0000950152-95-001699.txt : 19950811 0000950152-95-001699.hdr.sgml : 19950811 ACCESSION NUMBER: 0000950152-95-001699 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 18 FILED AS OF DATE: 19950810 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: OHIO EDISON CO CENTRAL INDEX KEY: 0000073960 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 340437786 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 033-61713 FILM NUMBER: 95560461 BUSINESS ADDRESS: STREET 1: 76 S MAIN ST CITY: AKRON STATE: OH ZIP: 44308 BUSINESS PHONE: 2163845100 S-3 1 OHIO EDISON COMPANY S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 10, 1995 Registration Nos. 33- and 33- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 OHIO EDISON COMPANY OHIO EDISON FINANCING TRUST ------------------- ------------------------- (Exact name of registrant (Exact name of registrant as specified in its charter) as specified in its charter) OHIO DELAWARE ---------------------------- --------------------------- (State or Other Jurisdiction (State or Other Jurisdiction of Incorporation or of Incorporation or Organization) Organization) 34-0437786 To Be Applied For ------------------- ------------------- (I.R.S. Employer (I.R.S. Employer Identification No.) Identification No.)
76 SOUTH MAIN STREET, AKRON, OHIO 44308 ---------------------------------------- (Address of Principal Executive Offices) Registrants' Telephone Number Including Area Code: (216) 384-5100 ------------------------ N. C. BRINK SECRETARY 76 SOUTH MAIN STREET AKRON, OHIO 44308 (216) 384-5504 --------------------------------------------------------- (Name, Address and Telephone Number of Agent for Service) ------------------------ 2 The Commission is requested to mail signed copies of all orders, notices and communications to: J.H. BYINGTON, JR. VINCENT PAGANO, JR. WINTHROP, STIMSON, PUTNAM & ROBERTS SIMPSON THACHER & BARTLETT ONE BATTERY PARK PLAZA 425 LEXINGTON AVENUE NEW YORK, N.Y. 10004-1490 NEW YORK, N.Y. 10017-3909
------------------------ Approximate date of commencement of proposed sale to public: AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT. ------------------------------------------------------------ If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. / / If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / ------------------------------- CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM AGGREGATE PROPOSED MAXIMUM TITLE OF EACH CLASS OF SECURITIES AMOUNT BEING OFFERING PRICE OFFERING PRICE AMOUNT OF BEING REGISTERED REGISTERED (1) PER UNIT (2) (2)(3) REGISTRATION FEE ------------------------------------------------------------------------------------------------------------------- Ohio Edison Financing Trust [____]% Trust Preferred Capital Securities, Series A . . . . . . 4,600,000 Preferred $25.00 $115,000,000 $39,660 Securities ------------------------------------------------------------------------------------------------------------------- Ohio Edison Company Guarantee with respect to Ohio Edison Financing Trust [____]% Trust Preferred Capital Securities, Series A(4) . . . . . . . . . . . -------------------------------------------------------------------------------------------------------------------
3 ---------------------------------------------------------------------------------------------------------- Ohio Edison Company [____]% Junior Subordinated Debentures, Series A, Due 2025(5) . . . . . . Total . . . . . . . . . . 4,600,000 Preferred $25.00 $115,000,000 $39,660 Securities ==========================================================================================================
(1) Includes 600,000 Preferred Securities issuable upon the exercise of the Underwriters' option to purchase Preferred Securities solely to cover over-allotments, if any. (2) Assumed solely for the purpose of calculating the registration fee. (3) Exclusive of accrued distributions, if any. (4) No separate consideration will be received for Ohio Edison Company Guarantee. (5) The Junior Subordinated Debentures will be purchased by Ohio Edison Financing Trust with the proceeds of the sale of the Preferred Securities. No separate consideration will be received for the Junior Subordinated Debentures. ------------------------ THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. 4 Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. PRELIMINARY PROSPECTUS (Subject to Completion, Issued August 10, 1995) 4,000,000 PREFERRED SECURITIES OHIO EDISON FINANCING TRUST [____]% TRUST PREFERRED CAPITAL SECURITIES, SERIES A (Liquidation Amount $25 per Preferred Security) guaranteed to the extent the Issuer has funds as set forth herein by OHIO EDISON COMPANY ------------------- The [____]% Trust Preferred Capital Securities, Series A (the "Preferred Securities"), representing the undivided beneficial trust interests offered hereby, are being issued by Ohio Edison Financing Trust, a statutory business trust formed under the laws of the State of Delaware (the "Issuer" or the "Trust"). Ohio Edison Company, an Ohio corporation ("Ohio Edison"), is the owner of the undivided beneficial trust interests represented by common securities (the "Common Securities"; and together with the Preferred Securities, the "Issuer Securities") issued by the Issuer. The Issuer exists for the sole purpose of issuing its trust interests (represented by the Preferred Securities and the Common Securities) and investing the proceeds thereof in [____]% Junior Subordinated Debentures, Series A, Due 2025 (the "Subordinated Debentures") issued by Ohio Edison. The trust interests represented by the Preferred Securities will have a preference under certain circumstances with respect to cash distributions and amounts payable on liquidation, redemption or otherwise over the trust interests represented by the Common Securities issued by the Issuer. See "Description of the Preferred Securities -- Subordination of Common Securities." Holders of the Preferred Securities will be entitled to receive cumulative cash distributions accruing from the date of original issuance and payable quarterly in arrears on the last -1- 5 day of March, June, September and December of each year, commencing [__________], 1995, at the rate of [____]% per annum. Ohio Edison has the right to defer payments of interest on the Subordinated Debentures by extending the interest payment period thereon at any time for up to 20 consecutive quarters (each an "Extension Period"). If interest payments are so deferred, distributions on the Preferred Securities will also be deferred. During an Extension Period, distributions will continue to accrue, and holders of Preferred Securities will be required to accrue interest income for United States Federal income tax purposes. See "Description of the Subordinated Debentures -- Option to Extend Interest Payment Period" and "United States Taxation -- Potential Extension of Interest Payment Period and Original Issue Discount." The payment of distributions, out of moneys held by the Issuer, and payments on liquidation of the Issuer or the redemption of Preferred Securities, as set forth below, are guaranteed to the extent set forth herein by Ohio Edison (the "Guarantee"). See "Description of the Guarantee". If Ohio Edison fails to make interest payments on the Subordinated Debentures held by the Issuer, the Issuer will have insufficient funds to pay distributions on the Preferred Securities. The Guarantee does not cover payment of distributions when the Issuer does not have sufficient funds to pay such distributions. In such event, the remedy of a holder of Preferred Securities is to enforce the rights of the Issuer under the Subordinated Debentures held by the Issuer. Ohio Edison's obligations under the Guarantee are subordinate and junior in right of payment to all other liabilities of Ohio Edison except any liabilities that may be made pari passu expressly by their terms. The Preferred Securities will be redeemed upon maturity of the Subordinated Debentures. The Subordinated Debentures mature on ________, 2025, but the maturity date may be extended once only, for up to an additional 19 years at the option of Ohio Edison, provided certain conditions are met. See "Description of the Subordinated Debentures -- Option to Extend Maturity Date." The Subordinated Debentures are redeemable by Ohio Edison, in whole at any time or in part from time to time, on or after _____, 2000, at a redemption price equal to 100% of the principal amount of the Subordinated Debentures being redeemed. If Ohio Edison redeems Subordinated Debentures, the Issuer must redeem Issuer Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Subordinated Debentures so redeemed at $25 per Preferred Security plus accrued and unpaid distributions thereon (the "Redemption Price") to but excluding the date fixed for redemption. See "Description of the Preferred Securities -- Mandatory Redemption." In addition, upon the occurrence of a Special Event (as defined herein) arising from a change in law or a change in legal interpretation, unless the Subordinated Debentures are redeemed in the limited circumstances described herein, the Issuer shall -2- 6 be dissolved, with the result that the Subordinated Debentures will be distributed to the holders of the Preferred Securities, on a pro rata basis, in lieu of any cash distribution. See "Description of the Preferred Securities -- Special Event Redemption or Distribution." In certain circumstances, Ohio Edison will have the right to redeem the Subordinated Debentures, in whole but not in part, in lieu of a distribution of the Subordinated Debentures by the Issuer, which would result in the redemption by the Issuer of Issuer Securities in the same amount on a pro rata basis. If the Subordinated Debentures are distributed to the holders of the Preferred Securities, Ohio Edison will use its best efforts to have the Subordinated Debentures listed on the New York Stock Exchange or on such other exchange as the Preferred Securities are then listed. See "Description of the Preferred Securities -- Special Event Redemption or Distribution" and "Description of the Subordinated Debentures." The Subordinated Debentures are subordinated and junior in right of payment to all Senior Indebtedness (as defined herein) of Ohio Edison. As of June 30, 1995, Ohio Edison had approximately $3,546 million of principal amount of indebtedness for borrowed money and capital lease obligations constituting Senior Indebtedness. The terms of the Subordinated Debentures do not limit Ohio Edison's ability to incur additional Senior Indebtedness. See "Description of the Subordinated Debentures -- Subordination." In the event of the liquidation of the Issuer, the holders of the Preferred Securities will be entitled to receive for each Preferred Security a liquidation amount of $25 plus accrued and unpaid distributions thereon to the date of payment, subject to certain limitations. See "Description of the Preferred Securities -- Liquidation Distribution Upon Dissolution." Application will be made to list the Preferred Securities on the New York Stock Exchange. The Preferred Securities will be represented by global certificates registered in the name of The Depository Trust Company ("DTC") or its nominee. Beneficial interests in the Preferred Securities will be shown on, and transfers thereof will be effected only through, records maintained by participants in DTC. Except as described herein, Preferred Securities in certificated form will not be issued in exchange for the global certificates. See "Description of Preferred Securities -- Book-Entry-Only Issuance -- The Depository Trust Company." ------------------ SEE "RISK FACTORS" BEGINNING ON PAGE 13 HEREOF FOR CERTAIN INFORMATION RELEVANT TO AN INVESTMENT IN THE PREFERRED SECURITIES. -3- 7 ------------------ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. PRICE $25 PER PREFERRED SECURITY AND ACCRUED DISTRIBUTIONS, IF ANY -4- 8
PRICE TO UNDERWRITING DISCOUNTS PROCEEDS TO THE PUBLIC AND COMMISSION(2) ISSUER(3),(4) ----------------- --------------------- --------------- Per Preferred Security.......................... $25.00(1) (3) $25.00 Total .......................................... $100,000,000 (3) $100,000,000
(1) Plus accrued distributions, if any from [__________], 1995. (2) The Issuer and Ohio Edison have agreed to indemnify the several Underwriters against certain liabilities, including liabilities under the Securities Act of 1933. See "Underwriting." (3) In view of the fact that the proceeds of the sale of the Preferred Securities will be used to purchase the Subordinated Debentures, the Underwriting Agreement provides that Ohio Edison will pay to the Underwriters, as compensation ("Underwriters' Compensation") for their arranging the investment therein of such proceeds, $.[____] per Preferred Security (or $[__________] in the aggregate); provided that such compensation will be $[__________] per Preferred Security sold to certain institutions. See "Underwriting". (4) Expenses of the offering, which are payable by Ohio Edison, are estimated to be $405,000. (5) The Trust and Ohio Edison have granted the Underwriters an option for 30 days to purchase up to an additional 600,000 Preferred Securities at the price to public per Preferred Security, solely to cover over-allotments. Ohio Edison will pay Underwriters' Compensation in the amounts per Preferred Security set forth in Note 3 with respect to any such additional Preferred Securities. If such option is exercised in full, the total Price to Public, Underwriting Commission and Proceeds to the Issuer will be $[__________], $[__________] and $[__________], respectively. See "Underwriting". ------------------ The Preferred Securities are offered, subject to prior sale, when, as and if accepted by the Underwriters and subject to approval of certain legal matters by Simpson Thacher & Bartlett, counsel for the Underwriters. It is expected that delivery of the Preferred Securities will be made on or about [__________], 1995 through the book-entry facilities of The Depository Trust Company against payment therefor in immediately available funds. --------------- Morgan Stanley & Co. Incorporated [__________], 1995 -5- 9 No dealer, salesman or other person has been authorized to give any information or to make any representations, other than those contained or incorporated by reference in this Prospectus, in connection with the offering made by this Prospectus, and if given or made, such information or representations must not be relied upon as having been authorized by the Company or the Underwriters. This Prospectus does not constitute an offer or a solicitation by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation. The delivery of this Prospectus at any time does not imply that the information herein is correct as of any time subsequent to the date of the Prospectus. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. ------------------ TABLE OF CONTENTS
Page ---- AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 SUMMARY INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 OHIO EDISON COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 FINANCING AND CONSTRUCTION PROGRAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 OHIO EDISON FINANCING TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 DESCRIPTION OF THE PREFERRED SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 DESCRIPTION OF THE GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 DESCRIPTION OF THE SUBORDINATED DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE SUBORDINATED DEBENTURES AND THE GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 UNITED STATES TAXATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 UNDERWRITING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 VALIDITY OF THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
-6- 10 AVAILABLE INFORMATION Ohio Edison is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information filed by Ohio Edison may be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices located at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and 7 World Trade Center, New York, New York 10048. Copies of such materials can be obtained by mail from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition, such material may also be inspected and copied at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, on which certain of Ohio Edison's securities are listed. Ohio Edison and the Issuer have filed with the Commission a registration statement on Form S-3 (herein, together with all amendments and exhibits, referred to as the "Registration Statement") under the Securities Act of 1933, as amended (the "Act"). This Prospectus does not contain all of the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission. For further information, reference is hereby made to the Registration Statement. No separate financial statements of the Issuer are included herein. Ohio Edison considers that such financial statements would not be material to holders of the Preferred Securities because (i) all of the Common Securities of the Issuer are owned by Ohio Edison, a reporting company under the Exchange Act; (ii) the Issuer has no independent operations, but exists for the sole purpose of issuing securities representing undivided beneficial interests in the assets of the Issuer and investing the proceeds thereof in the Subordinated Debentures (and engaging in those activities necessary, convenient or incidental thereto); and (iii) the obligations of the Issuer under the securities issued thereby, to the extent funds are available therefor, are fully and unconditionally guaranteed to the extent set forth herein by Ohio Edison. --------------- INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE -7- 11 The following documents filed by Ohio Edison with the Commission pursuant to the Exchange Act are incorporated herein by reference: 1. Ohio Edison's Annual Report on Form 10-K for the year ended December 31, 1994; and 2. Ohio Edison's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995 and June 30, 1995. All other documents filed by Ohio Edison pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of this offering shall be deemed to be incorporated by reference into this Prospectus and to be a part hereof from the respective dates of the filing of such documents. Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. Ohio Edison will provide without charge to each person, including a beneficial owner, to whom a copy of this Prospectus has been delivered, upon the written or oral request of any such person, a copy of any and all of the documents which are incorporated herein by reference, other than exhibits to such information (unless such exhibits are specifically incorporated by reference into such documents). Requests for such copies should be directed to Ohio Edison Company, Investor Services, 76 South Main Street, Akron, Ohio 44308, telephone number 1-800-736-3402. The information relating to Ohio Edison contained in this document does not purport to be comprehensive and should be read together with the information contained in the incorporated documents. Information relating to DTC and the book-entry only system is based upon information furnished by DTC. -8- 12 SUMMARY INFORMATION The following is qualified in its entirety by the information and financial statements (including notes) appearing elsewhere herein and in documents incorporated herein by reference. General The Preferred Securities represent undivided beneficial interests in the assets of the Trust, which will consist of the Subordinated Debentures. The Subordinated Debentures, in which the proceeds of the Preferred Securities will be invested, mature on ________, 2025, unless such maturity date is extended by Ohio Edison as described under "Description of the Subordinated Debentures -- Option to Extend Maturity Date." Distributions The distributions payable on each Preferred Security will be fixed at a rate per annum of [____]% of the stated liquidation amount of $25 per Preferred Security, will be cumulative, will accrue from [__________], 1995, the date of initial issuance of the Preferred Securities, and will be payable quarterly in arrears, on March 31, June 30, September 30 and December 31 of each year, commencing [__________], 1995, except as otherwise described below. Distributions that are in arrears for more than one quarter will accrue interest at the rate per annum of [____]% and the interest so accrued at the end of each quarter and remaining unpaid will itself bear interest (to the extent permitted by applicable law) thereafter until paid on the same basis. See "Description of Preferred Securities--Distributions". Option to Extend Interest Payment Period Ohio Edison has the right under the Indenture (as defined herein) to extend the interest payment period from time to time on the Subordinated Debentures for an Extension Period not exceeding 20 consecutive quarters, with the consequence that quarterly distributions on the Preferred Securities would be deferred (but would continue to accrue with interest thereon, including interest payable on unpaid interest, as set forth above) by the Issuer during any such Extension Period. Prior to the termination of any Extension Period, Ohio Edison may further extend the Extension Period, provided that such Extension Period together with all such previous and further extensions thereof may not exceed 20 consecutive quarters or extend beyond the maturity of the Subordinated Debentures including any extension thereof. Upon the termination of any Extension Period and the payment of all amounts then due, Ohio Edison may select a new Extension Period, subject to the above requirements. See "Description of the Preferred Securities -- Distributions" and "Description of the Subordinated Debentures -- Option to Extend Interest Payment Period". Should an Extension Period occur, each Preferred Security holder would continue to accrue interest income (as original issue discount) for United States Federal income tax purposes. As a result, such a holder would be required to include such interest in gross income for United States Federal income tax purposes in advance of the receipt of cash, and would not receive the cash from the Issuer related to such income if such holder disposed of its Preferred Securities prior to the record date for payment of distributions. See "United States Taxation -- -9- 13 Original Issue Discount." The Issuer and Ohio Edison believe that an Extension Period on the Subordinated Debentures is unlikely to occur. Mandatory Redemption Upon the repayment of the Subordinated Debentures, whether at maturity (____________, 2025) or upon earlier redemption as provided in the Indenture, the proceeds from such repayment shall be applied by the Property Trustee to redeem a Like Amount (as defined below) of Trust Securities, including Preferred Securities, upon not less than 30 nor more than 60 days' notice, at the Redemption Price equal to $25 per Preferred Security plus accrued and unpaid distributions thereon to but excluding the date for redemption. See "Description of the Preferred Securities -- Mandatory Redemption". Optional Redemption Ohio Edison has the right to redeem the Subordinated Debentures (a) on or after [__________], 2000, in whole at any time or in part from time to time, subject to the conditions described under "Description of the Subordinated Debentures -- Optional Redemption", or (b) at any time, in whole but not in part, in certain circumstances upon the occurrence and continuation of a Tax Event (as defined below), in each case at a redemption price equal to 100% of the principal amount of Subordinated Debentures being redeemed, together with any accrued but unpaid interest, including Additional Interest, if any, to the redemption date. See "Description of the Subordinated Debentures -- Optional Redemption." If Ohio Edison redeems Subordinated Debentures, the proceeds from such redemption shall be applied by the Trustee to redeem a Like Amount (as defined below) of Trust Securities, including Preferred Securities, as discussed above. Special Event Redemption or Distribution If, at any time, a Tax Event or an Investment Company Event (each a Special Event, all as defined herein) shall occur and be continuing, the Issuer shall be dissolved, except in the limited circumstances described below, with the result that, after satisfaction of liabilities to creditors of the Issuer, a Like Amount of Subordinated Debentures will be distributed to the holders of the Issuer Securities in liquidation of such holders' interests in the Issuer on a pro rata basis within 90 days following the occurrence of such Special Event; provided, however, that in the case of the occurrence of a Tax Event, Ohio Edison shall have the right, in certain circumstances, to redeem the Subordinated Debentures, in whole but not in part, for cash at a redemption price equal to 100% of the principal amount thereof within 90 days following the occurrence of such Tax Event. If the Subordinated Debentures are distributed to the holders of the Preferred Securities, Ohio Edison will use its best efforts to cause the Subordinated Debentures to be listed on the New York Stock Exchange or on such other exchange, if any, as the Preferred Securities are then listed. -10- 14 The Guarantee The Guarantee guarantees to the holders of the Preferred Securities the payment (but not the collection) of (i) any accrued and unpaid distributions required to be paid on the Preferred Securities, to the extent Ohio Edison has made a required payment of interest or principal on the Subordinated Debentures, (ii) the Redemption Price, including all accrued and unpaid distributions, with respect to Preferred Securities called for redemption by the Issuer, to the extent Ohio Edison has made a required payment of interest or principal on the Subordinated Debentures, and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Issuer (other than in connection with the distribution of the Subordinated Debentures to the holders of the Preferred Securities or a redemption of all of the Preferred Securities upon the maturity or redemption of Subordinated Debentures), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid distributions on the Preferred Securities to the date of payment, to the extent the Issuer has funds legally available therefor, and (b) the amount of assets of the Issuer remaining available for distribution to holders of the Preferred Securities in liquidation of the Issuer. The Guarantee will rank subordinate and junior in right of payment to all liabilities of Ohio Edison (except those made pari passu by their terms). See "Description of the Guarantee". Voting Rights Holders of Preferred Securities will have limited voting rights and, except for the rights of holders of Preferred Securities to appoint a Special Administrative Trustee upon the occurrence of certain events described herein, will not be entitled to vote to appoint, remove or replace, or to increase or decrease the number of, the Ohio Edison Trustees (as defined herein), which voting rights are vested exclusively in the holder of the Common Securities. See "Description of the Preferred Securities -- Voting Rights". Use of Proceeds The proceeds from the sale of the Preferred Securities offered hereby will be used by the Issuer to purchase the Subordinated Debentures issued by Ohio Edison. Ohio Edison expects to use such proceeds to retire outstanding securities and for general corporate purposes. Listing Application will be made to list the Preferred Securities as an equity security on the New York Stock Exchange under the symbol " ". Trading of the Preferred Securities on the New York Stock Exchange is expected to commence within a [___]-day period after the date of this Prospectus. -11- 15 CERTAIN CONSOLIDATED FINANCIAL INFORMATION OF OHIO EDISON (Thousands, except per share amounts, ratios and percentages)
