entirety as follows:
"(iv) If (x) the present value (discounted
semiannually to the Closing Date at the Discount
Rate) of Revised Base File Rent payments by Lessee
over the Basic Lease Term, expressed as a
percentage of Facility Cost (the "Revised Present
---------------
Value") minus (y) the Original Present Value is not
-----
more than (z) 1.6% of Facility Cost (the "Tax Rate
--------
Cap"), the components of Original Net Economic
---
Return set forth in the Base File in effect on the
Closing Date shall be used in the Revised Base File
(the "Revised Base File Net Economic Return") and
the components of Net Economic Return shall not be
adjusted. If (x) the Revised Present Value minus
(y) the Original Present Value is more than (z) the
Tax Rate Cap, the Owner Participant shall adjust
the components of Revised Base File Net Economic
Return in the Revised Base File (the "Adjusted Base
-------------
File Net Economic Return") such that (m) the
------------------------
Revised Present Value (determined utilizing such
Adjusted Base File Net Economic Return and an
Optimal Structure) minus (n) the Original Present
Value is not more than (o) the Tax Rate Cap and the
components of Net Economic Return shall be adjusted
by the same absolute adjustment which occurred to
the Revised Base File Net Economic Return (the
"Adjusted Net Economic Return"). Such Revised Base
----------------------------
File Rent, the revised debt amortization schedule
determined in the calculation thereof and the new
tax rate for the period subsequent to the effective
date of the Tax Rate Change shall be incorporated
in the Assumptions in such Revised Base File for
purposes of creating a Revised Base File in
connection with any subsequent Tax Rate Change;
provided, however, that the Tax Rate Cap shall
-------- -------
always be measured by reference to the Original
Present Value as derived from the Base File in
effect on the Closing Date."
(iii) by amending subparagraph (v) to read in its
entirety as follows:
"(v) Adjustments to Basic Rent and the
schedules of Casualty Values, Special Casualty
Values and Modified Special Casualty Values as a
result of a Tax Rate Change (a) shall be made so as
to preserve (x) Net Economic Return, if Revised
Base File Net Economic Return was maintained under
subparagraph (iv) or (y) Adjusted Net Economic
Return, if Adjusted Base File Net Economic Return
was determined under subparagraph (iv), and
adjustment to Net Economic Return is made as
described in subparagraph (iv), (b) shall comply
with Section 3(e) hereof, and (c) shall to the
extent possible and not inconsistent with clauses
(a) and (b) of this subparagraph (v) (but subject
to the following assumptions and procedures)
minimize the net present value cost of Basic Rent
to the Lessee. In order to achieve the foregoing,
the Owner Participant shall initially determine
"Optimized Basic Rent" in accordance with the
--------------------
procedures described in this subparagraph (v) and
subparagraphs (vi) and (vii) below. In order to
determine the Optimized Basic Rent, the Owner
Participant will prepare a pricing file (the
"Preliminary Optimized Rent Pricing File") which
---------------------------------------
incorporates all of the assumptions contained in
the Initial Pricing File (or, if one or more
pricing files have been prepared subsequent to the
date of the Initial Pricing File, the pricing file,
which incorporates the Assumptions and the Tax Rate
Assumptions, prepared in connection with the next
preceding adjustment to Basic Rent) adjusted to
reflect actual rent and debt amortization schedules
prior to the latest Tax Rate Change except that the
interest rates to be applied on the debt shall be
the preliminary market interest rates on the Notes
which shall be determined in the sole discretion of
the Lessee (the "Preliminary Market Interest
---------------------------
Rates"). The principal amount of the Notes
-----
(assumed outstanding in the period after the
effective date of the Tax Rate Change) and the
scheduled amortization of such Notes shall be
recalculated in a manner (the "Optimal Debt
------------
Structure") so as to minimize the net present value
---------
(discounted at the resulting weighted average
interest rate on the Notes) of the Basic Rent
payments by the Lessee over the Basic Lease Term
(utilizing the Optimal Structure) while preserving
Net Economic Return."
(iii) by amending subparagraph (vi)(A) as follows:
(x) by deleting in clause (x) of subparagraph
(vi)(A) the phrase "Net Economic Return" and inserting
in lieu thereof the phrase "Original Net Economic
Return"; and
(y) by inserting in clause (z) of subparagraph
(vi)(A) immediately before the parenthetical the
following:
"or, in the case of Revised Base File Rent, Revised
Base File Net Economic Return or Adjusted Base File
Net Economic Return, as appropriate".
(c) Definitions. Appendix A of the Facility Lease
-----------
is amended as set forth in Amendment No. 6, dated as of
September 30, 1994, to the Participation Agreement, among the
Owner Participant, Funding Corporation, New Funding
Corporation, the Owner Trustee, the Indenture Trustee and the
Lessee, in respect of Appendix A thereto.
(d) Schedules. Schedules 1 through 4 of the
---------
Facility Lease are hereby amended as follows:
(i) Schedule 1 entitled "Basic Rent Percentages"
is deleted in its entirety and is hereby replaced with
Schedule 1 hereto.
(ii) Schedule 2 entitled "Schedule of Casualty
Values" is deleted in its entirety and is hereby
replaced with Schedule 2 hereto.
(iii) Schedule 3 entitled "Schedule of Special
Casualty Values" is deleted in its entirety and is
hereby replaced with Schedule 3 hereto.
(iv) Schedule 4 entitled "Schedule of Modified
Special Casualty Values" is deleted in its entirety and
is hereby replaced with Schedule 4 hereto.
SECTION 3. Miscellaneous
-------------
(a) Execution. This Amendment No. 4 may be
---------
executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which, when
so executed and delivered, shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
(b) Original Counterpart. The single executed
--------------------
original of this Amendment No. 4 marked "THIS COUNTERPART IS
THE ORIGINAL COUNTERPART" and containing the receipt of the
Indenture Trustee thereon shall be the "Original" of this
Amendment No. 4. No security interest in this Amendment No.
4 may be created or continued through the transfer or
possession of any counterpart other than the "Original."