Twelve Months Year Ended December 31,(1) Ended June 30, -------------------------- -------------- 1990 1991 1992 1993(2) 1994 1995 ---- ---- ---- ---- ---- ---- (Unaudited) Income Summary: Operating Revenues . . . . . $2,240,646 $2,358,946 $2,332,378 $2,369,940 $2,368,191 $2,363,087 Net Income . . . . . . . . . $ 281,676 $ 264,823 $ 276,986 $ 82,724 $ 303,531 $ 310,208 Earnings on Common Stock . . $ 254,048 $ 240,069 $ 253,060 $ 59,017 $ 281,852 $ 288,593 Earnings per share of Common Stock . . . . . . . . . . . $ 1.67 $ 1.60 $ 1.70 $ .39 $ 1.97 $ 2.01 Ratio of Earnings to Fixed Charges(3) . . . . . . . . . 1.97 1.95 2.01 1.12 2.24 2.27 Ratio of Earnings to Fixed Charges plus Preferred and Preference Stock Dividend Requirements (pre-income tax basis)(3) . . . . . . . . . 1.79 1.79 1.85 0.99(4) 2.06 2.09
June 30, 1995 ------------- Unaudited Outstanding Ratio ----------- ----- Capitalization Summary: Common Stockholders' Equity . . . . . . . . . . . . . . . . $2,351,346 42.4% Preferred Stock- Not Subject to Mandatory Redemption . . . . . . . . . . 328,240 6.0% Subject to Mandatory Redemption . . . . . . . . . . . . 40,000 0.7% Long-Term Debt(5) . . . . . . . . . . . . . . . . . . . . . 2,822,225 50.9% --------- ----- Total Capitalization . . . . . . . . . . . . . . . . . . . . $5,541,811 100.0% ========== =====
(1) Derived from audited financial information. (2) Includes net after tax charges of $218,377,000 ($1.43 per share) relating primarily to the termination of Perry Unit 2, partially offset by the cumulative effect of a change in accounting for unbilled revenues. (3) "Earnings" for purposes of these calculations have been computed by adding to "income before extraordinary items" all taxes based on income or profits, total interest charges and the estimated interest element of rentals charged to income. "Fixed charges" include total interest charges, the estimated interest element of rentals and subsidiary preferred stock dividend requirements, determined on a "pre-income tax" basis (computed at the effective income tax rates for the applicable periods). These ratios exclude fixed charges applicable to the guarantee of the debt of a coal supplier aggregating $16,922,000, $13,298,000, $9,762,000, $8,565,000, $7,424,000 and $6,874,000 for each of the five years in the period ended December 31, 1994 and the twelve months ended June 30, 1995, respectively. (4) Earnings were deficient in 1993 by $5,018,000 to cover fixed charges plus preferred stock dividend requirements. (5) Excludes $492,695,000 of long-term debt due to mature or subject to put options within one year. -12- 16 RISK FACTORS Prospective purchasers of Preferred Securities should carefully review the information contained elsewhere in this Prospectus and should particularly consider the following matters: SUBORDINATION OF GUARANTEE AND SUBORDINATED DEBENTURES. Ohio Edison's obligations under the Guarantee are subordinate and junior in right of payment to all other liabilities of Ohio Edison, except any liabilities that may be made pari passu expressly by their terms. Ohio Edison's obligations under the Subordinated Debentures are subordinate and junior in right of payment to Senior Indebtedness (as defined herein) of Ohio Edison. As of June 30, 1995, Ohio Edison had approximately $3,546 million of principal amount of indebtedness for borrowed money and capital lease obligations constituting Senior Indebtedness on a consolidated basis. There are no terms of the Preferred Securities, the Subordinated Debentures or the Guarantee that limit Ohio Edison's ability to incur additional indebtedness, including indebtedness that would rank senior to the Subordinated Debentures and the Guarantee. See "Description of the Guarantee -- Status of the Guarantee" and "Description of the Subordinated Debentures -- Subordination". The ability of the Issuer to pay amounts due on the Preferred Securities is solely dependent upon Ohio Edison making payments on the Subordinated Debentures as and when required. OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES. Ohio Edison has the right under the Indenture to extend the interest payment period from time to time on the Subordinated Debentures for an Extension Period not exceeding 20 consecutive quarters. Upon the termination of any Extension Period and the payment of all amounts then due, Ohio Edison may select a new Extension Period, subject to the requirements described herein. During any Extension Period, quarterly distributions on the Preferred Securities would be deferred (but would continue to accrue with interest thereon) by the Issuer. In the event that Ohio Edison exercises this right, Ohio Edison may not, during an Extension Period, (a) declare or pay dividends on, or make a distribution with respect to, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of its capital stock, or (b) make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by Ohio Edison that rank pari passu with or junior to the Subordinated Debentures, or (c) make any guarantee payment with respect to the foregoing (other than payments under the Guarantee); provided, however, that restriction (a) above does not apply to any stock dividends paid by Ohio Edison where the dividend stock is the same as that on which the dividend is paid. Prior to the termination of any Extension Period, Ohio Edison may further extend the interest payment period, provided that such Extension Period together with all such previous and -13- 17 further extensions thereof may not exceed 20 consecutive quarters and that such Extension Period may not extend beyond the maturity date of the Subordinated Debentures (including any extension thereof). If Ohio Edison should determine to exercise its extension right in the future, the market price of the Preferred Securities is likely to be affected. The Issuer and Ohio Edison believe that such an extension of an interest payment period on the Subordinated Debentures is unlikely to occur. See "Description of the Preferred Securities -- Distributions" and "Description of the Subordinated Debentures -- Option to Extend Interest Payment Period." If an Extension Period occurs and continues for six quarterly distribution periods or longer, the holders of a majority in liquidation amount of the Preferred Securities will have the right to appoint a Special Administrative Trustee as discussed below. Should an Extension Period occur, each Preferred Security holder would continue to accrue interest income for United States Federal income tax purposes. As a result, such a holder would be required to include such interest in gross income for United States Federal income tax purposes in advance of the receipt of cash, and would not receive the cash from the Issuer related to such income if such holder disposed of its Preferred Securities prior to the record date for payment of distributions. See "United States Taxation -- Original Issue Discount." RIGHTS UNDER THE GUARANTEE. The Guarantee will be qualified as an indenture under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Bank of New York will act as indenture trustee under the Guarantee for the purposes of compliance with the Trust Indenture Act (the "Guarantee Trustee"). The Guarantee Trustee will hold the Guarantee for the benefit of the holders of the Preferred Securities. The Guarantee guarantees to the holders of the Preferred Securities the payment (but not the collection) of (i) any accrued and unpaid distributions required to be paid on the Preferred Securities, to the extent Ohio Edison has made a required payment of interest or principal on the Subordinated Debentures, (ii) the Redemption Price, including all accrued and unpaid distributions, with respect to Preferred Securities called for redemption by the Issuer, to the extent Ohio Edison has made a required payment of interest or principal on the Subordinated Debentures, and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Issuer (other than in connection with the distribution of the Subordinated Debentures to the holders of the Preferred Securities or a redemption of all of the Preferred Securities upon the maturity or redemption of Subordinated Debentures), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid distributions on the Preferred Securities to the date of payment, to the extent the Issuer has funds legally available therefor and -14- 18 (b) the amount of assets of the Issuer remaining available for distribution to holders of the Preferred Securities in liquidation of the Issuer. The holders of a majority in liquidation amount of the Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under the Guarantee. If the Guarantee Trustee fails to enforce the Guarantee, any holder of Preferred Securities may institute a legal proceeding directly against Ohio Edison to enforce the Guarantee Trustee's rights under the Guarantee without first instituting a legal proceeding against the Issuer, the Guarantee Trustee or any other person or entity. If Ohio Edison were to default on its obligations under the Subordinated Debentures, the Issuer would lack available funds for the payment of distributions or amounts payable on redemption of the Preferred Securities or otherwise, and in such event holders of the Preferred Securities would not be able to rely upon the Guarantee for payment of such amounts. Instead, holders of the Preferred Securities would be required to rely on the enforcement by the Property Trustee (as defined herein) of its rights, as registered holder of the Subordinated Debentures, against Ohio Edison pursuant to the terms of the Subordinated Debentures and may also vote to appoint a Special Administrative Trustee who shall have the same rights, powers and privileges as the Administrative Trustees (as defined herein) . See "Description of the Guarantee -- Status of the Guarantee" and "Description of the Subordinated Debentures -- Subordination" herein. The Trust Agreement provides that each holder of Preferred Securities by acceptance thereof agrees to the provisions of the Guarantee and the Indenture. ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES. If (i) the Issuer fails to pay distributions in full on the Preferred Securities for six consecutive quarterly distribution periods or (ii) a Trust Agreement Event of Default (as defined herein) occurs and is continuing, then the holders of Preferred Securities would be entitled, by vote of a majority in liquidation amount of the Preferred Securities, to appoint a Special Administrative Trustee, who shall have the same rights, powers and privileges as the other Administrative Trustees. In addition, the holders of a majority in aggregate liquidation amount of the Preferred Securities will have the right to (i) direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee or to direct the exercise of any trust or power conferred upon the Property Trustee under the Trust Agreement, including the right to direct the Property Trustee to exercise the remedies available to it as a holder of the Subordinated Debentures; (ii) waive any past default; or (iii) exercise any right to rescind or annul a declaration that the principal of all the Subordinated Debentures shall be due and payable; provided, however, that where a consent under the Indenture (as defined herein) requires the consent of all holders of the Subordinated Debentures affected thereby, the -15- 19 Property Trustee may only give such consent at the direction of all holders of the Preferred Securities. If the Property Trustee fails to enforce its rights under the Subordinated Debentures, a holder of Preferred Securities may, after such holder's written request to the Property Trustee to enforce such rights, institute a legal proceeding directly against Ohio Edison to enforce the Property Trustee's rights under the Subordinated Debentures without first instituting any legal proceeding against the Property Trustee or any other person or entity. If Ohio Edison exercises its right to defer payments of interest on the Subordinated Debentures (see "Option to Extend Interest Payment Period" above), appointment of a Special Administrative Trustee would be the only right of the holders of the Preferred Securities if the Issuer fails to pay distributions in full on the Preferred Securities for six consecutive quarters until expiration of the Extension Period (up to 20 consecutive quarters). SPECIAL EVENT REDEMPTION OR DISTRIBUTION. Upon the occurrence of a Special Event (as defined herein), the Issuer shall be dissolved, except in the limited circumstance described below, with the result that the Subordinated Debentures would be distributed to the holders of the Issuer Securities in connection with the liquidation of the Issuer. In certain circumstances, Ohio Edison shall have the right to redeem the Subordinated Debentures, in whole but not in part, in lieu of a distribution of the Subordinated Debentures by the Issuer, in which event the Issuer will redeem the Issuer Securities on a pro rata basis to the same extent as the Subordinated Debentures are redeemed by Ohio Edison. See "Description of the Preferred Securities -- Special Event Redemption or Distribution." Under current United States Federal income tax law, a distribution of Subordinated Debentures upon the dissolution of the Issuer would not be a taxable event to holders of the Preferred Securities. Upon occurrence of a Tax Event (as defined herein), however, a dissolution of the Issuer in which holders of the Preferred Securities receive cash would be a taxable event to such holders. See "United States Taxation -- Receipt of Subordinated Debentures or Cash Upon Liquidation of the Issuer." Because holders of Preferred Securities may receive Subordinated Debentures upon the occurrence of a Special Event, prospective purchasers of Preferred Securities are also making an investment decision with regard to the Subordinated Debentures and should carefully review all the information regarding the Subordinated Debentures contained herein. See "Description of the Preferred Securities -- Special Event Redemption or Distribution" and "Description of the Subordinated Debentures -- General." LIMITED VOTING RIGHTS. Holders of Preferred Securities will have limited voting rights and, except for the rights of holders of Preferred Securities to appoint a Special -16- 20 Administrative Trustee upon the occurrence of certain events described herein, will not be entitled to vote to appoint, remove or replace, or to increase or decrease the number of, the Ohio Edison Trustees (as defined herein), which voting rights are vested exclusively in the holder of the Common Securities. TRADING CHARACTERISTICS OF PREFERRED SECURITIES. The Preferred Securities are expected to be approved for listing as an equity security on the New York Stock Exchange, subject to official notice of issuance. Accordingly, the Preferred Securities are expected to trade at a price that takes into account the value, if any, of accrued and unpaid distributions; thus, purchasers will not pay and sellers will not receive any accrued and unpaid interest with respect to their undivided beneficial interests in Subordinated Debentures owned through the Preferred Securities that is not included in the trading price of the Preferred Securities. However, for United States Federal income tax purposes, interest on the Subordinated Debentures will be included in the gross income of holders of Preferred Securities as it accrues, rather than when it is paid, and such accrual will increase a holder's tax basis in his or her Preferred Securities. Consequently, a holder who sells Preferred Securities between record dates for payments of distributions would recognize a capital loss if the sales proceeds were less than the holder's tax basis (as increased by such accrual of interest). Subject to certain limited exceptions, capital losses may not be used to offset ordinary income for United States Federal income tax purposes. See "United States Taxation -- Income from Preferred Securities" and "-- Sale of Preferred Securities". OHIO EDISON COMPANY Ohio Edison was organized under the laws of the State of Ohio in 1930 and owns property and does business as an electric public utility in that state. Ohio Edison also has ownership interests in certain generating facilities located in the Commonwealth of Pennsylvania. Ohio Edison's principal executive offices are located at 76 South Main Street, Akron, Ohio 44308, telephone number 1-800-736-3402. Ohio Edison furnishes electric service to communities in a 7,500 square mile area of central and northeastern Ohio. It also provides transmission services to certain rural cooperatives in its service area and provides transmission services and electric energy for resale to certain municipalities in that service area. Ohio Edison also engages in the sale, purchase and interchange of electric energy with other electric companies. The area it serves has a population of approximately 2,530,000. Ohio Edison owns all of the outstanding common stock of Pennsylvania Power Company ("Penn Power"), a Pennsylvania corporation, which furnishes electric service to communities in a -17- 21 1,500 square mile area of western Pennsylvania. Penn Power also provides transmission services and electric energy for resale to certain municipalities in Pennsylvania. The area served by Penn Power has a population of approximately 340,000. Sources of generation for Ohio Edison and Penn Power (the "Companies") during the twelve months ended June 30, 1995 were 74.2% coal and 25.8% nuclear. FINANCING AND CONSTRUCTION PROGRAMS The Companies' total construction costs, excluding nuclear fuel, amounted to approximately $227,000,000 in 1994. Such costs included expenditures for the betterment of existing facilities and for the construction of transmission lines, distribution lines, substations and other additions. The Companies currently forecast expenditures of approximately $800,000,000 for property additions and improvements from 1995-1999, of which approximately $180,000,000 is applicable to 1995. The Companies' nuclear fuel investments are expected to be approximately $172,000,000 during the 1995-1999 period, of which approximately $30,000,000 is applicable to 1995. In addition, various Federal, state and local authorities regulate the Companies with regard to air and water quality and other environmental matters. The Companies have estimated additional capital expenditures for environmental compliance of approximately $70,000,000 for the period 1995 through 1999, which is included in the construction forecast. During the 1995-1999 period, maturities of, and sinking fund requirements for, long-term debt and preferred stock will require expenditures of approximately $1,301,000,000, of which approximately $227,000,000 is applicable to 1995. Nuclear fuel purchases are financed through OES Fuel, Incorporated ("OES Fuel," a wholly owned subsidiary of Ohio Edison) commercial paper and loans, both of which are supported by a $225,000,000 long-term bank credit agreement. Investments for additional nuclear fuel during the 1995-1999 period are estimated to be approximately $172,000,000, of which approximately $30,000,000 applies to 1995. During the same periods, the Companies' nuclear fuel investments are expected to be reduced by approximately $225,000,000 and $56,000,000, respectively, as the nuclear fuel is consumed. Also, the Companies have operating lease commitments of approximately $575,000,000 for the 1995-1999 period, of which approximately $106,000,000 relates to 1995. The Companies recover the cost of nuclear fuel consumed and operating leases through their electric rates. Short-term borrowings of $230,950,000 at June 30, 1995, included $114,950,000 of OES Capital, Incorporated ("OES Capital," a wholly owned subsidiary of Ohio Edison) debt, which -18- 22 is secured by customer accounts receivable. OES Capital can borrow up to $120,000,000 under a receivables financing agreement at rates based on certain bank commercial paper. The Companies also had $2,000,000 of unused short-term bank lines of credit as of June 30, 1995. In addition, $14,000,000 was available through bank facilities that provide for borrowings on a short-term basis at the banks' discretion. OES Fuel had approximately $76,000,000 of unused borrowing capability as of June 30, 1995 that was available for reloan to Ohio Edison. OES Finance, Incorporated ("OES Finance," a wholly owned subsidiary of Ohio Edison) was established during the third quarter of 1994 for the sole purpose of maintaining deposits pledged as collateral to secure reimbursement obligations relating to certain letters of credit supporting Ohio Edison's obligations to lessors under the Beaver Valley Unit 2 sale and leaseback arrangements. The deposits pledged to the financial institution providing those letters of credit are the sole property of OES Finance. In the event of liquidation, OES Finance, as a separate corporate entity, would have to satisfy its obligations to creditors before any of its assets could be made available to Ohio Edison as sole owner of OES Finance common stock. Based on their present plans, the Companies could provide for their cash requirements during the remainder of 1995 from the following sources: funds to be received from operations; available cash and temporary cash investments (approximately $60,000,000 as of June 30, 1995), of which $40,000,000 was held in escrow for the redemption of pollution control obligations under a forward refunding obligation; the issuance of long-term debt (for refunding purposes) and funds available under short-term bank credit arrangements. For the period 1995-1999, external financings may be used to provide a portion of the Companies' cash requirements. The extent and type of future financings will depend on the need for external funds as well as market conditions, the maintenance of an appropriate capital structure and the ability of the Companies to comply with coverage requirements in order to issue first mortgage bonds and preferred stock. The Companies will continue to monitor financial market conditions and, where appropriate, may take advantage of economic opportunities to refund debt and preferred stock to the extent that their financial resources permit. OHIO EDISON FINANCING TRUST The Issuer is a statutory business trust formed under Delaware law pursuant to (i) a trust agreement executed by Ohio Edison, as sponsor for the Issuer, and the trustees of such trust named therein and (ii) the filing of a certificate of trust with the Delaware Secretary of State on August 8, 1995. Such trust -19- 23 agreement will be amended and restated in its entirety (as so amended and restated, the "Trust Agreement") substantially in the form filed as an exhibit to the Registration Statement of which this Prospectus forms a part. The Trust Agreement will be qualified as an indenture under the Trust Indenture Act. The Issuer exists for the exclusive purposes of (i) issuing the Preferred Securities and Common Securities representing undivided beneficial interests in the assets of such Issuer, (ii) investing the gross proceeds of the sale of the Preferred Securities and Common Securities in the Subordinated Debentures and (iii) engaging in only those other activities necessary, convenient or incidental thereto. Pursuant to the Trust Agreement, the number of Ohio Edison Trustees will initially be four. Two of the Ohio Edison Trustees (the "Administrative Trustees") will be persons who are employees or officers of or who are affiliated with Ohio Edison. The third trustee will be a financial institution that maintains its principal place of business in the State of Delaware and is unaffiliated with Ohio Edison (the "Delaware Trustee"). The fourth trustee will be a financial institution which will serve as property trustee under the Trust Agreement and as indenture trustee for purposes of the Trust Indenture Act (the "Property Trustee"). The Administrative Trustees, the Delaware Trustee and the Property Trustee are sometimes referred to collectively herein as the "Ohio Edison Trustees". Initially, The Bank of New York, a New York banking corporation, and The Bank of New York (Delaware), a Delaware banking corporation, will be the Property Trustee and the Delaware Trustee, respectively, until removed or replaced by the holder of the Common Securities. The Bank of New York will also act as Guarantee Trustee and as indenture trustee under the Indenture. All of the Common Securities will be owned by Ohio Edison. The Common Securities will rank pari passu, and payments will be made thereon pro rata, with the Preferred Securities, except that upon the occurrence and continuance of a Trust Agreement Event of Default, the rights of the holders of the Common Securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the Preferred Securities. Ohio Edison will acquire Common Securities having an aggregate liquidation amount equal to 3% of the total capital of the Issuer. The Issuer has a term of approximately [55] years, but may terminate earlier as provided in the Trust Agreement. CONDUCT OF THE ISSUER'S AFFAIRS The Issuer's business and affairs will be conducted by the Ohio Edison Trustees. As described above, the Trust will not engage in any business or activities other than those activities necessary, convenient or incidental to issuance of the Issuer Securities and investment of the proceeds of such issuance in the -20- 24 Subordinated Debentures. The holder of the Common Securities, or the holders of a majority in liquidation preference of the Preferred Securities if a Trust Agreement Event of Default has occurred and is continuing, will be entitled to appoint, remove or replace the Property Trustee, the Delaware Trustee and the Administrative Trustees. The duties and obligations of the Property Trustee, the Delaware Trustee and the Administrative Trustees shall be governed by the Trust Agreement, and the Property Trustee will be authorized to exercise discretion only to the extent specifically stated therein. Ohio Edison will pay all fees and expenses related to the Issuer and the issuance and sale of the Issuer Securities. The office of the Delaware Trustee in the State of Delaware is White Clay Center, Route 273, Newark, Delaware 19711. The principal place of business of the Issuer is c/o Ohio Edison Company, 76 South Main Street, Akron, Ohio 44308 (telephone number (216) 384-5100). USE OF PROCEEDS The proceeds from the sale of the Preferred Securities will be used by the Issuer to purchase the Subordinated Debentures issued by Ohio Edison, as described herein. Ohio Edison expects to use such proceeds to retire outstanding securities and for general corporate purposes. DESCRIPTION OF THE PREFERRED SECURITIES The Trust Agreement among Ohio Edison as Depositor (the "Depositor"), The Bank of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware Trustee and the two Administrative Trustees named therein, authorizes and creates the Issuer. The Property Trustee, The Bank of New York, will act as the indenture trustee for purposes of compliance with the provisions of the Trust Indenture Act. The Issuer Securities will be issued by the Administrative Trustees on behalf of the Issuer pursuant to the terms of the Trust Agreement. The Preferred Securities represent undivided beneficial interests in the assets of the Issuer and entitle the holders thereof to a preference in certain circumstances with respect to distributions and amounts payable on redemption or liquidation over the Common Securities, as well as other benefits as described in the Trust Agreement. The following summaries of certain provisions of the Trust Agreement are subject to, and are qualified in their entirety by reference to, all the provisions of the Trust Agreement, including the definitions therein of certain terms, and the Trust Indenture Act. Wherever particular sections or defined terms of the Trust Agreement are referred to, such sections or defined terms are incorporated herein by reference. -21- 25 The Trust Agreement has been filed as an exhibit to the Registration Statement of which this Prospectus forms a part. GENERAL All of the Common Securities are owned by Ohio Edison. The Common Securities rank pari passu, and payments will be made thereon pro rata, with the Preferred Securities except as described under "-- Subordination of Common Securities". (Section 4.03) The Subordinated Debentures will be held of record by the Property Trustee and held in trust for the benefit of the Trust and the holders of the Issuer Securities. (Section 2.09). The Guarantee is a full and unconditional guarantee with respect to the Preferred Securities but does not guarantee payment of distributions or amounts payable on redemption or liquidation of the Preferred Securities when the Issuer does not have sufficient available funds to pay such distributions. In such event, the remedy of a holder of Preferred Securities is to vote, together with the holders of a majority in liquidation amount of the Preferred Securities, to appoint a Special Administrative Trustee and to direct the Property Trustee to enforce the Property Trustee's rights under the Subordinated Debentures. DISTRIBUTIONS The distributions payable on each Preferred Security will be fixed at a rate per annum of [____]% of the stated liquidation amount of $25 per Preferred Security. Distributions that are in arrears for more than one quarter will accrue interest at the rate per annum of [____]% and the interest so accrued at the end of each quarter and remaining unpaid will itself bear interest (to the extent permitted by applicable law) thereafter until paid on the same basis. The term "distributions" as used herein includes any such interest payable, unless otherwise stated. The amount of distributions payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. (Sections 4.01(a) and 4.01(b)). Distributions on the Preferred Securities will be cumulative, will accrue from [__________], 1995, the date of initial issuance thereof, and will be payable quarterly in arrears, on March 31, June 30, September 30 and December 31 of each year, commencing [__________], 1995, except as otherwise described below. In the event that any date on which distributions are otherwise payable on the Preferred Securities is not a Business Day, payment of the distribution payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect to any such delay) except that, if such Business Day is in the next succeeding calendar year, payment of such distribution shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on -22- 26 such date (each date on which distributions are otherwise payable in accordance with the foregoing, a "Distribution Date"). A "Business Day" means a day other than (x) a Saturday or a Sunday, (y) a day on which banks in New York, New York are authorized or obligated by law or executive order to remain closed or (z) a day on which the principal corporate trust office of the Property Trustee or the Debenture Trustee (as defined herein) is closed for business. (Section 4.01(a)). Ohio Edison has the right, under the Indenture pursuant to which it will issue the Subordinated Debentures (the "Indenture"), to extend the interest payment period from time to time on the Subordinated Debentures for an Extension Period not exceeding 20 consecutive quarters, with the consequence that quarterly distributions on the Preferred Securities would be deferred (but would continue to accrue with interest thereon, including interest payable on unpaid interest, as set forth above) by the Issuer during any such Extension Period. In the event that Ohio Edison exercises this right, Ohio Edison may not, during an Extension Period, (a) declare or pay any dividends on, or make a distribution with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock, or (b) make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by the Company that rank pari passu with or junior to the Subordinated Debentures, or (c) make any guarantee payments with respect to the foregoing (other than payments under the Guarantee); provided, however, that restriction (a) above does not apply to any stock dividends paid by Ohio Edison where the dividend stock is the same as that on which the dividend is paid. Prior to the termination of any Extension Period, Ohio Edison may further extend the interest payment period, provided that such Extension Period together with all such previous and further extensions thereof may not exceed 20 consecutive quarters or extend beyond the maturity of the Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, Ohio Edison may select a new Extension Period, subject to the above requirements. See "Description of the Subordinated Debentures -- Interest" and "-- Option to Extend Interest Payment Period". Income of the Issuer available for distribution to the holders of the Preferred Securities will be limited to payments under the Subordinated Debentures in which the Issuer will invest the proceeds from the issuance and sale of the Preferred Securities and the Common Securities. See "Description of the Subordinated Debentures". If Ohio Edison does not make interest payments on the Subordinated Debentures, the Property Trustee will not have funds available to pay distributions on the Preferred Securities. The payment of distributions (if and to the extent the Issuer has funds legally available for the payment of such distributions and cash sufficient to make such payments) is guaranteed on a limited and subordinated basis by Ohio Edison as set forth herein under "Description of the Guarantee". -23- 27 Distributions on the Preferred Securities will be payable to the holders thereof as they appear on the register of the Issuer on the relevant record dates, which, as long as the Preferred Securities remain in book-entry-only form, will be one Business Day prior to the relevant Distribution Date. Subject to any applicable laws and regulations and the provisions of the Trust Agreement, each such payment will be made as described under "Book-Entry-Only Issuance -- The Depository Trust Company" below. In the event the Preferred Securities do not remain in book-entry-only form, the relevant record date shall be the date 15 days prior to the relevant Distribution Date. (Section 4.01(d)). MANDATORY REDEMPTION The Subordinated Debentures will mature on __________, 2025, unless the maturity date is extended at the option of Ohio Edison (provided certain conditions are met). Upon the repayment of the Subordinated Debentures, whether at maturity or upon earlier redemption as provided in the Indenture, the proceeds from such repayment shall be applied by the Trustee to redeem a Like Amount (as defined below) of Preferred Securities, upon not less than 30 nor more than 60 days' notice, at the Redemption Price. Such payment in redemption shall be due without limitation and in all events. See "Description of the Subordinated Debentures -- Optional Redemption." Ohio Edison has the right to redeem the Subordinated Debentures (a) on or after [__________], 2000, in whole or in part, subject to the conditions described under "Description of the Subordinated Debentures -- Optional Redemption", or (b) at any time, in whole but not in part, in certain circumstances upon the occurrence and continuation of a Tax Event (as defined below). See "Description of the Subordinated Debentures -- Optional Redemption." SPECIAL EVENT REDEMPTION OR DISTRIBUTION "Tax Event" means the receipt by the Administrative Trustees of an opinion of counsel experienced in such matters to the effect that, as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws or treaties (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, (b) any amendment to or change in an interpretation or application of such laws or regulations by any legislative body, court, governmental agency or regulatory authority (including the enactment of any legislation and the publication of any judicial decision or regulatory determination on or after the date of the issuance of the Preferred Securities), (c) any interpretation or pronouncement of any such body, court, agency or authority that provides for a position with respect to such laws or regulations that differs from the theretofore generally accepted position, or (d) any action taken by any governmental agency or regulatory authority, which amendment or change is -24- 28 enacted, promulgated or effective, or which interpretation or pronouncement is issued or announced, or which action is taken, in each case on or after the date of the issuance of the Preferred Securities, there is more than an insubstantial risk that (i) the Issuer is, or will be, subject to United States Federal income tax with respect to income accrued or received on the Subordinated Debentures, (ii) interest payable on the Subordinated Debentures is not, or will not be, fully deductible by Ohio Edison for United States Federal income tax purposes or (iii) the Issuer is, or will be, subject to more than a de minimis amount of other taxes, duties or other governmental charges (a "Dissolution Tax Opinion"). "Investment Company Event" means the receipt by the Administrative Trustees of an opinion of counsel experienced in practice under the Investment Company Act of 1940, as amended (the "1940 Act"), to the effect that as a result of the occurrence of a change in law or regulation by any legislative body, court, governmental agency or regulatory authority (a "Change in 1940 Act Law"), the Issuer is or will be considered an "investment company" which is required to be registered under the 1940 Act, which Change in 1940 Act Law becomes effective on or after the date of the issuance of the Preferred Securities. If, at any time, a Tax Event or an Investment Company Event (each, a "Special Event") shall occur and be continuing, the Issuer shall, except in the limited circumstances described below, be dissolved with the result that, after satisfaction of liabilities to creditors of the Issuer, a Like Amount of Subordinated Debentures will be distributed to the holders of the Issuer Securities in liquidation of such holders' interests in the Issuer on a pro rata basis within 90 days following the occurrence of such Special Event; provided, however, that in the case of the occurrence of a Tax Event, such dissolution and distribution shall be conditioned on the Administrative Trustees' receipt of an opinion of counsel experienced in such matters (a "No Recognition Opinion"), which opinion may rely on published revenue rulings of the Internal Revenue Service, to the effect that the holders of the Issuer Securities will not recognize any gain or loss for United States Federal income tax purposes as a result of such dissolution and distribution of Subordinated Debentures; and provided, further, that, if at the time there is available to the Issuer the opportunity to eliminate, within such 90-day period, the Special Event by taking some ministerial action, such as filing a form or making an election or pursuing some other reasonable measure that will have no adverse effect on the Issuer, Ohio Edison or the holders of the Issuer Securities, the Issuer will pursue such measure in lieu of dissolution. Furthermore, if in the case of the occurrence of a Tax Event, after receipt of a Dissolution Tax Opinion by the Administrative Trustees (i) the Company has received an opinion of counsel experienced in such matters (a "Redemption Tax Opinion") to the effect that, as a result of a Tax Event, there is more than an insubstantial risk that Ohio Edison would be precluded from -25- 29 deducting the interest on the Subordinated Debentures for United States Federal income tax purposes even if the Subordinated Debentures were distributed to the holders of Issuer Securities in liquidation of such holders' interests in the Issuer as described above, or (ii) the Administrative Trustees shall have been informed by such tax counsel that it cannot deliver a No Recognition Opinion to the Issuer, Ohio Edison shall have the right, upon not less than 30 nor more than 60 days notice, to redeem the Subordinated Debentures, in whole but not in part, for cash within 90 days following the occurrence of such Tax Event, and, following such redemption, a Like Amount of Issuer Securities shall be redeemed by the Issuer at the Redemption Price on a pro rata basis; provided, however, that, if at the time there is available to Ohio Edison or the Issuer the opportunity to eliminate, within such 90-day period, the Tax Event by taking some ministerial action, such as filing a form or making an election or pursuing some other similar reasonable measure which has no adverse effect on the Issuer, Ohio Edison or the holders of the Issuer Securities, Ohio Edison or the Issuer will pursue such measure in lieu of redemption. (Section 9.05) If the Subordinated Debentures are distributed to the holders of the Preferred Securities, Ohio Edison will use its best efforts to cause the Subordinated Debentures to be listed on the New York Stock Exchange or on such other exchange, if any, as the Preferred Securities are then listed. (Section 9.05) After the date for any distribution of Subordinated Debentures upon dissolution of the Issuer, (i) the Preferred Securities will no longer be deemed to be outstanding, (ii) DTC or its nominee, as the record holder of the Preferred Securities, will receive a registered global certificate or certificate representing the Subordinated Debentures to be delivered upon such distribution, and (iii) any certificates representing Preferred Securities not held by DTC or its nominee will be deemed to represent a Like Amount of Subordinated Debentures, with an interest rate identical to the distribution rate of, and accrued and unpaid interest equal to accrued and unpaid distributions on, such Preferred Securities, until such certificates are presented to Ohio Edison or its agent for transfer or reissuance. "Like Amount" means (i) with respect to a redemption of Preferred Securities, Preferred Securities having a liquidation amount equal to the principal amount of Subordinated Debentures to be contemporaneously redeemed in accordance with the Indenture and the proceeds of which will be used to pay the Redemption Price of such Preferred Securities and (ii) with respect to a distribution to holders of Preferred Securities of Subordinated Debentures in connection with a liquidation of the Issuer, Subordinated Debentures having a principal amount equal to the liquidation amount of the Preferred Securities of the holder to whom such Subordinated Debentures are distributed. -26- 30 REDEMPTION PROCEDURES Preferred Securities redeemed on each redemption date shall be redeemed at the Redemption Price with the proceeds from the contemporaneous redemption of Subordinated Debentures. Redemptions of the Preferred Securities shall be made and the Redemption Price shall be deemed payable on each Redemption Date only to the extent that the Issuer has funds legally available for the payment of such Redemption Price. (Section 4.02(c)). See also "-- Subordination of Common Securities". If the Issuer gives a notice of redemption in respect of Preferred Securities, then, by 12:00 noon, New York time, on the Redemption Date, the Property Trustee will irrevocably deposit with DTC funds sufficient to pay the applicable Redemption Price and will give DTC irrevocable instructions and authority to pay the Redemption Price to the holders of the Preferred Securities. See "Book-Entry-Only Issuance -- The Depository Trust Company". If the Preferred Securities are no longer in book-entry-only form, the Issuer will irrevocably deposit with the paying agent for the Preferred Securities funds sufficient to pay the applicable Redemption Price and will give such paying agent irrevocable instructions and authority to pay the Redemption Price to the holders thereof upon surrender of their certificates evidencing Preferred Securities. Notwithstanding the foregoing, distributions payable on or prior to the Redemption Date for any Preferred Securities called for redemption shall be payable to the holders of such Preferred Securities on the relevant record dates for the related Distribution Dates. If notice of redemption shall have been given and funds deposited as required, then upon the Redemption Date, all rights of holders of such Preferred Securities so called for redemption will cease, except the right of the holders of such Preferred Securities to receive the Redemption Price, but without interest on such Redemption Price, and such Preferred Securities will cease to be outstanding. In the event that any date fixed for redemption of Preferred Securities is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay), except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day. In the event that payment of the Redemption Price in respect of Preferred Securities called for redemption is improperly withheld or refused and not paid either by the Issuer or by Ohio Edison pursuant to the Guarantee described herein under "Description of the Guarantee", distributions on such Preferred Securities will continue to accrue at the then applicable rate, from the original Redemption Date to the date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating the Redemption Price. (Section 4.02(d)) -27- 31 Subject to applicable law (including, without limitation, United States Federal securities law), Ohio Edison or its subsidiaries may at any time and from time to time purchase outstanding Preferred Securities by tender, in the open market or by private agreement. Payment of the Redemption Price on the Preferred Securities to holders of Preferred Securities shall be made to the holders of record thereof as they appear on the register for the Preferred Securities on the relevant record date, which shall be one Business Day prior to the relevant Redemption Date; provided, however, that in the event that the Preferred Securities do not remain in book-entry-only form, the relevant record date shall be the date 15 days prior to the Redemption Date. (Section 4.02(e)). If less than all the Issuer Securities are to be redeemed on a Redemption Date, then the aggregate liquidation amount of such securities to be redeemed shall be allocated 3% to the Common Securities and 97% to the Preferred Securities. The particular