(c) Effectiveness. Although this Amendment No. 4
-------------
is dated as of the date first above written for convenience
(and once it becomes effective shall have effect from such
date), the actual dates of execution hereof by the parties
hereto are, respectively, the dates set forth under the
signatures hereto, and this Amendment No. 4 shall become
effective as of the Tax Rate Adjustment Date (as defined in
Amendment No. 6 to the Participation Agreement) when all
conditions precedent to the Tax Rate Adjustment Date shall
have been satisfied and this Amendment No. 4 shall have been
duly executed and delivered by all of the parties hereto is
executed and shall be construed as an amendment and supple-
ment to the Facility Lease, and as provided in the Facility
Lease, this Amendment No. 4 forms a part thereof. On and
from the Tax Rate Adjustment Date any reference in any
Transaction Document to the Facility Lease shall be deemed to
refer to the Facility Lease, as corrected and restated and as
amended and modified by Amendment No. 1, Amendment No. 2,
Amendment No. 3 and this Amendment No. 4 and the Facility
Lease, as so amended, remains in full force and effect in
accordance with its terms.
(d) Non-Waiver or Amendment. The agreements
-----------------------
contained in this Amendment No. 4 shall not, except as
expressly provided in this Amendment No. 4, operate as a
waiver of any right, power or remedy of any party under any
Transaction Document nor constitute, except as expressly
provided in this Amendment No. 4, a waiver of any provision
of any Transaction Document.
(e) Governing Law. This Amendment No. 4 shall be
-------------
governed by and construed in accordance with the laws of the
State of New York, except to the extent that the laws of the
Commonwealth of Pennsylvania govern the creation of, and
perfection of, the leasehold estate hereunder and the
exercise of rights and remedies with respect to such lease-
hold estate and except to the extent that the Federal laws of
the United States are mandatorily applicable.
IN WITNESS WHEREOF, the Lessor and the Lessee have
caused this Amendment No. 4 to be duly executed as of the
date set forth above by their respective officers thereunto
duly organized.
THE FIRST NATIONAL BANK
OF BOSTON, not in its
individual capacity, but
solely as Owner Trustee
under a Trust Agreement,
dated as of September 15,
1987, as corrected and
restated, with CHRYSLER
CONSORTIUM CORPORATION,
as Lessor
Attest: \s\Emily Lea By \s\ J.E. Mogavero
--------------------- --------------------------
Name: Emily Lea Name: J.E. Mogavero
Title: Account Manager Title: Authorized Officer
[Corporate Seal]
OHIO EDISON COMPANY,
as Lessee
Attest: \s\ G.F. LaFlame By \s\ R.H. Marsh
--------------------- --------------------
Name: G.F. LaFlame Name: R.H. Marsh
Title: Secretary Title: Treasurer
[Corporate Seal]
I.B.
----
COMMONWEALTH OF MASSACHUSETTS)
: ss.:
COUNTY OF NORFOLK )
ON THIS, the 27th day of September, 1994, before me
a Notary Public, personally appeared James E. Mogavero, who
acknowledged himself to be a Authorized Officer of THE FIRST
NATIONAL BANK OF BOSTON, and that he as such officer, being
authorized to do so, executed the foregoing instrument for
the purposes therein contained by signing the name of the
national banking association by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
\s\ Bernadette L. May
-------------------------
Notary Public
Bernadette L. May
My Commission Expires:
October 31, 1997
[NOTARY SEAL]
STATE OF OHIO )
: ss.:
COUNTY OF SUMMIT )
ON THIS, the 30th day of September, 1994, before me
a Notary Public in and for said County and State, personally
appeared R.H. Marsh, who acknowledged himself to be a
Treasurer of OHIO EDISON COMPANY, and that he as such
officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the
name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
\s\ Susie M. Hoisten
-------------------------
Notary Public
Susie M. Hoisten
Notary Public
Residence - Summit County
State Wide Jurisdiction, Ohio
My Commission Expires Nov. 4, 1996
[NOTARY SEAL]
CERTAIN OF THE RIGHT, TITLE AND INTEREST IN AND TO
THIS AMENDMENT NO. 4 TO FACILITY LEASE OF THE FIRST NATIONAL
BANK OF BOSTON, AS OWNER TRUSTEE UNDER THE TRUST AGREEMENT,
DATED AS OF SEPTEMBER 15, 1987, AS CORRECTED AND RESTATED, TO
THE DATE HEREOF, BETWEEN THE FIRST NATIONAL BANK OF BOSTON
AND CHRYSLER CONSORTIUM CORPORATION, HAS BEEN ASSIGNED TO AND
IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF THE BANK OF NEW
YORK, AS INDENTURE TRUSTEE, UNDER THE CORRECTIVE TRUST
INDENTURE, MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF
FACILITY LEASE, DATED AS OF SEPTEMBER 15, 1987, CORRECTED AND
RESTATED AND AS SUPPLEMENTED TO THE DATE HEREOF, FOR THE
BENEFIT OF THE HOLDERS OF THE NOTES REFERRED TO IN SUCH
CORRECTIVE TRUST INDENTURE, MORTGAGE, SECURITY AGREEMENT, AND
ASSIGNMENT OF FACILITY LEASE. THIS AMENDMENT NO. 4 TO
FACILITY LEASE HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS.
ONLY THAT COUNTERPART TO BE DEEMED THE ORIGINAL COUNTERPART
FOR CHATTEL PAPER PURPOSES CONTAINS THIS RECEIPT THEREFOR
EXECUTED BY THE BANK OF NEW YORK, AS INDENTURE TRUSTEE, ON
THE SIGNATURE PAGES THEREOF AND NO SECURITY INTEREST IN THIS
AMENDMENT NO. 4 TO FACILITY LEASE MAY BE CREATED THROUGH THE
TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THIS
EXECUTED ORIGINAL COUNTERPART. SEE SECTION 22 (e) OF THE
FACILITY LEASE FOR INFORMATION CONCERNING THE RIGHTS OF THE
HOLDERS OF THE VARIOUS COUNTERPARTS HEREOF.
Receipt of this original counterpart of the
foregoing Amendment No. 4 to the Facility Lease is hereby
acknowledged on this ___ day of ____, 1994.