Preferred Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Property Trustee from the outstanding Preferred Securities not previously called for redemption, by such method as the Property Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to $25 or integral multiples thereof) of the liquidation amount of Preferred Securities of a denomination larger than $25. The Property Trustee shall promptly notify the security registrar in writing of the Preferred Securities selected for redemption and, in the case of any Preferred Securities selected for partial redemption, the liquidation preference thereof to be redeemed. For all purposes of the Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Preferred Securities shall relate, in the case of any Preferred Securities redeemed or to be redeemed only in part, to the portion of the liquidation amount of Preferred Securities that has been or is to be redeemed. (Section 4.02(f)). SUBORDINATION OF COMMON SECURITIES Payment of distributions on, and the Redemption Price of, the Issuer Securities, as applicable, shall be made pro rata based on the liquidation amount of the Issuer Securities; provided, however, that if on any Distribution Date or Redemption Date a Trust Agreement Event of Default (as defined below, see "-- Events of Default; Notice") shall have occurred and be continuing, no payment of any Distribution on, or Redemption Price of, any Common Security, and no other payment on account of the redemption, liquidation or other acquisition of Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions on all outstanding Preferred Securities for all Distribution periods terminating on or prior -28- 32 thereto, or in the case of payment of the Redemption Price the full amount of such Redemption Price on all outstanding Preferred Securities, shall have been made or provided for, and all funds available to the Property Trustee shall first be applied to the payment in full in cash of all Distributions on, or Redemption Price of, Preferred Securities then due and payable. (Section 4.03(a)). In the case of any Trust Agreement Event of Default (as defined herein) resulting from an "Event of Default" under the Indenture, the holder of Common Securities will be deemed to have waived any such Trust Agreement Event of Default until the effect of all such Events of Default with respect to the Preferred Securities has been cured, waived or otherwise eliminated. Until any such Trust Agreement Events of Default have been so cured, waived or otherwise eliminated, the Property Trustee shall act solely on behalf of the holders of the Preferred Securities and not the holder of the Common Securities, and only the holders of the Preferred Securities will have the right to direct the Property Trustee to act on their behalf. (Section 4.03(b)) LIQUIDATION DISTRIBUTION UPON DISSOLUTION Pursuant to the Trust Agreement, the Issuer shall terminate and shall be liquidated by the Ohio Edison Trustees on the first to occur of: (i) [__________], 2050, the expiration of the term of the Trust; (ii) the bankruptcy, dissolution or liquidation of Ohio Edison; (iii) the distribution of Subordinated Debentures upon the occurrence of a Special Event; and (iv) the redemption of all of the Preferred Securities. (Sections 9.01 and 9.02). If an early termination occurs as described in clauses (ii), (iii) or (iv) above, the Issuer shall be liquidated by the Ohio Edison Trustees as expeditiously as the Ohio Edison Trustees determine to be appropriate by causing the Property Trustee to distribute to each holder of Preferred Securities and Common Securities a Like Amount of Subordinated Debentures, unless such distribution is determined by the Property Trustee not to be practical, in which event such holders will be entitled to receive, out of the assets of the Issuer available for distribution to holders after satisfaction of liabilities to creditors, an amount equal to, in the case of holders of Preferred Securities, the aggregate of the stated liquidation preference of $25 per Preferred Security plus accrued and unpaid distributions thereon to the date of payment (such amount being the "Liquidation Distribution"). If such Liquidation Distribution can be paid only in part because the Issuer has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the amounts payable directly by the Issuer on the Preferred Securities shall be paid on a pro rata basis. The holder(s) of the Common Securities will be entitled to receive distributions upon any such dissolution pro -29- 33 rata with the holders of the Preferred Securities, except that if a Trust Agreement Event of Default has occurred and is continuing, the Preferred Securities shall have a preference over the Common Securities. (Sections 9.04(a) and 9.04(d)). EVENTS OF DEFAULT; NOTICE Any one of the following events constitutes an event of default under the Trust Agreement with respect to the Preferred Securities issued thereunder (a "Trust Agreement Event of Default") (whatever the reason for such event of default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (i) the occurrence of an event of default under the Indenture (an "Indenture Event of Default") (see "Description of Subordinated Debentures -- Events of Default"); or (ii) default by the Property Trustee in the payment of any distribution when it becomes due and payable, and continuation of such default for a period of 10 days; or (iii) default by the Property Trustee in the payment of any Redemption Price of any Preferred Security or Common Security when it becomes due and payable; or (iv) default in the performance, or breach, in any material respect, of any covenant or warranty of the Ohio Edison Trustees in the Trust Agreement (other than a covenant or warranty a default in the performance of which or the breach of which is dealt with in clause (ii) or (iii) above), and continuation of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the defaulting Trustee or Trustees by the holders of at least 10% in liquidation amount of the outstanding Preferred Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" under the Trust Agreement. Within five Business Days after the occurrence of any Trust Agreement Event of Default, the Property Trustee shall transmit notice of any default actually known to the Property Trustee to the holders of Preferred Securities, the Administrative Trustees and the Depositor, unless such default shall have been cured or waived. (Section 8.02). Unless a Trust Agreement Event of Default shall have occurred and be continuing, the Property Trustee may be removed at any time by act of the holder of the Common Securities. If a -30- 34 Trust Agreement Event of Default has occurred and is continuing, the Property Trustee may be removed at such time by act of the holders of a majority in liquidation amount of the Preferred Securities, delivered to the Property Trustee (in its individual capacity and on behalf of the Issuer). No registration or removal of the Property Trustee and no appointment of a successor trustee shall be effective until the acceptance of appointment by the successor Property Trustee in accordance with the provisions of the Trust Agreement. (Section 8.10). If a Trust Agreement Event of Default has occurred and is continuing, the Preferred Securities shall have a preference over the Common Securities upon dissolution of the Issuer as described above. See "-- Liquidation Distribution Upon Dissolution". MERGER OR CONSOLIDATION OF AN OHIO EDISON TRUSTEE Any corporation into which either the Property Trustee, the Delaware Trustee or any Administrative Trustee that is not a natural person may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any such Ohio Edison Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of any such Ohio Edison Trustee, shall be the successor to such Ohio Edison Trustee under the Trust Agreement, provided such corporation is otherwise qualified and eligible. (Section 8.12). VOTING RIGHTS Except as provided below and under "Description of the Guarantee -- Amendments and Assignment" and as otherwise required by law and the Trust Agreement, the holders of the Preferred Securities will have no voting rights. (Section 6.01(a)). If (i) the Issuer fails to pay distributions in full on the Preferred Securities for six (6) consecutive quarterly distribution periods or (ii) a Trust Agreement Event of Default occurs and is continuing (each an "Appointment Event"), then the holders of the Preferred Securities, acting as a single class, will be entitled by a vote of a majority in liquidation amount of the Preferred Securities to appoint a Special Administrative Trustee. For purposes of determining whether the Issuer has failed to pay distributions in full for six (6) consecutive quarterly distribution periods, distributions shall be deemed to remain in arrears, notwithstanding any payments in respect thereof, until full cumulative distributions have been or contemporaneously are paid with respect to all quarterly distribution periods terminating on or prior to the date of payment of such cumulative distributions. Any holders of Preferred Securities (other than Ohio Edison or any of its -31- 35 affiliates) shall be entitled to nominate any person to be appointed as Special Administrative Trustee. Not later than 30 days after such right to appoint a Special Administrative Trustee arises, the Administrative Trustees shall convene a meeting of the holders of Preferred Securities for the purpose of appointing a Special Administrative Trustee. If the Administrative Trustees fail to convene such meeting within such 30-day period, the holders of not less than 10% of the aggregate stated liquidation amount of the Preferred Securities will be entitled to convene such meeting. The provisions of the Trust Agreement relating to the convening and conduct of the meetings of the holders will apply with respect to any such meeting. Any Special Administrative Trustee so appointed shall cease to be a Special Administrative Trustee if the Appointment Event pursuant to which the Special Administrative Trustee was appointed and all other Appointment Events cease to be continuing. Notwithstanding the appointment of any such Special Administrative Trustee, Ohio Edison shall retain all rights under the Indenture, including the right to defer payments of interest by extending the interest payment period as provided under "Description of the Subordinated Debentures -- Option to Extend Interest Payment Period." If such an extension occurs, there will be no Indenture Event of Default and, consequently, no Trust Agreement Event of Default, for failure to make any scheduled interest payment during the Extension Period on the date originally scheduled. Holders of a majority in liquidation amount of the Preferred Securities will have the right, however, in the circumstances described above, to appoint a Special Administrative Trustee. (Section 6.01(d)) If any proposed amendment to the Trust Agreement provides for, or the Ohio Edison Trustees otherwise propose to effect, (i) any action that would adversely affect the powers, preferences or special rights of the holders of the Preferred Securities, whether by way of amendment to the Trust Agreement or otherwise or (ii) the dissolution, winding-up or termination of the Issuer, other than pursuant to the Trust Agreement, then the holders of outstanding Preferred Securities will be entitled to vote as a class on such amendment or proposal of the Ohio Edison Trustees, and such amendment or proposal shall not be effective except with the approval of the holders of 66 2/3% in liquidation preference of such outstanding Preferred Securities. (Section 6.01(c)). -32- 36 The holders of a majority in aggregate liquidation amount of the Preferred Securities will have the right to (i) direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee or to direct the exercise of any trust or power conferred upon the Property Trustee under the Trust Agreement, including the right to direct the Property Trustee to exercise the remedies available to it as a holder of the Subordinated Debentures under the Indenture; (ii) waive any past Indenture Event of Default that is waivable under the Indenture; or (iii) exercise any right to rescind or annul a declaration that the principal of all the Subordinated Debentures shall be due and payable; provided, however, that where a consent under the Indenture (as defined herein) requires the consent of all holders of the Subordinated Debentures affected thereby, the Property Trustee may only give such consent at the direction of all holders of the Preferred Securities. If the Property Trustee fails to enforce its rights under the Subordinated Debentures, to the fullest extent permitted by law, a holder of Preferred Securities may, after such holder's written request to the Property Trustee to enforce such rights, institute a legal proceeding directly against Ohio Edison to enforce the Property Trustee's rights under the Subordinated Debentures without first instituting any legal proceeding against the Property Trustee or any other person or entity. The Property Trustee shall notify all holders of the Preferred Securities of any notice of default received from the Debenture Trustee with respect to the Subordinated Debentures. Except with respect to directing the time, method and place of conducting a proceeding for a remedy, the Property Trustee shall not take any of the actions described in clauses (i), (ii) or (iii), unless it shall receive an opinion of counsel experienced in such matters to the effect that the Issuer will not be classified as an association taxable as a corporation for United States Federal income tax purposes on account of such action. (Section 6.01(b)). Any required approval of holders of Preferred Securities may be given at a separate meeting of holders of Preferred Securities convened for such purpose or pursuant to written consent. The Administrative Trustees will cause a notice of any meeting at which holders of Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such holders is to be taken, to be given to each holder of record of Preferred Securities in the manner set forth in the Trust Agreement. (Section 6.02). No vote or consent of the holders of Preferred Securities will be required for the Issuer to redeem and cancel Preferred Securities in accordance with the Trust Agreement. Notwithstanding that holders of Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Preferred Securities that are owned by Ohio Edison, the Ohio Edison Trustees or any affiliate of Ohio Edison or any Ohio Edison Trustee, shall (except in certain -33- 37 limited circumstances set forth in the Trust Agreement) for purposes of such vote or consent, be treated as if they were not outstanding. The procedures by which holders of Preferred Securities may exercise their voting rights are described below. See "-- Book-Entry Only Issuance -- The Depository Trust Company" below. Except in the limited circumstances described above, in connection with the appointment of a Special Administrative Trustee, and except if a Trust Agreement Event of Default has occurred and is continuing, holders of the Preferred Securities will have no rights to appoint or remove the Ohio Edison Trustees, who may be appointed, removed or replaced solely by Ohio Edison as the indirect or direct holder of all of the Common Securities. CO-PROPERTY TRUSTEES AND SEPARATE PROPERTY TRUSTEE Unless a Trust Agreement Event of Default shall have occurred and be continuing, at any time or times, for the purpose of meeting the legal requirements of the Trust Indenture Act or of any jurisdiction in which any part of the Trust Property (as defined in the Trust Agreement) may at the time be located, the holder of the Common Securities and the Administrative Trustees shall have power to appoint, and upon the written request of the Administrative Trustees, Ohio Edison, as Depositor, shall for such purpose join with the Administrative Trustees in the execution, delivery and performance of all instruments and agreements necessary or proper to appoint, one or more persons approved by the Property Trustee either to act as co-property trustee, jointly with the Property Trustee, of all or any part of such Trust Property, or to act as separate property trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such person or persons in such capacity, any property, title, right or power deemed necessary or desirable, subject to the provisions of the Trust Agreement. If Ohio Edison, as Depositor, does not join in such appointment within 15 days after the receipt by it of a request so to do, or in case an Indenture Event of Default has occurred and is continuing, the Administrative Trustees alone shall have power to make such appointment. (Section 8.09). PAYMENT AND PAYING AGENT Payments in respect of the Preferred Securities shall be made to DTC, which shall credit the relevant accounts at DTC on the applicable Distribution Dates or, if the Preferred Securities are not held by DTC, such payments shall be made by check mailed to the address of the holder entitled thereto as such address shall appear on the Register. The Paying Agent shall initially be The Bank of New York. The Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written -34- 38 notice to the Administrative Trustees, the Property Trustee and the Depositor. In the event that The Bank of New York chooses to no longer be the Paying Agent, the Administrative Trustees shall appoint a successor to act as Paying Agent (which shall be a bank or trust company acceptable to the Property Trustee and the Depositor). (Sections 4.04 and 5.09). BOOK-ENTRY-ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY DTC will act as securities depository for the Preferred Securities. The Preferred Securities will be issued only as fully-registered securities registered in the name of Cede & Co. (DTC's nominee). One or more fully-registered global Preferred Security certificates will be issued, representing in the aggregate the total number of Preferred Securities, and will be deposited with DTC. DTC is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that its participants ("Participants") deposit with DTC. DTC also facilitates the settlement of securities transactions among Participants through electronic computerized book-entry changes in Participants' accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations ("Direct Participants"). DTC is owned by a number of its Direct Participants and by the New York Stock Exchange, Inc. (the "New York Stock Exchange"), the American Stock Exchange, Inc., and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). The rules applicable to DTC and its Participants are on file with the Securities and Exchange Commission. Purchases of Preferred Securities within the DTC system must be made by or through Direct Participants, which will receive a credit for the Preferred Securities on DTC's records. The ownership interest of each actual purchaser of each Preferred Security ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchases, but Beneficial Owners are expected to receive written confirmations providing details of the transactions, as well as periodic statements of their holdings, from the Direct or Indirect Participants through which the Beneficial Owners -35- 39 purchased Preferred Securities. Transfers of ownership interests in the Preferred Securities are to be accomplished by entries made on the books of Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in Preferred Securities, except in the event that use of the book-entry system for the Preferred Securities is discontinued. DTC has no knowledge of the actual Beneficial Owners of the Preferred Securities; DTC's records reflect only the identity of the Direct Participants to whose accounts such Preferred Securities are credited, which may or may not be the Beneficial Owners. The Participants are responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Redemption notices shall be sent to DTC. If less than all of the Preferred Securities are being redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct Participant in such series to be redeemed. Although voting with respect to the Preferred Securities is limited to the holders of record of the Preferred Securities, in those cases where a vote is required, neither DTC nor Cede & Co. will itself consent or vote with respect to Preferred Securities. Under its usual procedures, DTC would mail an Omnibus Proxy to the Issuer as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the Preferred Securities are credited on the record date (identified in a listing attached to the Omnibus Proxy). Distribution payments on the Preferred Securities will be made by the Issuer to DTC. DTC's practice is to credit Direct Participants' accounts on the relevant payment date in accordance with their respective holdings shown on DTC's records unless DTC has reason to believe that it will not receive payments on such payment date. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices and will be the responsibility of such Participant and not of DTC, the Issuer or Ohio Edison, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of distributions to DTC is the responsibility of the Issuer, disbursement of such payments to Direct Participants is the responsibility of DTC, and disbursement of such payments to the Beneficial Owners is the responsibility of Direct and Indirect Participants. -36- 40 DTC may discontinue providing its services as securities depository with respect to the Preferred Securities at any time by giving 90 days' notice to the Issuer. If DTC stops providing such services and a successor securities depository is not obtained, Preferred Security certificates must be printed and delivered. Additionally, the Administrative Trustees (with the consent of Ohio Edison) could decide to discontinue use of the system of book-entry transfers through DTC (or a successor depository). In that event, definitive certificates for the Preferred Securities will be printed and delivered. The information in this section concerning DTC and DTC's book-entry system has been obtained from sources that the Issuer believes to be reliable, but the Issuer takes no responsibility for the accuracy thereof. The Issuer has no responsibility for the performance by DTC or its Participants of their respective obligations as described herein or under the rules and procedures governing their respective operations. REGISTRAR AND TRANSFER AGENT The Bank of New York will act as registrar and transfer agent for the Preferred Securities. Registration of transfers of Preferred Securities will be effected without charge by or on behalf of the Issuer, but upon payment in respect of any tax or other governmental charges which may be imposed in relation to it. The Issuer will not be required to register or cause to be registered any transfer of Preferred Securities after they have been called for redemption or during a period of 15 days immediately preceding the date on which notice identifying the serial numbers for the Preferred Securities called for redemption is mailed. CONCERNING THE PROPERTY TRUSTEE Ohio Edison and certain of its subsidiaries maintain deposit accounts and conduct other banking transactions with the Property Trustee in the ordinary course of their businesses. The Property Trustee also acts as trustee under certain indentures relating to borrowings by or for the benefit of the lessors to finance their acquisition of Ohio Edison's interest in the Perry Nuclear Power Plant and Beaver Valley Power Station in connection with the sale and leaseback of certain undivided interests in those plants. Under the sale/leaseback documents, Ohio Edison is ultimately responsible for the payment of this indebtedness. -37- 41 MISCELLANEOUS The Preferred Securities will be approved for listing on the New York Stock Exchange, subject to official notice of issuance. The Administrative Trustees are authorized and directed to conduct the affairs of the Issuer and to operate the Issuer so that the Issuer will not be deemed to be an "investment company" required to be registered under the 1940 Act or taxed as a corporation for United States Federal income tax purposes and so that the Subordinated Debentures will be treated as indebtedness of Ohio Edison for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the certificate of trust or the Trust Agreement, that the Depositor or the Administrative Trustees determine in their discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect the interests of the holders of the Preferred Securities. Holders of the Preferred Securities have no preemptive rights. DESCRIPTION OF THE GUARANTEE Set forth below is a summary of information concerning the Guarantee that will be executed and delivered by Ohio Edison for the benefit of the holders from time to time of Preferred Securities. The Guarantee will be qualified as an indenture under the Trust Indenture Act. The Bank of New York will act as Guarantee Trustee under the Guarantee for the purposes of compliance with the Trust Indenture Act. The terms of the Guarantee will be those set forth in such Guarantee and those made part of such Guarantee by the Trust Indenture Act. The summary is subject in all respects to the provisions of, and is qualified in its entirety by reference to, the Guarantee, which is filed as an exhibit to the Registration Statement of which this Prospectus forms a part, and the Trust Indenture Act. The Guarantee Trustee will hold the Guarantee for the benefit of the holders of the Preferred Securities. GENERAL Ohio Edison will fully and unconditionally agree, to the extent described herein, to pay the Guarantee Payments (as defined below) in full to the holders of the Preferred Securities (except to the extent paid by or on behalf of the Issuer), as and when due, regardless of any defense, right of set-off or counterclaim that the Issuer may have or assert. The following payments with respect to the Preferred Securities, to the extent not paid by or on behalf of the Issuer (the "Guarantee Payments"), will be subject to the Guarantee (without -38- 42 duplication): (i) any accrued and unpaid distributions required to be paid on the Preferred Securities, to the extent Ohio Edison has made a required payment of interest or principal on the Subordinated Debentures, (ii) the redemption price, including all accrued and unpaid distributions to the date of redemption (the "Redemption Price"), with respect to any Preferred Securities called for redemption by the Issuer, to the extent Ohio Edison has made a required payment of interest or principal on the Subordinated Debentures and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Issuer (other than in connection with the distribution of the Subordinated Debentures to the holders of the Preferred Securities or a redemption of all of the Preferred Securities upon the maturity or redemption of the Subordinated Debentures), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid distributions on the Preferred Securities to the date of payment, to the extent the Issuer has funds available therefor, and (b) the amount of assets of the Issuer remaining available for distribution to holders of Preferred Securities in liquidation of the Issuer. Ohio Edison's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by Ohio Edison to the holders of Preferred Securities or by causing the Issuer to pay such amounts to such holders. The Guarantee will be a full and unconditional guarantee with respect to the Preferred Securities issued by the Issuer from the time of issuance of the Preferred Securities, but will not apply to any payment of distributions due to the extent that the Issuer shall lack funds legally available therefor as a result of a failure by Ohio Edison to make required payments of interest or principal on the Subordinated Debentures. If Ohio Edison does not make interest payments on the Subordinated Debentures held by the Issuer, the Issuer will not have funds legally available for, and will not pay, distributions on the Preferred Securities. The Guarantee will rank subordinate and junior in right of payment to all liabilities of Ohio Edison (except those made pari passu by their terms). See "-- Status of the Guarantee". AMENDMENTS AND ASSIGNMENT Except with respect to any changes that do not adversely affect the rights of holders of Preferred Securities (in which case no vote will be required), the terms of the Guarantee may be changed only with the prior approval of the holders of not less than 66 2/3% in liquidation amount of the outstanding Preferred Securities. All guarantees and agreements contained in the Guarantee shall bind the successors, assigns, receivers, trustees and representatives of Ohio Edison and shall inure to the benefit of the holders of the Preferred Securities then outstanding. -39- 43 EVENTS OF DEFAULT An event of default under the Guarantee will occur upon the failure of Ohio Edison to perform any of its payment obligations thereunder. The holders of a majority in liquidation amount of the Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of the Guarantee or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under the Guarantee. If the Guarantee Trustee fails to enforce the Guarantee, any holder of Preferred Securities may institute a legal proceeding directly against Ohio Edison to enforce the Guarantee Trustee's rights under such Guarantee without first instituting a legal proceeding against the Issuer, the Guarantee Trustee or any other person or entity. Ohio Edison will be required to provide annually to the Guarantee Trustee a statement as to the performance by Ohio Edison of certain of its obligations under the Guarantee and as to any default in such performance. Ohio Edison will also be required to file annually with the Guarantee Trustee an officer's certificate as to Ohio Edison's compliance with all conditions under the Guarantee. INFORMATION CONCERNING THE GUARANTEE TRUSTEE The Guarantee Trustee, prior to the occurrence of a default by Ohio Edison in performance of the Guarantee, undertakes to perform only such duties as are specifically set forth in the Guarantee and, after default with respect to the Guarantee, must exercise the same degree of care as a prudent individual would exercise in the conduct of his or her own affairs. Subject to this provision, the Guarantee Trustee is under no obligation to exercise any of the powers vested in it by the Guarantee at the request of any holder of Preferred Securities unless it is offered reasonable indemnity against the costs, expenses and liabilities that might be incurred thereby. TERMINATION OF THE GUARANTEE The Guarantee will terminate and be of no further force and effect upon full payment of the Redemption Price of all Preferred Securities, the distribution of Subordinated Debentures to holders of Preferred Securities in exchange for all of the Preferred Securities or upon full payment of the amounts payable upon liquidation of the Issuer. The Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any holder of Preferred Securities must restore payment of any sums paid under the Preferred Securities or the Guarantee. -40- 44 STATUS OF THE GUARANTEE The Guarantee will constitute an unsecured obligation of Ohio Edison and will rank (i) subordinate and junior in right of payment to all liabilities of Ohio Edison (except liabilities that may be made pari passu by their terms), (ii) pari passu with the most senior preferred or preference stock now or hereafter issued by Ohio Edison and with any guarantee now or hereafter entered into by Ohio Edison in respect of any preferred or preference stock of any affiliate of Ohio Edison and (iii) senior to Ohio Edison's common stock. The Trust Agreement provides that each holder of Preferred Securities by acceptance thereof agrees to the subordination provisions and other terms of the Guarantee. The Guarantee will constitute a guarantee of payment and not of collection. Accordingly, the guaranteed party may institute a legal proceeding directly against the Guarantor to enforce its rights under the Guarantee without first instituting a legal proceeding against any other person or entity. GOVERNING LAW The Guarantee will be governed by and construed in accordance with the laws of the State of New York. DESCRIPTION OF THE SUBORDINATED DEBENTURES Set forth below is a description of the specific terms of the Subordinated Debentures in which the Issuer will invest the proceeds of the issuance and sale of the Issuer Securities. The following description is qualified in its entirety by reference to the description in the Indenture (the "Indenture") dated as of [__________], 1995, between Ohio Edison and The Bank of New York, as trustee with respect to the Subordinated Debentures (the "Debenture Trustee"), which is filed as an exhibit to the Registration Statement of which this Prospectus forms a part. Whenever particular provisions or defined terms in the Indenture are referred to herein, such provisions or defined terms are incorporated by reference herein. Section references used herein are references to provisions of the Indenture unless otherwise noted. Under certain circumstances involving the dissolution of the Issuer following the occurrence of a Special Event, Subordinated Debentures may be distributed to the holders of the Issuer Securities in liquidation of the Issuer. See "Description of the Preferred Securities -- Special Event Redemption or Distribution." If the Subordinated Debentures are distributed to the holders of the Preferred Securities, Ohio Edison will use its -41- 45 best efforts to cause the Subordinated Debentures to be listed on the New York Stock Exchange or on such other exchange, if any, as the Preferred Securities are then listed. GENERAL The Subordinated Debentures will be limited in aggregate principal amount to approximately $103,093,000, such amount being the sum of the aggregate stated liquidation preference of the Preferred Securities and the consideration paid by Ohio Edison for the Common Securities (assuming the Underwriters do not exercise their over-allotment option). The Subordinated Debentures are unsecured, subordinated obligations of Ohio Edison which rank junior to all of Ohio Edison's Senior Indebtedness (as defined below). The Subordinated Debentures are not subject to a sinking fund provision. The entire outstanding principal amount of the Subordinated Debentures will become due and payable, together with any accrued and unpaid interest thereon, including Additional Interest (as hereinafter defined), if any, on [__________], 2025, subject to the right of Ohio Edison to elect to extend the scheduled maturity date of the Subordinated Debentures to a date not later than 2044, which election is subject to Ohio Edison's satisfying certain conditions. See "-- Option to Extend Maturity." OPTIONAL REDEMPTION On or after [__________], 2000, Ohio Edison will have the right, at any time and from time to time, to redeem the Subordinated Debentures, in whole or in part, at a redemption price equal to 100% of the principal amount of the Subordinated Debentures being redeemed, together with any accrued but unpaid interest, including Additional Interest, if any, to the redemption date fixed by the Company. In certain circumstances upon the occurrence and continuation of a Tax Event, Ohio Edison shall have the right to redeem the Subordinated Debentures, in whole but not in part, within 90 days following the occurrence of such Tax Event at a redemption price equal to 100% of the principal amount of Subordinated Debentures being redeemed, together with any accrued but unpaid interest, including Additional Interest, if any, to the redemption date. See "Description of the Preferred Securities -- Special Event Redemption or Distribution." For so long as the Issuer is the holder of all the outstanding Subordinated Debentures, the proceeds of any such redemption will be used by the Issuer to redeem Preferred Securities in accordance with their terms. Ohio Edison may not redeem the Subordinated Debentures in part unless all accrued and unpaid interest (including any Additional Interest) has been paid in full on all outstanding Subordinated Debentures for all -42- 46 quarterly interest periods terminating on or prior to the date of redemption. Any optional redemption of the Subordinated Debentures shall be made upon not less than 30 nor more than 60 days' notice to the holders thereof, as provided in the Indenture. INTEREST The Subordinated Debentures shall bear interest at the rate of [____]% per annum. Such interest is payable quarterly in arrears on March 31, June 30, September 30 and December 31 of each year (each, an "Interest Payment Date"), commencing [__________], 1995, to the person in whose name each Subordinated Debenture is registered, subject to certain exceptions, at the close of business on the Business Day next preceding such Interest Payment Date. Interest will accrue quarterly (to the extent permitted by applicable law) at the rate of [___]% per annum on any interest installment in arrears for more than one quarter and on any interest on such overdue interest. It is anticipated that the Issuer will be the sole holder of the Subordinated Debentures unless the Trust is liquidated. The amount of interest payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on the Subordinated Debentures is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay), except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on the date the payment was originally payable. OPTION TO EXTEND MATURITY DATE The maturity date of the Subordinated Debentures is __________________, 2025 (the "Stated Maturity"). Ohio Edison, however, may, before the Stated Maturity, extend such maturity date no more than one time for up to an additional 19 years from the Stated Maturity; provided that (a) Ohio Edison is not in bankruptcy or otherwise insolvent, (b) Ohio Edison is not in default on the Subordinated Debentures, (c) Ohio Edison has made timely payments on the Subordinated Debentures for the immediately preceding six quarters without deferrals, (d) the Issuer is not in arrears on payments of distributions on the Preferred Securities and (e) the Subordinated Debentures are rated BBB- or higher by any one of Standard & Poor's Rating Group, Fitch Investor Services or Duff & Phelps Credit Rating Company, Baa3 or higher by Moody's Investor Service, Inc. or the equivalent for any other nationally recognized statistical rating organization. Pursuant to the Trust Agreement, the Administrative Trustees are required to give notice of Ohio Edison's election to extend the Stated Maturity to the holders of the Preferred Securities. -43- 47 OPTION TO EXTEND INTEREST PAYMENT PERIOD Ohio Edison shall have the right at any time during the term of the Subordinated Debentures to extend the interest payment period from time to time for an Extension Period not exceeding 20 consecutive quarters, during which interest will accrue but not be paid. Interest will accrue quarterly on accrued but unpaid interest during any Extension Period. At the end of the Extension Period, Ohio Edison must pay all interest then accrued and unpaid (including interest accrued on unpaid interest as described above at the rate specified for the Subordinated Debentures to the extent permitted by applicable law). During any Extension Period, Ohio Edison may not (a) declare or pay any dividends on, or make a distribution with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock, or (b) make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by the Company that rank pari passu with or junior to the Subordinated Debentures, or (c) make any guarantee payments with respect to the foregoing (other than payments under the Guarantee); provided, however, that restriction (a) above does not apply to any stock dividends paid by Ohio Edison where the dividend stock is the same as that on which the dividend is paid. Prior to the termination of any Extension Period, Ohio Edison may further extend the interest payment period, provided that such Extension Period together with all such previous and further extensions thereof shall not exceed 20 consecutive quarters at any one time or extend beyond the maturity date of the Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, Ohio Edison may select a new Extension Period, subject to the above requirements. No interest shall be due and payable during an Extension Period, except at the end thereof. So long as the Property Trustee shall be the sole holder of the Subordinated Debentures, Ohio Edison must give the Property Trustee, the Administrative Trustees and the Debenture Trustee notice of its selection of such Extension Period at least one Business Day prior to the earlier of (i) the date the distributions on the Preferred Securities are payable or (ii) the date the Administrative Trustees are required to give notice to the New York Stock Exchange or other applicable self-regulatory organization or to holders of the Preferred Securities of the record date for the payment of such distributions or the date such distributions are payable, but in any event not less than one Business Day prior to such record date. The Administrative Trustees will be required to give notice of Ohio Edison's selection of such Extension Period to the holders of the Preferred Securities. -44- 48 ADDITIONAL INTEREST If the Issuer would be required to pay any taxes, duties, assessments or governmental charges of whatever nature (other than withholding taxes) imposed by the United States or any other taxing authority, then, in any case, Ohio Edison will also pay as additional interest ("Additional Interest") such amounts as shall be required so that the net amounts received and retained by the Issuer after paying such taxes, duties, assessments or governmental charges will be not less than the amounts the Issuer would have received had no such taxes, duties, assessments or governmental charges been imposed. SET-OFF Notwithstanding anything to the contrary in the Indenture, Ohio Edison shall have the right to set-off any payment it is otherwise required to make thereunder to the extent Ohio Edison has theretofore made, or is concurrently on the date of such payment making, a payment under the Guarantee. SUBORDINATION The Subordinated Debentures are subordinate and junior in right of payment to all Senior Indebtedness (as defined below) of Ohio Edison as provided in the Indenture. The Subordinated Debentures rank equal with obligations to trade creditors of Ohio Edison. No payment of principal of (including redemption), or interest on, the Subordinated Debentures may be made if Ohio Edison has defaulted on any payment of Senior Indebtedness when due, any applicable grace period with respect to such default has ended and such default has not been cured or waived, or if the maturity of any Senior Indebtedness has been accelerated because of a default. (Section 11.02). Upon any payment or distribution of assets of Ohio Edison to creditors upon any dissolution, winding-up, liquidation or reorganization, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all principal of and interest due or to become due on, all Senior Indebtedness must be paid in full before the holders of the Subordinated Debentures are entitled to receive or retain any payment thereon. (Section 11.03). Subject to the prior payment of all Senior Indebtedness, the rights of the holders of the Subordinated Debentures will be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions applicable to Senior Indebtedness until all amounts owing on the Subordinated Debentures are paid in full. (Section 11.04). The term "Senior Indebtedness" shall mean the principal of, premium, if any, interest on and any other payment due pursuant to any of the following, whether outstanding at the date of execution of the Indenture or thereafter incurred, created or assumed: -45- 49 (a) all indebtedness of Ohio Edison on a consolidated basis (other than any obligations to trade creditors) evidenced by notes, debentures, bonds, other securities or other instruments issued by Ohio Edison for money borrowed and capitalized lease obligations; (b) all indebtedness of others of the kinds described in the preceding clause (a) assumed by or guaranteed in any manner by Ohio Edison or in effect guaranteed by Ohio Edison; and (c) all renewals, extensions or refundings of indebtedness of the kinds described in either of the preceding clauses (a) or (b), unless, in the case of any particular indebtedness, renewal, extension or refunding, the instrument creating or evidencing the same or the assumption or guarantee of the same expressly provides that such indebtedness, renewal, extension or refunding is not superior in right of payment to or is pari passu with the Subordinated Debentures. (Section 1.01). The Indenture does not limit the aggregate amount of Senior Indebtedness that may be issued. As of June 30, 1995, Ohio Edison had approximately $3,546 million of principal amount of indebtedness for borrowed money constituting Senior Indebtedness on a consolidated basis. CERTAIN COVENANTS OF OHIO EDISON Pursuant to the Indenture, Ohio Edison will covenant that it will not declare or pay any dividends or distributions (other than dividends or distributions payable in common stock of Ohio Edison) on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock, or make any guarantee payments with respect to the foregoing (other than payments under the Guarantee) if at such time (i) there shall have occurred any event of which Ohio Edison has actual knowledge that (a) with the giving of notice or the lapse of time, or both, would constitute an Indenture Event of Default and (b) in respect of which Ohio Edison shall not have taken reasonable steps to cure, (ii) Ohio Edison shall be in default with respect to its payment of any obligations under the Guarantee or (iii) Ohio Edison shall have given notice of its selection of an Extension Period as provided in the Indenture and such Extension Period, or any extension thereof, shall be continuing. (Section 10.05). Ohio Edison will also covenant (i) to maintain 100% ownership of the Common Securities of the Issuer, provided, however, that any permitted successor of Ohio Edison under the Indenture may succeed to Ohio Edison's ownership thereof, (ii) not to voluntarily dissolve, wind-up or terminate the Trust, except in connection with the distribution of the Subordinated Debentures to the holders of the Preferred Securities in liquidation of the Issuer or in connection with -46- 50 certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Issuer to remain a business trust and otherwise not to be classified as a corporation for United States Federal income tax purposes. (Section 10.05). EVENTS OF DEFAULT The Indenture provides that any one or more of the following described events, that has occurred and is continuing constitutes an Indenture Event of Default with respect to the Subordinated Debentures: (a) failure for 10 days to pay interest on the Subordinated Debentures, including any Additional Interest in respect thereof, when due (subject to the deferral of any due date in the case of an Extension Period); or (b) failure to pay principal on the Subordinated Debentures when due whether at maturity, upon redemption by declaration or otherwise; provided, however, that an extension of the maturity of the Subordinated Debentures in accordance with the terms of the Indenture and the Subordinated Debentures shall not constitute an Indenture Event of Default; or (c) failure to observe or perform in any material respect any other covenant contained in the Indenture for 90 days after written notice to Ohio Edison from the Debenture Trustee or the holders of at least 25% in principal amount of the outstanding Subordinated Debentures; or (d) certain events in bankruptcy, insolvency or reorganization of Ohio Edison. (Section 5.01). The holders of a majority in outstanding principal amount of the Subordinated Debentures have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Debenture Trustee. (Section 5.12). The Debenture Trustee or the holders of not less than 25% in aggregate outstanding principal amount of the Subordinated Debentures may declare the principal of and interest on the Subordinated Debentures due and payable immediately upon an Indenture Event of Default, and should the Debenture Trustee or such holders of Subordinated Debentures fail to make such declaration the holders of at least 25% in aggregate liquidation preference of Preferred Securities then outstanding shall have such right. The holders of a majority in aggregate outstanding principal amount of the Subordinated Debentures may annul such declaration if all defaults have been cured or waived and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration, as well as all sums paid or advanced by the Debenture Trustee and its compensation, -47- 51 expenses and advances, has been deposited with the Debenture Trustee. (Section 5.02). The holders of a majority in outstanding principal amount of the Subordinated Debentures affected thereby may, on behalf of the holders of all the Subordinated Debentures, waive any past default, except a default in the payment of principal or interest (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the Debenture Trustee) or a default in respect of a covenant or provision which under the Indenture cannot be modified or amended