THE BANK OF NEW YORK,
as Indenture Trustee
By__________________________
Name:
Title:
SCHEDULE 1
to
Amendment No. 4
to Facility Lease
-----------------
SCHEDULE OF BASIC RENT
DATE % OF FACILITY COST RENT IN DOLLARS
- ---- ------------------ ---------------
Dec. 1, 1994 3.9264246 7,852,849.10
Jun. 1, 1995 3.9718114 7,943,622.83
Dec. 1, 1995 3.9718114 7,943,622.83
Jun. 1, 1996 3.7285551 7,457,110.25
Dec. 1, 1996 3.7285551 7,457,110.25
Jun. 1, 1997 4.1529242 8,305,848.32
Dec. 1, 1997 4.1529242 8,305,848.32
Jun. 1, 1998 4.5736653 9,147,330.55
Dec. 1, 1998 4.5736653 9,147,330.55
Jun. 1, 1999 4.8107733 9,621,546.63
Dec. 1, 1999 4.8107733 9,621,546.63
Jun. 1, 2000 3.8660125 7,732,025.05
Dec. 1, 2000 3.8660125 7,732,025.05
Jun. 1, 2001 4.0349094 8,069,818.85
Dec. 1, 2001 4.0349094 8,069,818.85
Jun. 1, 2002 4.5190986 9,038,197.12
Dec. 1, 2002 4.5190986 9,038,197.12
Jun. 1, 2003 5.0613904 10,122,780.77
Dec. 1, 2003 5.0613904 10,122,780.77
Jun. 1, 2004 4.6560375 9,312,074.93
Dec. 1, 2004 4.6560375 9,312,074.93
Jun. 1, 2005 4.3671847 8,734,369.35
Dec. 1, 2005 4.3671847 8,734,369.35
Jun. 1, 2006 4.2080835 8,416,167.01
Dec. 1, 2006 4.2080835 8,416,167.01
Jun. 1, 2007 4.2218780 8,443,755.96
Dec. 1, 2007 4.2218780 8,443,755.96
Jun. 1, 2008 4.2390837 8,478,167.42
Dec. 1, 2008 4.2390837 8,478,167.42
Jun. 1, 2009 4.3086925 8,617,385.04
Dec. 1, 2009 4.3086925 8,617,385.04
Jun. 1, 2010 4.3482635 8,696,526.99
Dec. 1, 2010 4.3482635 8,696,526.99
Jun. 1, 2011 4.3853901 8,770,780.21
Dec. 1, 2011 4.3853901 8,770,780.21
Jun. 1, 2012 4.4267913 8,853,582.58
Dec. 1, 2012 4.4267913 8,853,582.58
Jun. 1, 2013 4.4819481 8,963,896.14
Dec. 1, 2013 4.4819481 8,963,896.14
Jun. 1, 2014 4.5357628 9,071,525.67
Dec. 1, 2014 4.5357628 9,071,525.67
Jun. 1, 2015 4.5804659 9,160,931.79
Dec. 1, 2015 4.5804659 9,160,931.79
Jun. 1, 2016 4.5695687 9,139,137.38
Dec. 1, 2016 4.5695687 9,139,137.38
Jun. 1, 2017 4.6081867 9,216,373.43
SCHEDULE 2
to
Amendment No. 4
to Facility Lease
-----------------
SCHEDULE OF CASUALTY VALUES
SETTLEMENT DATE % OF FACILITY COST
- --------------- ------------------
Dec. 1, 1994 109.44285
Jun. 1, 1995 108.96865
Dec. 1, 1995 108.33906
Jun. 1, 1996 107.81879
Dec. 1, 1996 107.25146
Jun. 1, 1997 106.24255
Dec. 1, 1997 105.19863
Jun. 1, 1998 103.69914
Dec. 1, 1998 102.14479
Jun. 1, 1999 100.29490
Dec. 1, 1999 98.39838
Jun. 1, 2000 97.39889
Dec. 1, 2000 96.38156
Jun. 1, 2001 95.20582
Dec. 1, 2001 93.97838
Jun. 1, 2002 92.23878
Dec. 1, 2002 90.45671
Jun. 1, 2003 88.08875
Dec. 1, 2003 85.66030
Jun. 1, 2004 83.56909
Dec. 1, 2004 81.42407
Jun. 1, 2005 79.50852
Dec. 1, 2005 77.54467
Jun. 1, 2006 75.68704
Dec. 1, 2006 73.78347
Jun. 1, 2007 71.81654
Dec. 1, 2007 69.80132
Jun. 1, 2008 67.71666
Dec. 1, 2008 65.58107
Jun. 1, 2009 63.32099
Dec. 1, 2009 61.00575
Jun. 1, 2010 58.59126
Dec. 1, 2010 56.11795
Jun. 1, 2011 53.54389
Dec. 1, 2011 50.90774
Jun. 1, 2012 48.16367
Dec. 1, 2012 45.42356
Jun. 1, 2013 42.64433
Dec. 1, 2013 39.91738
Jun. 1, 2014 37.17751
Dec. 1, 2014 34.52057
Jun. 1, 2015 31.89085
Dec. 1, 2015 29.28656
Jun. 1, 2016 26.45309
Dec. 1, 2016 23.39136
Jun. 1, 2017 20.00000
SCHEDULE 3
to
Amendment No. 4
to Facility Lease
-----------------
SCHEDULE OF SPECIAL CASUALTY VALUES
SETTLEMENT DATE % OF FACILITY COST
- --------------- ------------------
Dec. 1, 1994 108.07982
Jun. 1, 1995 107.54390
Dec. 1, 1995 106.84980
Jun. 1, 1996 106.26209
Dec. 1, 1996 105.62427
Jun. 1, 1997 104.54168
Dec. 1, 1997 103.42074
Jun. 1, 1998 101.84074
Dec. 1, 1998 100.20225
Jun. 1, 1999 98.26440
Dec. 1, 1999 96.27593
Jun. 1, 2000 95.18033
Dec. 1, 2000 94.06255
Jun. 1, 2001 92.78180
Dec. 1, 2001 91.44460
Jun. 1, 2002 89.59026
Dec. 1, 2002 87.68826
Jun. 1, 2003 85.19494
Dec. 1, 2003 82.63545
Jun. 1, 2004 80.40728