without the consent of the holder of each outstanding Subordinated Debenture. (Section 5.13). Ohio Edison is required to file annually with the Debenture Trustee a certificate as to whether or not Ohio Edison is in compliance with all the material terms, provisions and conditions applicable to it under the Indenture. (Section 10.04). In case any Indenture Event of Default shall occur and be continuing, the Property Trustee will have the right to declare the principal of and the interest on the Subordinated Debentures (including any Additional Interest) and any other amounts payable under the Indenture to be forthwith due and payable and to enforce its other rights as a creditor with respect to the Subordinated Debentures. A voluntary or involuntary dissolution of the Issuer prior to redemption or maturity of the Subordinated Debentures would not constitute an Indenture Event of Default. If the Issuer is dissolved, an event Ohio Edison and the Issuer consider to be remote, any of the following, among other things, could occur: (i) a distribution of the Subordinated Debentures to the holders of the Preferred Securities, (ii) a cash distribution to the holders of the Preferred Securities out of the sale of assets of the Issuer, after satisfaction of liabilities to creditors, (iii) a permitted redemption at par of the Subordinated Debentures, and a consequent redemption of a Like Amount of the Preferred Securities, at the option of Ohio Edison under the circumstances described in "-- Optional Redemption" or (iv) the rollover of the Trust Property into another entity with similar characteristics. FORM, EXCHANGE, AND TRANSFER The Subordinated Debentures will be issuable only in registered form, without coupons and only in denominations of $25 and integral multiples thereof. (Section 3.02.) Subject to the terms of the Indenture, Subordinated Debentures may be presented for registration of transfer (duly endorsed or accompanied by satisfactory instruments of transfer) at the office of the Security Registrar or at the office of any -48- 52 transfer agent designated by Ohio Edison for such purpose. No service charge will be made for any registration of transfer or exchange of Subordinated Debentures, but Ohio Edison may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith except with respect to certain exchanges not involving any transfer. Such transfer or exchange will be effected upon the Security Registrar or such transfer agent, as the case may be, being satisfied with the documents of transfer, title and identity of the person making the request. Ohio Edison has appointed the Debenture Trustee as Security Registrar. (Section 3.05.) Ohio Edison may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts. (Section 10.02.) Ohio Edison will not be required to (i) issue, register the transfer of or exchange Subordinated Debentures during a period of 15 days before the day notice of redemption identifying the Subordinated Debentures called for redemption is mailed or (ii) issue, register the transfer or exchange any Subordinated Debentures selected for redemption in whole or in part, except the unredeemed portion of any such Subordinated Debentures being redeemed in part. (Section 3.05.) PAYMENT AND PAYING AGENTS Payment of interest on a Subordinated Debenture on any Interest Payment Date will be made to the Person in whose name such Subordinated Debenture (or one or more predecessor securities) is registered at the close of business on the Regular Record Date for such interest. (Section 3.07.) Principal of and any interest on the Subordinated Debentures will be payable at the office of such Paying Agent or Paying Agents as Ohio Edison may designate for such purpose from time to time, except that at the option of Ohio Edison payment of any interest may be made by check mailed to the address of the Person entitled thereto as such address appears in the Security Register or by wire transfer. The Debenture Trustee is The Bank of New York and the corporate trust office of the Debenture Trustee in The City of New York is designated as Ohio Edison's sole Paying Agent for payments with respect to the Subordinated Debentures. Ohio Edison may at any time designate additional Paying Agents or rescind the designation of any Paying Agent or approve a change in the office through which any Paying Agent acts. (Section 10.02.) MODIFICATION OF THE INDENTURE -49- 53 The Indenture contains provisions permitting Ohio Edison and the Debenture Trustee, with the consent of the holders of not less than 66 2/3% of the principal amount of the outstanding Subordinated Debentures, to modify the Indenture in a manner affecting the rights of the holders of the Subordinated Debentures; provided that no such modification may, without the consent of the holder of each outstanding Subordinated Debenture, (i) change the fixed maturity of the Subordinated Debentures, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or modify the subordination provisions in the Indenture in a manner adverse to the holders of the Subordinated Debentures, (ii) reduce the percentage of principal amount of Subordinated Debentures, the holders of which are required to consent to any such modification of the Indenture or (iii) modify certain provisions of the Indenture relating to the waiver of past defaults or compliance by Ohio Edison with the covenants therein. The Indenture also requires the consent of the holders of the Preferred Securities in respect of certain amendments to or termination of the Indenture and in respect of compliance by Ohio Edison with certain covenants in the Indenture. (Section 9.02.) CONSOLIDATION, MERGER AND SALE Ohio Edison may not consolidate with or merge into, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person (a "successor Person"), and may not permit any Person to merge into, or convey, transfer or lease its properties and assets substantially as an entirety to, Ohio Edison unless (i) the successor Person (if any) is a corporation, partnership or trust organized and validly existing under the laws of any domestic jurisdiction and assumes Ohio Edison's obligations on the Subordinated Debentures and under the Indenture, (ii) immediately after giving effect to the transaction, and treating any indebtedness which becomes an obligation of Ohio Edison or any Subsidiary as a result of the transaction as having been incurred by it at the time of the transaction, no Indenture Event of Default, and no event which, after notice or lapse of time or both, would become an Indenture Event of Default, shall have occurred and be continuing (iii) such consolidation or merger or conveyance, transfer or lease of properties or assets of Ohio Edison is permitted under, and does not give rise to any breach or violation of, the Trust Agreement or the Guarantee and (iv) certain other conditions are met. (Section 8.01). SATISFACTION AND DISCHARGE Under the terms of the Indenture, Ohio Edison will be discharged from any and all obligations in respect of the Subordinated Debentures (except in each case for certain obligations to register the transfer or exchange of Subordinated Debentures, replace stolen, lost or mutilated Subordinated -50- 54 Debentures and hold moneys for payment in trust) if Ohio Edison deposits with the Debenture Trustee, in trust, moneys in an amount sufficient to pay all the principal of, and interest on, the Subordinated Debentures on the dates such payments are due in accordance with the terms of such Subordinated Debentures, provided that the Subordinated Debentures have become due and payable, or will become due and payable within one year whether at maturity or through redemption thereof. (Section 4.01). GOVERNING LAW The Indenture and the Subordinated Debentures will be governed by, and construed in accordance with, the laws of the State of New York. (Section 1.12). RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE SUBORDINATED DEBENTURES AND THE GUARANTEE As long as payments of interest and other payments are made when due on the Subordinated Debentures, such payments will be sufficient to cover distributions and other payments due on the Preferred Securities, primarily because (i) the aggregate principal amount of Subordinated Debentures will be equal to the sum of the aggregate stated liquidation preference of the Preferred Securities and the Common Securities; (ii) the interest rate and interest and other payment dates on the Subordinated Debentures will match the distribution rate and distribution and other payment dates for the Preferred Securities; (iii) the Trust Agreement provides that Ohio Edison shall pay for all, and the Issuer shall not be obligated to pay, directly or indirectly, for any, costs, expenses and liabilities of the Issuer, including any income taxes, duties and other governmental charges, and all costs and expenses with respect thereto, to which the Issuer may become subject, except for United States withholding taxes and the Issuer's obligations to holders of Preferred Securities under the Preferred Securities; and (iv) the Trust Agreement further provides that the Ohio Edison Trustees shall not cause or permit the Issuer to, among other things, engage in any activity that is not consistent with the limited purposes of the Issuer. Payments of distributions and other amounts due on the Preferred Securities (to the extent the Issuer has funds available for the payment of such distributions) are guaranteed by Ohio Edison as and to the extent set forth under "Description of the Guarantee." If and to the extent that Ohio Edison does not make payments on the Subordinated Debentures, the Issuer will not pay distributions or other amounts due on the Preferred Securities. If the Guarantee Trustee fails to enforce the Guarantee, a holder of a Preferred Security may institute a legal -51- 55 proceeding directly against Ohio Edison to enforce its rights under the Guarantee without first instituting a legal proceeding against the Issuer or any other person or entity. The Preferred Securities evidence the rights of the holders thereof to the benefits of the Trust, a trust that exists for the sole purpose of issuing its Issuer Securities and investing the proceeds thereof in debt securities of Ohio Edison, while the Subordinated Debentures represent indebtedness of Ohio Edison. A principal difference between the rights of a holder of a Preferred Security and a holder of a Subordinated Debenture is that a holder of a Subordinated Debenture will accrue, and (subject to the permissible extension of the interest period) is entitled to receive, interest on the principal amount of Subordinated Debentures held, while a holder of Preferred Securities is only entitled to receive distributions if and to the extent the Issuer has funds legally available for the payment of such distributions. Upon any voluntary or involuntary dissolution, winding-up or termination of the Issuer, the holders of Preferred Securities will be entitled to receive, out of assets legally available for distribution to holders, the Liquidation Distribution in cash. See "Description of the Preferred Securities -- Liquidation Distribution Upon Dissolution". Upon any voluntary or involuntary liquidation or bankruptcy of Ohio Edison, the Issuer, as holder of the Subordinated Debentures, would be a subordinated creditor of Ohio Edison, subordinated in right of payment to all Senior Indebtedness, but entitled to receive payment in full of principal and interest, before any stockholders of Ohio Edison receive payments or distributions. Since Ohio Edison is Guarantor under the Guarantee and has agreed to pay for all costs, expenses and liabilities of the Issuer (other than United States withholding taxes and other than the Issuer's obligations to holders of Preferred Securities under the Preferred Securities), the positions of a holder of Preferred Securities and a holder of Subordinated Debentures relative to other creditors and to stockholders of Ohio Edison in the event of liquidation or bankruptcy of Ohio Edison would be substantially the same. A default or event of default under any Senior Indebtedness would not constitute a default or Indenture Event of Default. In the event of payment defaults under, or acceleration of, Senior Indebtedness, the subordination provisions of the Subordinated Debentures provide that no payments may be made in respect of the Subordinated Debentures until such Senior Indebtedness has been paid in full or any payment default thereunder has been cured or waived. Failure to make required payments on the Subordinated Debentures would constitute an Indenture Event of Default. -52- 56 UNITED STATES TAXATION GENERAL This section is a summary of the principal United States Federal income tax considerations that may be relevant to prospective purchasers of Preferred Securities and represents the opinion of Winthrop, Stimson, Putnam & Roberts, counsel to Ohio Edison and the Issuer, insofar as it relates to matters of law and legal conclusions with respect thereto. This section is based upon current provisions of the Internal Revenue Code of 1986, as amended (the "Code"), existing and proposed Treasury Regulations thereunder and current administrative rulings and court decisions, all of which are subject to change (which change may be retroactive). Subsequent changes may cause tax consequences to vary substantially from the consequences described below. The following discussion does not address all United States Federal income tax matters affecting holders of Preferred Securities. Moreover, the discussion addresses the United States Federal income tax considerations of holders of Preferred Securities that are citizens or residents of the United States, corporations, partnerships or other entities created or organized in or under the laws of the United States or any political subdivision thereof or therein, or estates or trusts the income of which is subject to United States Federal income taxation regardless of its source ("U.S. Holders") and that hold the Preferred Securities as a capital asset. Except as provided below, this discussion does not address the tax consequences to holders of Preferred Securities who are not U.S. Holders ("Non-U.S. Holders"), nor does it address tax considerations applicable to holders of Preferred Securities that may be subject to special tax rules, such as banks, insurance companies, tax-exempt organizations or dealers in securities or currencies, or to holders of Preferred Securities that will hold Preferred Securities as part of a position in a "straddle" or as part of a "hedging" or "conversion" transaction for United States Federal income tax purposes or that have a "functional currency" other than the United States dollar. In addition, this discussion does not address the tax consequences to Preferred Securities that do not purchase Preferred Securities as part of their initial distribution. Accordingly, each prospective holder of Preferred Securities, including each Non-U.S. Holder, should consult, and should depend on, his, her or its own tax advisor in analyzing the United States Federal, state, local and foreign tax consequences of the purchase, ownership, sale or other disposition of Preferred Securities. While Ohio Edison believes, based upon the advice of its counsel, that the Subordinated Debentures should be treated as indebtedness for United States Federal income tax purposes, holders of Preferred Securities should note that the Internal -53- 57 Revenue Service (the "Service") may attempt to treat the Subordinated Debentures as equity rather than indebtedness for United States Federal income tax purposes. If the Service were successful in such attempt, the Preferred Securities would be subject to redemption at the option of Ohio Edison as described under "Description of the Preferred Securities -- Mandatory Redemption." INCOME FROM PREFERRED SECURITIES In the opinion of Winthrop, Stimson, Putnam & Roberts, the Issuer will not be classified as an association taxable as a corporation for United States Federal income tax purposes. Each holder of Preferred Securities will be treated as owning an undivided beneficial interest in the Subordinated Debentures. Accordingly, each U.S. Holder will be required to include in its gross income as interest its share of the original issue discount ("OID") accrued with respect to the Subordinated Debentures whether or not distributions are actually made to the holders of Preferred Securities. No portion of such income will be eligible for the dividends-received deduction. ORIGINAL ISSUE DISCOUNT Under the Indenture, Ohio Edison has the option to extend from time to time the interest payment period on the Subordinated Debentures for a period not exceeding 20 consecutive quarters but not beyond the maturity date of the Subordinated Debentures (including any extension thereof). Ohio Edison's option to extend the interest payment period will cause the Subordinated Debentures to be treated as having been issued with OID for United States Federal income tax purposes. Accordingly, a U.S. Holder will accrue OID (as interest income) in accordance with a constant yield method over the term of the Subordinated Debentures (including any Extension Period), regardless of the receipt of cash with respect to the period to which such income is attributable. As a result, U.S. Holders of record during an Extension Period will include interest in gross income in advance of the receipt of cash, and any such holders who dispose of Preferred Securities prior to the record date for the payment of distributions following such Extension Period will include interest in gross income but will not receive any cash related thereto. RECEIPT OF SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF THE ISSUER Under certain circumstances, as described under the caption "Description of the Preferred Securities -- Special Event Redemption or Distribution," Subordinated Debentures may be -54- 58 distributed to holders of Preferred Securities in exchange for the Preferred Securities and in liquidation of the Issuer. Under current law, such a distribution, for United States Federal income tax purposes, would be treated as a non-taxable event to each U.S. Holder, and each U.S. Holder would receive an aggregate tax basis in the Subordinated Debentures equal to such holder's aggregate tax basis in its Preferred Securities. A U.S Holder's holding period for the Subordinated Debentures received in liquidation of the Issuer would include the period during which such holder held the Preferred Securities. Under certain circumstances, as described under the caption "Description of Preferred Securities -- Special Event Redemption or Distribution," Subordinated Debentures may be redeemed for cash and the proceeds of such redemption distributed to holders of Preferred Securities in redemption of the Preferred Securities. Under current law, such a redemption would, for United States Federal income tax purposes, constitute a taxable disposition of the redeemed Preferred Securities, and a U.S. Holder would recognize gain or loss as if such holder had sold such redeemed Preferred Securities for cash. See "Sale of Preferred Securities." SALE OF PREFERRED SECURITIES Gain or loss will be recognized by a U.S. Holder on a sale of Preferred Securities, including a redemption for cash, and will be equal to the difference between the amount realized and such holder's adjusted tax basis in the Preferred Securities sold. A U.S. Holder's adjusted tax basis in a Preferred Security generally will equal the issue price of such Preferred Security increased by the amount of OID previously includible in the gross income of such holder and decreased by the amount of any payments received on such Preferred Security. Any gain or loss recognized by a U.S. Holder on the sale of a Preferred Security held for more than one year generally will be taxable as long-term capital gain or loss. Subject to certain limited exceptions, capital loses cannot be applied to offset ordinary income for United States Federal income tax purposes. NON-U.S. HOLDERS Under present United States Federal income tax law: (i) payments by the Issuer or any of its paying agents to any Non-U.S. Holder will not be subject to United States Federal withholding tax, provided that (a) the beneficial owner of the Preferred Security does not actually or constructively own 10% or more of the total combined voting power of all classes of stock of Ohio Edison entitled to vote, (b) the beneficial owner of the Preferred Security is not a controlled foreign corporation that is related to Ohio Edison through stock ownership, and (c) either (A) the beneficial owner of the Preferred Security certifies to -55- 59 the Issuer or its agent, under penalties of perjury, that it is not a U.S. Holder and provides its name and address or (B) a securities clearing organization, bank or other financial institution that holds customers' securities in the ordinary course of its trade or business (a "Financial Institution"), and holds the Preferred Security in such capacity, certifies to the Issuer or its agent, under penalties or perjury, that such statement has been received from the beneficial owner by it or by another Financial Institution between it and the beneficial owner and furnishes the Issuer or its agent with a copy thereof; and (ii) a Non-U.S. Holder will generally not be subject to United States Federal income or withholding tax on any gain realized upon the sale or other disposition of a Preferred Security, except that a Non-U.S. Holder will be subject to United States Federal income tax on any gain if such Non-U.S. Holder (a) is engaged in a trade or business in the United States and such gain is effectively connected to the conduct of such trade or business or (b) is an individual present in the United States for 183 days or more during the taxable year, and certain other conditions are met. INFORMATION REPORTING AND BACKUP WITHHOLDING TAX Subject to the qualifications discussed below, income on the Preferred Securities (or on a Subordinated Debenture distributed to a holder of a Preferred Security) will be reported to holders of Preferred Securities on Forms 1099, which forms should be mailed to such holders by January 31 following each calendar year. The Issuer will be obligated to report annually to Cede & Co., as holder of record of the Preferred Securities, the OID related to the Subordinated Debentures that accrued during the year. The Issuer currently intends to report such information on Form 1099 prior to January 31 following each calendar year. The Underwriters have indicated to the Issuer that, to the extent that they hold Preferred Securities as nominees for beneficial holders, they currently expect to report to such beneficial holders on Forms 1099 by January 31 following each calendar year. Under current law, holders of Preferred Securities who hold as nominees for beneficial holders will not have any obligation to report information regarding the beneficial holders to the Issuer. The Issuer, moreover, will not have any obligation to report to beneficial holders who are not also record holders. Thus, beneficial holders of Preferred Securities who hold their Preferred Securities through the Underwriters will receive Forms 1099 reflecting the income on their Preferred Securities from such nominee holders rather than from the Issuer. Payments made in respect of, and proceeds from the sale of, the Preferred Securities, or Subordinated Debentures distributed to holders of Preferred Securities, may be subject to a "backup" withholding tax of 31% unless the holder complies with certain identification requirements. Any withheld amounts will -56- 60 be allowed as a refund or a credit against the holder's United States Federal income tax liability, provided the required information is provided to the Service. These information reporting and backup withholding tax rules are subject to proposed Treasury Regulations and currently are under review by the United States Treasury. Accordingly, the application of such rules to the Preferred Securities could be changed. UNDERWRITING Under the terms and subject to the conditions contained in the Underwriting Agreement dated the date hereof, each of the Underwriters named below for whom Morgan Stanley & Co. Incorporated is acting as representative (the "Representative") has severally agreed to purchase, and the Issuer has agreed to sell to each of the Underwriters, severally, the respective number of Preferred Securities set opposite its name below:
NUMBER OF SERIES A NAME PREFERRED SECURITIES ------------ -------------------- Morgan Stanley & Co. Incorporated Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Underwriting Agreement provides that the several obligations of the Underwriters to pay for and accept delivery of the Preferred Securities are subject to the approval of certain legal matters by their counsel and to certain other conditions. In the Underwriting Agreement, the several Underwriters have agreed, subject to the terms and conditions set forth therein, to purchase all the Preferred Securities offered hereby if any of the Preferred Securities are purchased. In the event of default by an Underwriter, the Underwriting Agreement provides that, in certain circumstances, the purchase commitments of the nondefaulting Underwriters may be increased or the Underwriting Agreement may be terminated. The Underwriters initially propose to offer all or part of the Preferred Securities directly to the public at the price to public set forth on the cover page of this Prospectus, and all or part to certain dealers at a price that represents a concession not in excess of $[__________] per Preferred Security. The Underwriters may allow, and such dealers may reallow, a concession not in excess of $[__________] per Preferred Security to certain other dealers. After the initial offering of the Preferred Securities, the offering price and -57- 61 other selling terms may from time to time be varied by the Representatives. Because the proceeds of the sale of the Preferred Securities will ultimately be used to purchase the Subordinated Debentures of Ohio Edison, the Underwriting Agreement provides that Ohio Edison will pay to the Underwriters as compensation for their services, $[__________] per Preferred Security (or $[__________] in the aggregate); provided that such compensation will be $[__________] per Preferred Security sold to certain institutions. Prior to this offering, there has been no public market for the Preferred Securities. Application has been made to list the Preferred Securities on the New York Stock Exchange. Listing will be contingent upon meeting the requirements of the New York Stock Exchange, including those relating to distribution. In order to meet one such requirement, the Underwriters will undertake to sell lots of 100 or more Preferred Securities to a minimum of 400 beneficial holders. If listing is approved, trading of the Preferred Securities on the New York Stock Exchange is expected to commence within a 30-day period after the initial delivery of the Preferred Securities. The Underwriters have advised the Issuer that they intend to make a market in the Preferred Securities prior to the commencement of trading on the New York Stock Exchange. The Underwriters will have no obligation to make a market in the Preferred Securities, however, and may cease market making activities, if commenced, at any time. The Issuer and Ohio Edison have agreed to indemnify the Underwriters against, or contribute to payments that the Underwriters may be required to make in respect of, certain liabilities, including liabilities under the Securities Act of 1933, as amended. The Issuer has granted the Underwriters an option exercisable for 30 days after the date of this Prospectus to purchase up to 600,000 additional Preferred Securities to cover over-allotments, if any, at the price to public (with additional Underwriters' Compensation), as set forth on the cover page of this Prospectus. If the Underwriters exercise their over-allotment option, the Underwriters have severally agreed, subject to certain conditions, to purchase approximately the same percentage thereof that the number of Preferred Securities to be purchased by each of them, as shown in the foregoing table, bears to the number of Preferred Securities initially offered hereby. In accordance with Section 34 of the Rules of Fair Practice of the National Association of Securities Dealers, Inc., no sales of Preferred Securities may be made to a discretionary account without the prior written approval of the customer. -58- 62 EXPERTS The consolidated financial statements and related schedule incorporated by reference or included in Ohio Edison Company's Annual Report on Form 10-K, incorporated by reference in this prospectus, have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports dated February 3, 1995 with respect thereto, and are incorporated by reference herein in reliance upon the authority of said firm as experts in accounting and auditing in giving said reports. Reference is made to said reports, which include an explanatory paragraph with respect to the Company's change in its method of accounting for unbilled revenues, income taxes and post-retirement benefits other than pensions as discussed in Notes 1 and 2 to the consolidated financial statements. With respect to the unaudited interim consolidated financial information for the quarters ended March 31, 1995 and 1994, and June 30, 1995 and 1994, Arthur Andersen LLP has applied limited procedures in accordance with professional standards for reviews of that information. However, their separate reports thereon state that they did not audit and they do not express an opinion on that interim consolidated financial information. Accordingly, the degree of reliance on their reports on that information should be restricted in light of the limited nature of the review procedures applied. In addition, the accountants are not subject to the liability provisions of Section 11 of the Securities Act of 1933 for their reports on the unaudited interim consolidated financial information because those reports are not "reports" or "parts" of the registration statement prepared or certified by the accountants within the meaning of Sections 7 and 11 of the Act. VALIDITY OF THE SECURITIES Certain matters of Delaware law relating to the validity of the Preferred Securities, the validity of the Trust Agreement and the formation of the Issuer are being passed upon by Richards, Layton & Finger, special Delaware counsel to the Issuer. The validity of the Guarantee and the Subordinated Debentures will be passed upon on behalf of the Issuer and Ohio Edison by Anthony J. Alexander, Esq., Akron, Ohio, who is Senior Vice President and General Counsel of Ohio Edison, and Winthrop, Stimson, Putnam & Roberts, and on behalf of the Underwriters by Simpson Thacher & Bartlett (a partnership which includes professional corporations), counsel to the Underwriters. -59- 63 PART II. INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. Filing fees--Securities and Exchange Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 39,660 Printing and composition of registration statement, prospectus, etc. . . . . . . . . . . . . . . . . . . . . . 60,000 Services of Trustee and its counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,000 Services of Counsel--Winthrop, Stimson, Putnam & Roberts and Richards, Layton & Finger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110,000 Services of accountants--Arthur Andersen LLP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40,000 Blue Sky fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,000 New York Stock Exchange listing fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44,300 Rating fees: Moody's Investors Service, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,000 Standard & Poor's Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,300 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,740 --------- Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 405,000 =========
All of the above amounts, other than the filing fees, are estimates. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 1701.13(E) of Title 17 of Page's Ohio Revised Code Annotated gives a corporation incorporated under the laws of Ohio power to indemnify any person who is or has been a director, officer or employee of that corporation, or of another corporation at the request of that corporation, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending or completed action, suit or proceeding, criminal or civil, to which he is or may be made a party because of being or having been such director, officer or employee, provided that in connection therewith, such person is determined to have acted in good faith in what he reasonably believed to be in or not opposed to the best interest of the corporation of which he is a director, officer or employee, without reasonable cause, in the case of a criminal matter, to believe that his conduct was unlawful. The determination as to the conditions precedent to the permitted indemnification of such person is made by the directors of the indemnifying corporation acting at a meeting at which, for the purpose, any director who is a party to or threatened with any such action, suit or proceeding may not be counted in determining the existence of a quorum and may not vote. If, because of the foregoing limitations, the directors are unable to act in this regard, such determination may be made by the majority vote of the corporation's voting shareholders (or without a meeting upon two-thirds written consent of such shareholders), by judicial proceeding or by written opinion of legal counsel not retained by the corporation or any person to be indemnified during the five years preceding the date of determination. II-1 64 Section 36 of Ohio Edison Company's Code of Regulations provides as follows: "The Corporation shall indemnify any person who is or was a director, officer, employee or agent of the Corporation or any person who is or has served at the request of the Corporation as a director, officer, employee, agent or trustee of another corporation, joint venture, trust or other enterprise (as his heirs, executors and administrators) against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred by him by reason of the fact that he is or was such director, officer, employee, agent or trustee in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative to the full extent and according to the procedures and requirements set forth in any applicable law as the same may be in effect from time to time." The following resolution was adopted by the Board of Directors of Ohio Edison Company on December 15, 1992 and made applicable to this registration statement at meetings held on March 16, 1993, September 21, 1993 and October 19, 1993: "RESOLVED, FURTHER: That, in addition to and not in derogation of any other indemnity that may be available, with respect to the preparation and filing of registration statement or registration statements with the Securities and Exchange Commission in connection with the proposed issuance and sale of the Long-term Indebtedness and/or the Equity Securities of the Company authorized at this meeting, this Company indemnify and save harmless each and every officer and employee of the Company executing and preparing any such registration statement in its original or amended form and every director of the Company who was a director thereof at the time of the filing of any such registration statement in its original or amended form, against any and all expenses reasonably incurred by them or any of them in connection with any action, suit or proceeding arising out of the preparation, filing or use of any such registration statement or the related prospectus whether brought under the Securities Act of 1933 as amended, or under any other applicable law where such action, suit or proceeding is finally adjudicated in favor of such director, officer or employee and the time to appeal has expired;" Similar indemnity resolutions were adopted with respect to the Common Stock and various issues of First Mortgage Bonds, Preferred Stock and Preference Stock currently outstanding. Section 1701.13(E) of Title 17 of Page's Ohio Revised Code Annotated provides that the indemnification thereby II-2 65 permitted shall not be exclusive of any other rights that directors, officers or employees may have, including rights under insurance purchased by the corporation. Ohio Edison Company has insurance covering, subject to certain deductible provisions, its liabilities and expenses which might arise in connection with its lawful indemnification of its directors and officers for certain of their liabilities and expenses and also covering, subject to certain deductible provisions, its officers against certain other liabilities. In the Trust Agreement, Ohio Edison Company has agreed to indemnify the Trustees for, and to hold the Trustees harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the Trust Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. II-3 66 ITEM 16. EXHIBITS. 1.1 Form of Underwriting Agreement 4.1 Certificate of Trust of Ohio Edison Financing Trust 4.2 Form of Declaration of Trust of Ohio Edison Financing Trust 4.3 Form of Amended and Restated Trust Agreement of Ohio Edison Financing Trust 4.4 Form of Indenture among Ohio Edison Company, the Issuer and The Bank of New York, as Debenture Trustee 4.5 Form of Preferred Security (included in Exhibit 4.3) 4.6 Form of Subordinated Debenture (included in Exhibit 4.4) 4.7 Form of Guarantee by Ohio Edison Company and The Bank of New York, as Guarantee Trustee 5.1 Opinion of Richards, Layton & Finger, re: validity of Preferred Securities 5.2 Opinion of Anthony J. Alexander, Esq., Senior Vice President and General Counsel of Ohio Edison Company, re: validity of Guarantee and Subordinated Debentures 8.1 Opinion of Winthrop, Stimson, Putnam & Roberts re: tax matters 12.1 Computation of Consolidated Ratios of Earnings to Fixed Charges 12.2 Computation of Consolidated Ratios of Earnings to Fixed Charges and Preferred and Preference Stock Dividend Requirements 15.1 Letter re: Unaudited Interim Financial Information of Arthur Andersen LLP, independent public accountants 23.1 Consent of Arthur Andersen LLP, independent public accountants 23.2 Consent of Richards, Layton & Finger (included in Exhibit 5.1 above) 23.3 Consent of Anthony J. Alexander, Esq., (included in Exhibit 5.2 above) 23.4 Consent of Winthrop, Stimson, Putnam & Roberts (included in Exhibit 8.1 above) 24.1 Power of Attorney of Ohio Edison Company 25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as Debenture Trustee under the Indenture 25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as Trustee under the Trust Agreement of the Issuer 25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as Guarantee Trustee under the Guarantee
II-4 67 ITEM 17. UNDERTAKINGS. The undersigned Registrant, Ohio Edison Company, hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933 (the "Act"), each filing of such registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of each of the Registrants pursuant to the provisions described under Item 15 above, or otherwise, each of the Registrants has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by either of the Registrants of expenses incurred or paid by a director, officer or controlling person of such Registrant in the successful defense of an action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, each of the Registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. Each of the undersigned registrants hereby undertakes that: (1) For purposes of determining any liability under the Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrants pursuant to Rule 424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-5 68 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, OHIO EDISON COMPANY CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED THEREUNTO DULY AUTHORIZED, IN THE CITY OF AKRON AND STATE OF OHIO ON THE 10th DAY OF AUGUST, 1995. OHIO EDISON COMPANY By: W.R. HOLLAND ---------------------------- W.R. Holland President and Chief Executive Officer PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
NAME TITLE DATE W.R. Holland ------------------------- W.R. Holland President and Chief August 10, 1995 Executive Officer and Director (Principal Executive Officer) H.P. Burg ------------------------- H.P. Burg Senior Vice President August 10, 1995 and Director (Principal Financial Officer and Principal Accounting Officer) Donald C. Blasius* ------------------------- Donald C. Blasius Director August 10, 1995 Robert H. Carlson* ------------------------- Robert H. Carlson Director August 10, 1995 Robert M. Carter* ------------------------- Robert M. Carter Director August 10, 1995
II-6 69 Carol A. Cartwright* ------------------------- Carol A. Cartwright Director August 10, 1995 R.L. Loughhead* ------------------------- R.L. Loughhead Director August 10, 1995 Glenn H. Meadows* ------------------------- Glenn H. Meadows Director August 10, 1995 Paul J. Powers* ------------------------- Paul J. Powers Director August 10, 1995 Charles W. Rainger* ------------------------- Charles W. Rainger Director August 10, 1995 George M. Smart* ------------------------- George M. Smart Director August 10, 1995 Jesse T. Williams, Sr.* ------------------------- Jesse T. Williams, Sr. Director August 10, 1995 *By: H. P. Burg August 10, 1995 ------------------------- (Attorney-in-fact)
II-7 70 PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, OHIO EDISON FINANCING TRUST CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED THEREUNTO DULY AUTHORIZED, IN THE CITY OF AKRON AND STATE OF OHIO ON THE 10th DAY OF AUGUST, 1995. OHIO EDISON FINANCING TRUST By: Ohio Edison, as Depositor By: T.F. Struck II ---------------------- Name: T. F. Struck II Title: Assistant Treasurer II-8 71 EXHIBIT INDEX 1.1 Form of Underwriting Agreement 4.1 Certificate of Trust of Ohio Edison Financing Trust 4.2 Form of Declaration of Trust of Ohio Edison Financing Trust 4.3 Form of Amended and Restated Trust Agreement of Ohio Edison Financing Trust 4.4 Form of Indenture among Ohio Edison Company, the Issuer and The Bank of New York, as Debenture Trustee 4.5 Form of Preferred Security (included in Exhibit 4.3) 4.6 Form of Subordinated Debenture (included in Exhibit 4.4) 4.7 Form of Guarantee by Ohio Edison Company and The Bank of New York, as Guarantee Trustee 5.1 Opinion of Richards, Layton & Finger, re: validity of Preferred Securities 5.2 Opinion of Anthony J. Alexander, Esq., Senior Vice President and General Counsel of Ohio Edison Company, re: validity of Guarantee and Subordinated Debentures 8.1 Opinion of Winthrop, Stimson, Putnam & Roberts re: tax matters 12.1 Computation of Consolidated Ratios of Earnings to Fixed Charges 12.2 Computation of Consolidated Ratios of Earnings to Fixed Charges and Preferred and Preference Stock Dividend Requirements 15.1 Letter re: Unaudited Interim Financial Information of Arthur Andersen LLP, independent public accountants 23.1 Consent of Arthur Andersen LLP, independent public accountants 23.2 Consent of Richards, Layton & Finger (included in Exhibit 5.1 above) 23.3 Consent of Anthony J. Alexander, Esq. (included in Exhibit 5.2 above) 23.4 Consent of Winthrop, Stimson, Putnam & Roberts (included in Exhibit 8.1 above) 24.1 Power of Attorney of Ohio Edison Company 25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as Debenture Trustee under the Indenture 25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as Trustee under the Trust Agreement of the Issuer 25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as Guarantee Trustee under the Guarantee
II-9 EX-1.1 2 EXHIBIT 1.1 1 EXHIBIT 1.1 OHIO EDISON COMPANY ________ PREFERRED SECURITIES OF __% TRUST PREFERRED CAPITAL SECURITIES, SERIES A OF OHIO EDISON FINANCING TRUST UNDERWRITING AGREEMENT [__________, 199_] 2 _______, 199_ MORGAN STANLEY & CO. INCORPORATED and the other Underwriters listed on Annex A hereto C/O MORGAN STANLEY & CO. INCORPORATED 1251 AVENUE OF THE AMERICAS New York, N.Y. 10020 Dear Sirs: Ohio Edison Financing Trust, a statutory business trust formed under the laws of the State of Delaware (the "Trust"), and Ohio Edison Company, an Ohio corporation, (hereinafter called the "Company"), as owner of the trust interests represented by common securities (the "Common Securities") issued by the Trust and as guarantor (the "Guarantor"), propose that the Trust issue an aggregate number of _____ of its preferred securities (the "Preferred Securities") designated as __% Trust Preferred Capital Securities representing undivided beneficial interests in the assets of the Trust, guaranteed by the Guarantor as to the payment of distributions, and as to payments on liquidation or redemption, to the extent set forth in the Guarantee Agreement dated as of _____ , 199_ (the "Guarantee") between the Guarantor and The Bank of New York, as trustee (the "Guarantee Trustee"). The proceeds of the sale of the Preferred Securities by the Trust are to be invested in ___% Junior Subordinated Debentures, Series A, Due [2025] (the "Subordinated Debentures") of the Company, to be issued pursuant to an Indenture dated as of _____, 199_ (the "Indenture") between the Company and The Bank of New York, as trustee (the "Debenture Trustee"). The Preferred Securities shall have the designation, preferences, rights, powers and restrictions set forth in the Trust's Amended and Restated Trust Agreement (the "Trust Agreement"). The Preferred Securities and the Subordinated Debentures are more fully described in the Prospectus hereinafter referred to. The Company and the Trust have filed with the Securities and Exchange Commission (the "Commission") a registration statement (Nos. 33-_____ and 33-_____), including a prospectus relating to the Preferred Securities, the Guarantee and the Subordinated Debentures; and will file with or electronically transmit for filing to, the Commission a prospectus supplement specifically relating to the terms of the Preferred Securities, the Guarantee and the Subordinated Debentures pursuant to Rule 424 under the Securities Act of 1933. Such registration statement has become effective. The term "Registration Statement" means such registration statement as amended to the date of this Agreement. The term "Basic Prospectus" means the prospectus included in the Registration Statement. The term "Prospectus" means the Basic Prospectus together with the prospectus supplement specifically relating to the Preferred Securities, as filed with or electronically transmitted for filing to, the Commission pursuant to Rule 424. The term "preliminary prospectus" means a preliminary prospectus supplement specifically relating to the Preferred Securities together with a Basic Prospectus. As used herein, the terms "Registration Statement," "Basic Prospectus" and "preliminary prospectus" shall include in each case the documents, if any, incorporated by reference therein. I. The Company and the Trust hereby agree that the Trust sell to the several Underwriters named on Annex A hereto, and the Underwriters, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agree to purchase from the Trust, severally and not jointly, the number of Preferred Securities set forth on Annex A hereto opposite their names at a purchase price of $____ per Preferred Security. The Company agrees to issue the Subordinated Debentures to the Trust concurrently with the issue and sale of the Preferred Securities as contemplated herein. The Company hereby guarantees the timely 3 performance by the Trust of its obligations under Articles I and III herein. The Trust agrees to purchase the Subordinated Debentures with the proceeds of, and concurrently with, the issue and sale of the Preferred Securities. As compensation to the Underwriters for their commitments hereunder, and because the proceeds of the sale of the Preferred Securities will be loaned by the Trust to purchase the Subordinated Debentures from the Company, the Company hereby agrees to pay on the Closing Date to the Underwriters an amount equal to (i) in the case of such number of Preferred Securities as are reserved by the Underwriters for sale to institutional investors, $________per Preferred Security and (ii) in the case of such number of Preferred Securities as are not so reserved, $________per Preferred Security. The Underwriters shall inform the Company in writing, not later than 12:00 noon New York time on the business day prior to the Closing Date, of the number of Preferred Securities reserved for sale to such institutional investors. II. The Company and the Trust are advised by you that the Underwriters propose to make a public offering of their respective Preferred Securities as soon after this Underwriting Agreement is entered into as in your judgment is advisable. The Company and the Trust are further advised by you that the Preferred Securities are to be offered to the public at a public offering price of $25 per Preferred Security and to certain dealers selected by you at a price which represents a concession not in excess of $____ per Preferred Security under the public offering price of the Preferred Securities, and that any Underwriter may allow, and such dealers may reallow, a concession not in excess of $____ per Preferred Security to certain other dealers. III. Payment