Dec. 1, 2004 78.11909
Jun. 1, 2005 76.05388
Dec. 1, 2005 73.93361
Jun. 1, 2006 71.91246
Dec. 1, 2006 69.83797
Jun. 1, 2007 67.69238
Dec. 1, 2007 65.49042
Jun. 1, 2008 63.21055
Dec. 1, 2008 60.87092
Jun. 1, 2009 58.39756
Dec. 1, 2009 55.85938
Jun. 1, 2010 53.21185
Dec. 1, 2010 50.49495
Jun. 1, 2011 47.66627
Dec. 1, 2011 44.76398
Jun. 1, 2012 41.74171
Dec. 1, 2012 38.71081
Jun. 1, 2013 35.62762
Dec. 1, 2013 32.58293
Jun. 1, 2014 29.51095
Dec. 1, 2014 26.50686
Jun. 1, 2015 23.51426
Dec. 1, 2015 20.53067
Jun. 1, 2016 17.30072
Dec. 1, 2016 13.82456
Jun. 1, 2017 10.00000
SCHEDULE 4
to
Amendment No. 4
to Facility Lease
-----------------
SCHEDULE OF MODIFIED SPECIAL CASUALTY VALUES
DATE EXPOSURE IN % EXPOSURE IN $
- ---- ------------- -------------
Dec. 1, 1994 33.33702 66,674,036
Jun. 1, 1995 33.60246 67,204,922
Dec. 1, 1995 33.71502 67,430,045
Jun. 1, 1996 33.72010 67,440,203
Dec. 1, 1996 33.63740 67,274,791
Jun. 1, 1997 33.55458 67,109,168
Dec. 1, 1997 33.48531 66,970,624
Jun. 1, 1998 33.41585 66,831,707
Dec. 1, 1998 33.41585 66,831,707
Jun. 1, 1999 33.41571 66,831,412
Dec. 1, 1999 32.81339 65,626,785
Jun. 1, 2000 32.60875 65,217,492
Dec. 1, 2000 32.17654 64,353,075
Jun. 1, 2001 32.24048 64,480,960
Dec. 1, 2001 31.35747 62,714,943
Jun. 1, 2002 30.90973 61,819,455
Dec. 1, 2002 30.17536 60,350,711
Jun. 1, 2003 29.54930 59,098,592
Dec. 1, 2003 28.59082 57,181,634
Jun. 1, 2004 27.77669 55,553,390
Dec. 1, 2004 26.84366 53,687,318
Jun. 1, 2005 26.09755 52,195,104
Dec. 1, 2005 25.22682 50,453,650
Jun. 1, 2006 24.52485 49,049,699
Dec. 1, 2006 23.66873 47,337,459
Jun. 1, 2007 22.97190 45,943,793
Dec. 1, 2007 22.07160 44,143,193
Jun. 1, 2008 21.32908 42,658,153
Dec. 1, 2008 20.36772 40,735,439
Jun. 1, 2009 19.57403 39,148,058
Dec. 1, 2009 18.53295 37,065,901
Jun. 1, 2010 17.67077 35,341,533
Dec. 1, 2010 16.55084 33,101,687
Jun. 1, 2011 15.62486 31,249,721
Dec. 1, 2011 14.42427 28,848,549
Jun. 1, 2012 13.43251 26,865,022
Dec. 1, 2012 13.20971 26,419,426
Jun. 1, 2013 13.46388 26,927,762
Dec. 1, 2013 13.90101 27,802,029
Jun. 1, 2014 14.51513 29,030,259
Dec. 1, 2014 15.35627 30,712,531
Jun. 1, 2015 16.41996 32,839,914
Dec. 1, 2015 16.35524 32,710,488
Jun. 1, 2016 12.71792 25,435,843
Dec. 1, 2016 8.82732 17,654,648
Jun. 1, 2017 4.60819 9,216,373
=============================================================
AMENDMENT NO. 1
dated as of November 5, 1992
to
CORRECTIVE
TAX INDEMNIFICATION AGREEMENT
dated as of September 15, 1987
between
CHRYSLER CONSORTIUM CORPORATION,
as Owner Participant
and
OHIO EDISON COMPANY,
as Lessee
=============================================================
Sale and Leaseback of an Undivided Interest in
Beaver Valley Nuclear Power Plant Unit 2
=============================================================
AMENDMENT NO. 1, dated as of November 5, 1992, to
CORRECTIVE TAX INDEMNIFICATION AGREEMENT, dated as of
September 15, 1987, between CHRYSLER CONSORTIUM CORPORATION,
a Delaware corporation (the "Owner Participant"), and OHIO
EDISON COMPANY, an Ohio corporation (the "Lessee").
Capitalized terms not otherwise defined herein shall have the
meaning set forth in an Appendix A to the Corrective
Participation Agreement, dated as of September 15, 1987,
among the Owner Participant, the Original Loan Participants
listed on Schedule 1 thereto, BVPS Funding Corporation, The
First National Bank of Boston, Irving Trust Company and Ohio
Edison Company, as amended from time to time (the
"Participation Agreement"), or Appendix A to the Refinancing
Agreement, dated as of October 30, 1992, among the Owner
Participant, BVPS Funding Corporation, BVPS II Funding
Corporation, The First National Bank of Boston, the Bank of
New York, and Ohio Edison Company (the "Refinancing
Agreement").
WHEREAS, the Owner Participant and the Lessee have
executed the Corrective Participation Agreement pursuant to
which the Owner Participant has caused the Owner Trustee to
purchase the Undivided Interest from the Lessee;
WHEREAS, the Owner Trustee has executed the
Facility Lease pursuant to which the Owner Trustee has leased
the Undivided Interest to the Lessee;
WHEREAS, the Lessee and the Owner Participant
desire to refinance the Fixed Rate Notes and the
Collateralized Lease Bonds and have entered into the
Refinancing Agreement; and
WHEREAS, the Owner Participant and the Lessee have
heretofore executed the Corrective Tax Indemnification
Agreement, dated as of September 15, 1987 (the "Tax
Indemnification Agreement"), and desire to amend the Tax
Indemnification Agreement as hereinafter provided to clarify
their respective rights and obligations arising from the
Refinancing;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
The Tax Indemnification Agreement is hereby
amended, effective upon the execution and delivery of this
Agreement, as follows:
1. The preamble thereof is amended by (i)
inserting the words ", as amended from time to time"
immediately after the words "and Ohio Edison Company" and
immediately before the words "(the "Participation
Agreement")" and (ii) inserting the words "or Appendix A to
the Refinancing Agreement, dated as of October 30, 1992,
among the Owner Participant, BVPS Funding Corporation, BVPS
II Funding Corporation, The First National Bank of Boston,
the Bank of New York, and the Lessee (the "Refinancing
Agreement")" immediately after the words "(the "Participation
Agreement")" and immediately before the period ending the sentence.
2. Section 1(a)(9) thereof is amended by inserting
the words "the Retirement Premium Deduction, as defined
below, the Refinancing Amortization Deductions, as defined
below," immediately after the words "the Interest
Deductions," and immediately before the words "and the
Amortization Deductions".
3. Section 1(a)(11) thereof is amended by
inserting the words "Except as otherwise provided in Section
5 of the Refinancing Agreement," immediately before the words
"Basic Rent will be paid on".
4. Section 1(a)(12) thereof is amended by
inserting the words "Except as otherwise provided in Section
5 of the Refinancing Agreement," immediately before the words
"Basic Rent will be payable in arrears".
5. Section 1(a)(13) thereof is amended (i) by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "other than (a) payment" and
(ii) by deleting in clause (b) thereof the words "six-month
period ending on each Basic Rent Payment Date," and replacing
them with the words "period to which each payment of Basic
Rent relates, as set forth in the Facility Lease,".
6. Section 1(a)(17) thereof is amended by
inserting the words "and the Refinancing Documents"
immediately after the words "the Transaction Documents" and
immediately before the words "using the accrual method".
7. Section 1(a)(18) thereof is amended by
inserting the words "and the Refinancing Documents"
immediately after the words "and the Financing Documents" and
immediately before the words "as derived from or allocable
to".
8. Section 1(a) thereof is amended by adding the
following tax assumptions at the end of said Section 1(a):
"(19) The Owner Participant will be allowed a
deduction for 100 percent of the premium paid with
respect to the Purchased Notes and the Purchased
Bonds in the taxable year of the Owner Participant
in which such premium is paid (the "Retirement
Premium Deduction"); and the Owner Participant will
be entitled to take the Retirement Premium
Deduction into account in computing the
consolidated federal income tax liability of the
Group.
(20) The Owner Participant will be allowed
current deductions for amortization of an amount
equal to the Refinancing Transaction Expenses to
the extent payable by the Owner Trustee pursuant to
Section 15(a) of the Refinancing Agreement computed
on a straight-line basis from the Purchase Date to
the end of the Basic Lease Term (the "Refinancing
Amortization Deductions"); and the Owner
Participant will be entitled to take the
Refinancing Amortization Deductions into account in
computing the consolidated federal income tax
liability of the Group."
9. Section 1(b)(9) thereof is amended by inserting
the words "the Retirement Premium Deduction, the Refinancing
Amortization Deductions" immediately after the words "the
Interest Deductions," and immediately before the words "and
the Amortization Deductions".
10. Section 1(b)(10) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "other than the amounts
described".
11. Section 1(b)(11) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "as derived from or allocable
to".
12. Section 1(b)(20) thereof is amended by
inserting the words ", the Retirement Premium Deduction, the
Refinancing Amortization Deductions" immediately after the
words "the Interest Deductions" and immediately before the
words "or the Amortization Deductions".
13. Section 1(b)(22) thereof is amended (i) by
inserting the words "and will not throughout the term of the
Facility Lease" immediately after the words "does not" and
immediately before the words "legally, beneficially or
constructively" and (ii) by inserting the words "or New
Funding Corporation" immediately after the words "or Funding
Corporation" and immediately before the words "or any Holder
of Bonds".
14. Section 1(b)(23) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the period ending the sentence.
15. Section 2(b)(1) thereof is amended by (i)
inserting the words "the Retirement Premium Deduction, the
Refinancing Amortization Deductions" immediately after the
words "the ACRS Deductions, the Interest Deductions," and
immediately before the words "or the Amortization Deductions"
and (ii) inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "other than the amounts".
16. Section 2(b)(1)(i) thereof is amended by (i)
inserting the words ", the Refinancing Documents" immediately
after the words "the Financing Documents" and immediately
before the words "or any certificate or other document" and
(ii) inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the word ", or".
17. Section 2(b)(1)(ii) thereof is amended by (i)
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "and acts specifically required"
and (ii) inserting the words or any Refinancing Document"
immediately after the words "or any Financing Document" and
immediately before the words "; provided, however,".
-------- -------
18. Section 2(b)(1)(viii) thereof is amended by
(i) inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words or any terms or provisions
thereof" and (ii) inserting the words ", New Funding
Corporation" immediately after the words "by the Lessee,
Funding Corporation" and immediately before the words "or the
Loan Participants".
19. Section 2(b)(1)(ix) thereof is amended by (i)
inserting the words "New Funding Corporation," immediately
after the words "the presence of Funding Corporation," and
immediately before the words "or any successor or assign
thereof", (ii) replacing the words "or any successor or
assign thereof" with the words "or any successors or assigns
thereof" and (iii) inserting the words "and the Refinancing
Documents" immediately after the words "and the Financing
Documents" and immediately before the word ", or".
20. Section 2(b)(1)(x) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words "(including, without limitation,
the provisions".
21. Section 2(b)(1)(xiii) thereof is amended by
inserting the words "or the Refinancing Documents"
immediately after the words "or the Financing Documents" and
immediately before the words ") of the trustee thereof,".
22. Section 2(b)(2) thereof is amended by
inserting the words "or the Refinancing Documents" (i)
immediately after the words "or Financing Documents" and
immediately before the words "(whether or not" and (ii)
immediately after the words "or the Financing Documents" and
immediately before the words ") (any such loss,
disallowance,".
23. Section 5(a) thereof is amended by (i)
inserting the words "the Retirement Premium Deduction, the
Refinancing Amortization Deductions" immediately after the
words "the Interest Deductions," and immediately before the
words "or the Amortization Deductions" and (ii) inserting the
words "or the Refinancing Documents" immediately after the
words "or the Financing Documents" and immediately before the
semicolon.
24. Section 5(b) thereof is amended by inserting
the words "the Retirement Premium Deduction, the Refinancing
Amortization Deductions" immediately after the words "the
Interest Deductions," and immediately before the words "or
the Amortization Deductions".
25. Section 5(e) thereof is amended by inserting
the words ", the Refinancing Agreement" immediately after the
words "under the Facility Lease" and immediately before the
words "or any Transaction Document".
26. Section 5(g) thereof is amended by inserting
the words "the Retirement Premium Deduction, the Refinancing
Amortization Deductions" immediately after the words "the
Interest Deductions," and immediately before the words "or
the Amortization Deductions".
27. In order to correct a typographical error,
Section 5(h) thereof is amended retroactively to the original
effective date of the Tax Indemnification Agreement by
replacing the words "Section 2(h)" with the words "Section
2(b)".
28. Section 6(e) thereof is amended by inserting
the words "or any of the Refinancing Documents" immediately
after the words "any of the Transaction Documents" and
immediately before the words ", or if and for so long".
IN WITNESS WHEREOF, the Owner Participant and the
Lessee have caused this Amendment No. 1 to Tax
Indemnification Agreement to be duly executed by their
respective officers thereunto duly authorized as of the date
set forth below.
OHIO EDISON COMPANY
By \s\ T.F. Struck, II
---------------------------
Dated: November 15, 1992
CHRYSLER CONSORTIUM CORPORATION
By \s\ R.G. Neptune
---------------------------
Dated: November 15, 1992
=============================================================
AMENDMENT NO. 2
dated as of January 12, 1993
to
CORRECTIVE
TAX INDEMNIFICATION AGREEMENT
dated as of September 15, 1987
between
CHRYSLER CONSORTIUM CORPORATION,
as Owner Participant
and
OHIO EDISON COMPANY,
as Lessee
=============================================================
Sale and Leaseback of an Undivided Interest in
Beaver Valley Nuclear Power Plant Unit 2
=============================================================
AMENDMENT NO. 2, dated as of January 12, 1993, to
CORRECTIVE TAX INDEMNIFICATION AGREEMENT, dated as of
September 15, 1987, as amended by Amendment No. 1 thereto,
dated as of November 5, 1992, between CHRYSLER CONSORTIUM
CORPORATION, a Delaware corporation (the "Owner
Participant"), and OHIO EDISON COMPANY, an Ohio corporation
(the "Lessee"). Capitalized terms not otherwise defined
herein shall have the meaning set forth in Appendix A to the
Corrective Participation Agreement, dated as of September 15,
1987, among the Owner Participant, the Original Loan
Participants listed on Schedule 1 thereto, BVPS Funding
Corporation, The First National Bank of Boston, Irving Trust
Company and Ohio Edison Company, as amended from time to time
(the "Participation Agreement"), Appendix A to the
Refinancing Agreement, dated as of October 30, 1992, among
the Owner Participant, BVPS Funding Corporation, BVPS II
Funding Corporation, The First National Bank of Boston, the
Bank of New York, and Ohio Edison Company (the "Refinancing
Agreement") or Appendix A to the Refinancing Agreement dated
as of January l, 1993, among the Owner Participant, BVPS
Funding Corporation, BVPS II Funding Corporation, The First
National Bank of Boston, the Bank of New York and Ohio Edison
Company (the "1993 Refinancing Agreement").
WHEREAS, the Owner Participant and the Lessee have
executed the Corrective Participation Agreement pursuant to
which the Owner Participant has caused the Owner Trustee to
purchase the Undivided Interest from the Lessee;
WHEREAS, the Owner Trustee has executed the
Facility Lease pursuant to which the Owner Trustee has leased
the Undivided Interest to the Lessee;
WHEREAS, the Lessee and the Owner Participant
desire to refinance the Fixed Rate Notes and the
Collateralized Lease Bonds and have entered into the 1993
Refinancing Agreement; and
WHEREAS, the Owner Participant and the Lessee have
heretofore executed the Corrective Tax Indemnification
Agreement, dated as of September 15, 1987, as amended by
Amendment No. 1 thereto, dated as of November 5, 1992 (the
"Tax Indemnification Agreement"), and desire to amend the Tax
Indemnification Agreement as hereinafter provided to clarify
their respective rights and obligations arising from the
transactions contemplated by the 1993 Refinancing Agreement;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
The Tax Indemnification Agreement is hereby
amended, effective upon the execution and delivery of this
Agreement, as follows:
1. The preamble thereof is amended by replacing
the second sentence thereof in its entirety by the following
two sentences:
"Capitalized terms not otherwise defined
herein shall have the meaning set forth in Appendix
A to the Corrective Participation Agreement, dated
as of September 15, 1987, among the Owner
Participant, the Original Loan Participants listed
on Schedule 1 thereto, BVPS Funding Corporation,
The First National Bank of Boston, Irving Trust
Company and Ohio Edison Company, as amended from
time to time (the "Participation Agreement"),
Appendix A to the Refinancing Agreement, dated as
of October 30, 1992, among the Owner Participant,
BVPS Funding Corporation, BVPS II Funding
Corporation, The First National Bank of Boston, the
Bank of New York, and Ohio Edison Company (the
"Refinancing Agreement") or Appendix A to the
Refinancing Agreement dated as of January l, 1993,
among the Owner Participant, BVPS Funding
Corporation, BVPS II Funding Corporation, The First
National Bank of Boston, the Bank of New York and
Ohio Edison Company (the "1993 Refinancing
Agreement"). The term "Refinancing Documents"
shall mean those documents, instruments, and
agreements delivered in connection with any
refinancing of the Notes, including, without
limitation, the Refinancing Agreement and the 1993
Refinancing Agreement."
2. Section 1(a)(11) thereof is amended by
restating such section in its entirety to read as follows:
"(11) Except as otherwise provided in Section
5 of the Refinancing Agreement and Section 5 of the
1993 Refinancing Agreement, Basic Rent will be paid
on December 1, 1987 (the "Interim Rent") and on the
Basic Rent Payment Dates."
3. Section 1(a)(12) thereof is amended by deleting
the sentence in its entirety and replacing it with the
following sentence:
"(12) Except as otherwise provided in Section
5 of the Refinancing Agreement and Section 5 of the
1993 Refinancing Agreement, Basic Rent will be
payable in arrears in semi-annual installments
during the Basic Lease Term and the Renewal Term as
set forth in the Facility Lease."
4. Section l(a)(19) thereof is amended by
restating such section in its entirety to read as follows:
"(19) The Owner Participant will be allowed a
deduction for (i) 100 percent of the premium paid
with respect to the Purchased Notes and the
Purchased Bonds and (ii) 100 percent of the excess
of the Redemption Price of the Fixed Rate Notes
defeased in 1993 (exclusive of the portion of such
Redemption Price representing interest accrued and
unpaid on the Fixed Rate Notes from December 1,
1992 up to, but not including, the Refunding Date)
over the principal amount thereof in each case in
the taxable year of the Owner Participant in which
such premium or excess, as the case may be, is paid
(the "Retirement Premium Deduction"); and the Owner
Participant will be entitled to take the Retirement
Premium Deduction into account in computing the
consolidated federal income tax liability of the
Group."
5. Section 1(a)(20) thereof is amended by
restating such section in its entirety to read as follows:
"(20) The Owner Participant will be allowed
current deductions for amortization of an amount
equal to the Refinancing Transaction Expenses to
the extent payable by the Owner Trustee pursuant to
Section 15(a) of the Refinancing Agreement or
Section 16(a) of the 1993 Refinancing Agreement, as
the case may be, computed on a straight-line basis
from the Purchase Date or the Refunding Date, as
the case may be, to the end of the Basic Lease Term
(the "Refinancing Amortization Deductions"); and
the Owner Participant will be entitled to take the
Refinancing Amortization Deductions into account in
computing the consolidated federal income tax
liability of the Group."
This Amendment No. 2 may be executed in any number
of counterparts and by different parties hereto on separate
counterparts, each of which, when so executed and delivered,
shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the Owner Participant and the
Lessee have caused this Amendment No. 2 to Tax
Indemnification Agreement to be duly authorized by their
respective officers thereunto duly authorized as of the date
set forth below.
OHIO EDISON COMPANY
By \s\ T.F. Struck, II
---------------------------
Dated: January 12, 1993
CHRYSLER CONSORTIUM CORPORATION
By \s\ R.G. Neptune
---------------------------
Dated: January 12, 1993
I.D.1.
===========================================================
AMENDMENT NO. 3
dated as of September 30, 1994
to
CORRECTIVE
TAX INDEMNIFICATION AGREEMENT
dated as of September 15, 1987
between
CHRYSLER CONSORTIUM CORPORATION,
as Owner Participant
and
OHIO EDISON COMPANY,
as Lessee
===========================================================
Sale and Leaseback of an Undivided Interest in
Beaver Valley Power Station Unit 2
===========================================================
AMENDMENT NO. 3, dated as of September 30, 1994
("Amendment No. 3"), to the CORRECTIVE TAX INDEMNIFICATION
AGREEMENT, dated as of September 15, 1987, between CHRYSLER
CONSORTIUM CORPORATION, a Delaware corporation (the "Owner
Participant"), and OHIO EDISON COMPANY, an Ohio corporation
(the "Lessee") as amended by Amendment No. 1 thereto dated
as of November 5, 1992 and as amended by Amendment No. 2
thereto dated as of January 12, 1993 (the "Tax
Indemnification Agreement"). Capitalized terms not
otherwise defined herein shall have the meaning set forth
in Appendix A to the Corrective Participation Agreement,
dated as of September 15, 1987, among the Owner
Participant, the Original Loan Participants listed on
Schedule 1 thereto, BVPS Funding Corporation, The First
National Bank of Boston, Irving Trust Company and Ohio
Edison Company, as amended from time to time (the
"Participation Agreement"), Appendix A to the Refinancing
Agreement, dated as of October 30, 1992, among the Owner
Participant, BVPS Funding Corporation, BVPS II Funding
Corporation, The First National Bank of Boston, the Bank of
New York and Ohio Edison Company (the "Refinancing
Agreement") or Appendix A to the Refinancing Agreement
dated as of January 1, 1993, among the Owner Participant,
BVPS Funding Corporation, BVPS II Funding Corporation, The
First National Bank of Boston, the Bank of New York and
Ohio Edison Company (the "1993 Refinancing Agreement").
W I T N E S S E T H:
-------------------
WHEREAS, the Owner Participant and the Lessee
have executed the Participation Agreement pursuant to which
the Owner Participant has caused the Owner Trustee to
purchase the Undivided Interest from the Lessee;
WHEREAS, the Owner Trustee has executed the
Facility Lease pursuant to which the Owner Trustee has
leased the Undivided Interest to the Lessee;
WHEREAS, Section 3(d) of the Facility Lease
provides for an adjustment to Basic Rent and the Schedules
of Casualty Values, Specialty Casualty Values and Modified
Special Casualty Values in the event of a Tax Rate Change
which results in the marginal federal income tax rate
applicable to corporations ("Tax Rate") differing from the
rate assumed in the Pricing Assumptions as in effect on the
Closing Date;
WHEREAS, section 11(b)(1) of the Code, as amended
by the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-
66), increases the Tax Rate assumed to be applicable to the
Owner Participant in the Pricing Assumptions from 34% to
35%; and
WHEREAS, the Lessor and Lessee have entered into
Lease Amendment No. 4 amending Schedules 1 through 4 of the
Facility Lease to reflect the increase in the Tax Rate.
WHEREAS, the Owner Participant and the Lessee
have heretofore executed the Tax Indemnification Agreement
providing for indemnification by the Lessee against the
loss of certain tax benefits;
WHEREAS, Section 7 of the Tax Indemnification
Agreement requires an adjustment to the Tax Assumptions to
reflect adjustments to Basic Rent pursuant to Section 3(d)
of the Facility Lease;
NOW, THEREFORE, in consideration of the premises
and of other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as
follows:
1. The Tax Indemnification Agreement is
hereby amended as follows:
(i) by replacing the words
"Transaction Documents or the Financing
Documents or the Refinancing Documents" or
the words "Transaction Documents, Financing
Documents or the Refinancing Documents" with
the words "Transaction Documents, the
Financing Documents, the Refinancing
Documents or the Tax Rate Adjustment
Transaction Documents" throughout such Tax
Indemnification Agreement, except in Section
1(a)(13) thereof;
(ii) by replacing the words
"Transaction Documents and the Refinancing
Documents" with the words "Transaction
Documents, the Refinancing Documents and the
Tax Rate Adjustment Transaction Documents"
throughout such Tax Indemnification
Agreement;
(iii) by replacing the words
"Transaction Documents and the Financing
Documents and the Refinancing Documents"
with the words "Transaction Documents, the
Financing Documents, the Refinancing
Documents and the Tax Rate Adjustment
Transaction Documents" throughout such Tax
Indemnification Agreement;
(iv) by replacing the words "any
Transaction Document or any Financing
Document or any Refinancing Document" with
the words "any Transaction Document or any
Financing Document or any Refinancing
Document or any Tax Rate Adjustment
Transaction Document" throughout such Tax
Indemnification Agreement;
(v) by replacing the words "any of the
Transaction Documents or any of the
Financing Documents" with the words "any of
the Transaction Documents or any of the
Financing Documents or any of the Tax Rate
Adjustment Transaction Documents" throughout
such Tax Indemnification Agreement;
(vi) by replacing the words
"Transaction Documents, the Financing
Documents, the Refinancing Documents" with
the words "Transaction Documents, the
Financing Documents, the Refinancing
Documents, the Tax Rate Adjustment
Transaction Documents" throughout such Tax
Indemnification Agreement; and
(vii) by replacing the words "the
Facility Lease, the Refinancing Agreement or
any Transaction Document" with the words
"the Facility Lease, the Refinancing
Agreement, any Transaction Document or any
Tax Rate Adjustment Transaction Document"
throughout such Tax Indemnification
Agreement.
2. Section 1(a)(8) of the Tax
Indemnification Agreement is hereby amended in its entirety
to read, as follows:
The Owner Participant will be allowed
current deductions for amortization of the
following amounts (the "Amortization
Deductions"): (i) an amount equal to Transaction
Expenses to the extent payable by the Owner
Participant pursuant to Section 14 of the
Participation Agreement computed on a straight-
line basis over the Basic Lease Term and (ii) an
amount equal to the Tax Rate Change Transaction
Expenses payable on behalf of the Owner Trustee
pursuant to Section 5(a) of Amendment No. 6 to
the Participation Agreement dated the date
hereof, computed on a straight-line basis over
the period commencing on the Tax Rate Adjustment
Date and ending on the last day of the Basic
Lease Term; and the Owner Participant will be
entitled to take the Amortization Deductions into
account in computing the consolidated federal
income tax liability of the Group.
3. Section 1(a)(13) of the Tax
Indemnification Agreement is hereby amended by
(i) replacing the words "the Transaction Documents or the
Financing Documents or the Refinancing Documents" with the
words "the documents dated the Tax Rate Adjustment Date
delivered in connection with the tax rate adjustment (the
"Tax Rate Adjustment Transaction Documents"), the
Transaction Documents, the Financing Documents or the
Refinancing Documents", (ii) deleting the word "and"
immediately before clause (h) and replacing it with "," and
(iii) adding the following after clause (h), and before the
period:
"and (i) Supplemental Rent in the amount of
the Tax Rate Change Transaction Expenses payable
under Section 5(a) of Amendment No. 6 to the
Participation Agreement dated the date hereof".
4. Effective on and as of January 1, 1993,
Section 1(a)(14) of the Tax Indemnification Agreement is
hereby amended in its entirety to read, as follows:
"Without giving effect to any
credits against tax, the Owner
Participant's marginal federal rate of
income tax is (i) 39.950685% for its
taxable year ending December 31, 1987,
(ii) 34% for each taxable year
thereafter through December 31, 1992,
and (iii) 35% for its taxable year
ended December 31, 1993 and each
taxable year thereafter, in each case
without giving effect to any credits
against tax, and such marginal and
effective rates will be applicable to
each item of income and deduction
contemplated by this section 1(a)."
5. Sections 1(b)(10) and 2(b)(1) of the Tax
Indemnification Agreement are amended by replacing
"Sections 1(a)(13)(a)-(h)" with "Sections 1(a)(13)(a)-(i)"
in each place it appears.
6. Section 2(b)(1) of the Tax
Indemnification Agreement is amended by adding after
"Lessee," as it appears in subsection (xiv) of said Section
2(b)(1), the following:
"or (xv) any adjustment to Basic Rent or any
schedule pursuant to Section 3(d) of the Facility
Lease,"
7. Except as amended hereby, the Tax
Indemnification Agreement shall survive and continue in
full force and effect.
8. This Amendment No. 3 may be executed in
any number of counterparts (and each of the parties hereto
shall not be required to execute the same counterpart).
Each counterpart of this Amendment No. 3, including a
signature page executed by each of the parties hereto shall
be an original of this Amendment No. 3, but all of such
counterparts together shall constitute one instrument.
9. This Amendment No. 3 shall in all
respects be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the Owner Participant and the
Lessee have caused this Amendment No. 3 to the Tax
Indemnification Agreement to be duly executed as of the
date set forth above by their respective officers thereunto
duly authorized.
OHIO EDISON COMPANY
By \s\ T.F. Struck, II
--------------------------
Name: T.F. Struck, II
--------------------
Title: Assistant Treasurer
--------------------
CHRYSLER CONSORTIUM CORPORATION
By \s\Richard G. Neptune
--------------------------
Name: Richard G. Neptune
--------------------
Title: Vice President
--------------------