for the Preferred Securities shall be made to the Trust or its order by certified or official bank check or checks in immediately available funds at the office of Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, N.Y., at 10:00 o'clock A.M., New York time, on _____ __, 199_ or at such other time on the same or such other date, not later than _____ __, 199_, as we shall mutually agree upon delivery of the certificate(s) representing the Preferred Securities. Certificates for the Preferred Securities shall be in definitive form and registered in such names and in such denominations as you shall request in writing not less than two full business days prior to the date of delivery. The time and date of such payment and delivery are herein referred to as the Closing Date. IV. The joint and several obligations of the Company and the Trust and the several obligations of the Underwriters hereunder are subject to the condition that an appropriate order or orders of the Public Utilities Commission of Ohio permitting the issuance and sale of the Preferred Securities as contemplated hereby and containing no provision unacceptable to the Underwriters (it being understood that no order known to the Underwriters and in effect on the date hereof contains any such unacceptable provision) shall have been entered not later than the close of business on the day when the public offering price shall be determined and shall be in full force and effect as of the Closing Date. The several obligations of the Underwriters hereunder are subject to the following further conditions: (a)(i) No stop order suspending the effectiveness of the Registration Statement shall be in effect, no order of the Commission directed to the adequacy or accuracy of any document incorporated by reference therein shall be in effect, and no proceedings for either purpose shall be pending before or threatened by the Commission; (ii) subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436 (g) (2) under the Securities Act (a "Rating"); (iii) (x) subsequent to the execution and delivery of this Agreement and prior to the Closing Date, no notice shall have been given of an intended or potential downgrading of the Rating 2 4 of any of the Company's securities and (y) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or other, or in the earnings, business or operations, of the Company and its subsidiaries taken as a whole, from that set forth in the Registration Statement, that in your judgment is material and adverse and which, in either case, makes it, in your judgment, impracticable to market the Preferred Securities; and (iv) you shall have received on the Closing Date certificates, dated the Closing Date and signed by an executive officer of the Company and an Administrative Trustee (as defined in the Trust Agreement) of the Trust, in each case to the effect set forth in clause (i) above, and in the case of the Company's certificate but not the Trust's certificate, to the effect set forth in clause (ii) above and in each case to the effect that the representations and warranties of the Company or the Trust, as the case may be, contained herein are true and correct as of the Closing Date and in the case of the Company's certificate but not the Trust's certificate, to the effect that there shall not have occurred any material adverse changes, in the condition, financial or other, or in the earnings, business or operations, of the Company and its subsidiaries taken as a whole, from that set forth in the Registration Statement. In each case, the officer or trustee signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. (b) You shall have received, on and as of the Closing Date, the favorable opinion of Anthony J. Alexander, Esq., Senior Vice President and General Counsel for the Company, or of such other member or members of the bar of the State of Ohio who may be designated for that purpose by the Company and who shall not be unsatisfactory to your counsel, to the effect that (i) the Company was duly organized and is validly existing under the laws of the State of Ohio, is duly qualified to do business in the Commonwealth of Pennsylvania as a foreign corporation, and has due corporate authority to carry on the public utility business in which it is engaged and to own and operate the properties owned and used by it in such business; (ii) the Trust was duly created and is validly existing in good standing as a business trust under the Business Trust Act (the "Delaware Act") of the State of Delaware, and, under the Delaware Act and the Trust Agreement, has the power and authority to own property and conduct its business as described in the Prospectus, (iii) the summary of the terms of the Preferred Securities and the Subordinated Debentures contained in the Prospectus fairly describes the provisions thereof required to be described by the registration statement form; (iv) the Preferred Securities have been duly authorized by the Trust Agreement, and, when issued and delivered against payment therefor as provided herein, will be validly issued, and subject to the qualifications set forth in such opinion, fully paid and nonassessable undivided beneficial interests in the assets of the Trust, not subject to any preemptive or similar rights; the certificates for the Preferred Securities are in due and proper form; neither the Company as holder of the Common Securities nor any holder of outstanding shares of capital stock of the Company is entitled to preemptive or other rights to subscribe for the Preferred Securities; (v) the Subordinated Debentures have been duly authorized, executed, authenticated and delivered and constitute binding and valid obligations of the Company in accordance with the terms thereof, subject to the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing; (vi) all legally required proceedings in connection with the authorization, issue and validity of the Preferred Securities and the Subordinated Debentures and the sale of the Preferred Securities by the Trust and the sale of the Subordinated Debentures by the Company to the Trust in accordance with this Agreement have been taken and all legally required orders, consents or other authorizations or approvals of the Commission, of the Public Utilities Commission of Ohio and of any other public boards or bodies (other than in connection with or in compliance with the provisions of the securities or Blue Sky laws of any jurisdiction, as to which such counsel need not express an opinion) have been obtained; (vii) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"); the Registration Statement has become effective under the Securities Act of 1933, as amended (the "Act"), and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; (viii) this Agreement has been duly authorized, executed and delivered by the Company and the Trust and constitutes a valid and 3 5 legally binding agreement of each of the Company and the Trust, in accordance with its terms, subject to any principles of public policy limiting the right to enforce the indemnification provisions contained herein and subject to general principles of equity which may limit the availability of equitable remedies; (ix) the execution, delivery and performance by the Company of the Trust Agreement has been duly authorized by all necessary corporate action on the part of the Company; the Trust Agreement has been duly executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with the terms thereof, subject to the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing; (x) the Registration Statement, the Prospectus and any supplements or amendments thereto (except for the financial statements and other financial and statistical data therein, as to which such counsel need not express an opinion), as of their respective effective or issue dates, complied as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder, (xi) each document incorporated by reference in the Prospectus, as such document was originally filed pursuant to the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act") (except for the financial statements and other financial and statistical data therein, as to which such counsel need not express an opinion), complied as to form when so filed in all material respects with the requirements of the Act or the Exchange Act pursuant to which it was filed and the applicable rules and regulations of the Commission thereunder, (xii) to the best knowledge of such counsel, no order directed to the adequacy of any document incorporated by reference in the Prospectus has been issued by the Commission, and no challenge by the Commission has been made to the adequacy of any such document; (xiii) the descriptions in the Registration Statement and Prospectus of franchises, regulations, statutes, legal and governmental proceedings and contracts and other documents are accurate as to legal matters, and such counsel does not know of any legal or governmental proceedings required to be described in the Registration Statement or the Prospectus which are not so described (or the descriptions of which are not incorporated by reference therein) as required, nor of any contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement which are not so described (or the descriptions of which are not incorporated by reference therein) or filed as required. In rendering such opinion, such counsel may rely as to matters of Pennsylvania law upon the opinion of Robert P. Wushinske, Esq., Vice President, Secretary and General Counsel of the Company's subsidiary, or of such other member or members of the bar of the Commonwealth of Pennsylvania who may be designated for that purpose by the Company and who shall not be unsatisfactory to your counsel. In addition, such counsel shall state that nothing has come to the attention of such counsel which would lead such counsel to believe that the Registration Statement or any post-effective amendment thereto (except for the financial and statements and other financial and statistical data included therein, as to which such counsel need express no opinion), at the time such Registration Statement or any amendment became effective, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as amended or supplemented or modified by the filing of a document incorporated by reference therein (except for the financial statements and other financial and statistical data therein, as to which such counsel need express no opinion), contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) You shall have received, on and as of the Closing Date, the favorable opinion of Winthrop, Stimson, Putnam & Roberts, also counsel for the Company and the Trust, covering the matters in (b) above, except subdivision (xiii) thereof and stating that the Trust will not be classified as an association taxable as a corporation for Federal income tax purposes. In rendering such opinion, such counsel may rely as to all matters of Ohio and Pennsylvania law upon the opinion referred to in (b) above. In addition, such counsel shall state that nothing has come to the attention of such counsel which would lead such counsel to believe that the Registration Statement or any post-effective amendment thereto 4 6 (except for the financial statements and other financial and statistical data therein, as to which such counsel need express no opinion), at the time such Registration Statement or any amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as amended or supplemented or modified by the filing of a document incorporated by reference therein (except for the financial statements and other financial and statistical data therein, as to which such counsel need express no opinion), contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (d) You shall have received, on and as of the Closing Date, the favorable opinion of Richards, Layton & Finger, Delaware counsel to the Company and the Trust, to the effect that (i) the Trust was duly created and is validly existing in good standing as a business trust under the Business Trust Act (the "Delaware Act") of the State of Delaware and under the Delaware Act and the Trust Agreement, has the business trust power and authority to own property and conduct its business as described in the Prospectus; (ii) the Preferred Securities have been duly authorized by the Trust Agreement and, when issued and delivered against payment therefor as provided herein, will be validly issued, and subject to the qualifications set forth in such opinion and described below, fully paid and nonassessable undivided beneficial interests in the assets of the Trust, not subject to any preemptive rights; certificates for the Preferred Securities are in due and proper form; (iii) this Agreement has been duly authorized by the Trust; and (iv) no authorization, approval, consent or order of any Delaware court or governmental authority or agency is required to be obtained by the Trust solely in connection with the issuance and sale of the Preferred Securities. Such counsel may note that the Holders of the Preferred Securities, as beneficial owners of the Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. Such counsel may also note that the Holders of the Preferred Securities may be obligated, pursuant to the Trust Agreement, to (i) provide indemnity and/or security in connection with and pay taxes or governmental charges arising from transfers or exchanges of Preferred Security Certificates and the issuance of replacement Preferred Security Certificates, and (ii) provide security and indemnity in connection with requests of or directions to the Property Trustee to exercise its rights and remedies under the Trust Agreement. (e) You shall have received, on and as of the Closing Date, the favorable opinion of Simpson Thacher & Bartlett, counsel for the Underwriters, with respect to the issue and sale of the Preferred Securities. In rendering such opinion, such counsel may rely as to all matters of Ohio and Pennsylvania law upon the opinion referred to in (b) above. In addition, such counsel shall state that nothing has come to the attention of such counsel which would lead such counsel to believe that the Registration Statement or any post-effective amendment thereto (except for the financial statements or other financial data therein, as to which such counsel need express no opinion), at the time such Registration Statement or any amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as amended or supplemented or modified by the filing of a document incorporated by reference therein (except for the financial statements and other financial data therein, as to which such counsel need express no opinion), contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (f) You shall have received at the Closing a letter dated the Closing Date, in form and substance satisfactory to you, from Arthur Andersen LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statement or the Prospectus. 5 7 V. In further consideration of the agreements of the Underwriters herein contained the Company and the Trust covenant as follows: (a) To furnish without charge to you a signed copy of the Registration Statement, including all exhibits filed with the Registration Statement and with the documents incorporated by reference therein (other than exhibits which are incorporated by reference therein) and to each other Underwriter a copy of the Registration Statement without exhibits and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus and any documents incorporated by reference therein at or after the date thereof and any amendments and supplements thereto as you may reasonably request The terms "supplement" and "amendments" or "amend" as used in this Agreement shall include all documents filed by the Company and the Trust with the Commission subsequent to the date of the Basic Prospectus, pursuant to the Exchange Act which are deemed to be incorporated by reference in the Prospectus. (b) Before amending or supplementing the Registration Statement or the Prospectus or filing with the Commission any document pursuant to Section 13, 14 or 15(d) of the Exchange Act, during the period referred to in paragraph (c) below, to furnish to you a copy of each such proposed amendment, supplement or document. (c) If, during such period (not in excess of nine months) after the first date of the public offering of the Preferred Securities as in the opinion of your counsel a prospectus covering the Preferred Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary to amend or supplement the Prospectus or modify the information incorporated by reference therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus or modify such information to comply with law, forthwith to prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Preferred Securities may have been sold by you on behalf of the Underwriters, and to any other dealers upon request, either amendments or supplements to the Prospectus or modifications to the documents incorporated by reference therein, so that the statements in the Prospectus as so amended, supplemented or modified will not, in the light of the circumstances when such Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law. (d) To endeavor to qualify the Preferred Securities for offer and sale under the securities or Blue Sky laws of such jurisdiction as you shall reasonably request and to pay all filings fees, expenses and legal fees (including fees and disbursements of counsel) in connection with such qualification and in connection with the determination of the eligibility of the Preferred Securities as legal investments under the laws of such jurisdictions as you may designate as well as any filing fees payable in connection with a review of the offering of the Preferred Securities by the National Association of Securities Dealers, Inc. (e) To use its best efforts to effect the listing of the Preferred Securities on the New York Stock Exchange ("NYSE"), subject to official notice of issuance, as soon as practicable after the date hereof. (f) To make available generally to the Company's security holders as soon as practicable an earning statement covering a twelve month period beginning after the date of this Agreement which earning statement shall satisfy the provisions of Section 11(a) of the Act. (g) During the period beginning on the date of this Agreement and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any (A) securities of the Company or the Trust substantially similar to the Subordinated Debentures or the 6 8 Preferred Securities or (B) other beneficial interests of the Trust, in each case without your prior consent. (h) In the case of the Guarantor, to issue the Guarantee concurrently with the issue and sale of the Preferred Securities as contemplated herein. (i) To use the net proceeds received by it from the sale of the Preferred Securities, in the case of the Trust, and the Subordinated Debentures, in the case of the Company, pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds". VI. The Company and the Trust represent and warrant to each Underwriter that (i) each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto or filed pursuant to Rule 424 under the Act complied when so filed in all material respects with the Act and the applicable rules and regulations of the Commission thereunder, and each document incorporated by reference therein complied when originally filed in all material respects with the requirements of the Act or the Exchange Act pursuant to which it was filed and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement and the Prospectus, as amended or supplemented or modified by the filing of a document incorporated by reference therein, will comply (at a time of such amendment, supplement or modification and, if amended, supplemented or modified prior to the Closing Date, on the Closing Date) in all material respects with the Act and the applicable rules and regulations thereunder, and (iii) the Registration Statement, as amended or supplemented or modified by the filing of a document incorporated by reference therein, will not contain (at the time of such amendment, supplement or modification and, if amended, supplemented or modified prior to the Closing Date, on the Closing Date) any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that these representations and warranties do not apply to statements or omissions in the Registration Statement or the Prospectus, in each case as amended, supplemented or modified, or any preliminary prospectus, based upon information furnished to the Company and the Trust in writing by you or by any Underwriter expressly for use therein. The Company and the Trust agree to jointly and severally indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus (if used within the period set forth in paragraph (c) of Article V hereof and as amended, supplemented or modified if the Company or the Trust shall have furnished any amendments, supplements or modifications thereto) or any preliminary Prospectus (including documents incorporated by inference therein), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the Company or the Trust by you or by any Underwriter expressly for use therein; provided, however, that the foregoing indemnification with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter (or any person controlling such Underwriter) from whom the person asserting any such losses, claims, damages or liabilities purchased any of the Preferred Securities, if a copy of the Prospectus (other than documents incorporated by reference therein) as then amended or supplemented or modified (if the Company shall have furnished any amendments, supplements or modifications thereto) had not been sent or given by or on behalf of such Underwriter to such person at or prior to the written confirmation of the sale of such Preferred Securities to such person. The Company agrees jointly and severally to indemnify and hold harmless the Trust from and against any and all losses, claims, damages and liabilities whatsoever, as due from the Trust under the above paragraph of this Article VI hereof. 7 9 Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company and the Trust, its directors, its officers who sign the Registration Statement and any person controlling the Company and the Trust to the same extent as the foregoing indemnity from the Company and the Trust to each Underwriter, but only with reference to information relating to such Underwriter furnished in writing by you or by such Underwriter expressly for use in the Registration Statement or the Prospectus or any preliminary prospectus. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may bc sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to a conflict of interest between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate counsel for all such indemnified parties. Such counsel shall be designated in writing by you in the case of parties indemnified pursuant to the second preceding paragraph, and by the Company and the Trust in the case of parties indemnified pursuant to the first preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. If the indemnification provided for in this Article VI is unavailable to an indemnified party under the second or third paragraphs hereof in respect to any losses, claims, damages or liabilities referred to therein, then each indemnifying party in lieu of indemnifying such indemnified party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative fault of the Company and the Trust on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations, including relative benefit. The relative fault of the Company and the Trust on the one hand and of the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Trust or by the Underwriters and the parties' relevant intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Trust and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Article VI were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Article VI, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Preferred Securities underwritten by it and distributed to the public were offered to the public exceeds the amounts of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute pursuant to this Article VI are several in the proportions which the number of Preferred Securities set forth opposite their names in 8 10 Annex A bear to the total number of Preferred Securities so set forth in Annex A, or in such other proportions as may be determined pursuant to Article VIII, and not joint. The indemnity and contribution agreements contained in this Article VI and the representations and warranties of the Company and the Trust in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter to any person controlling any Underwriter or by or on behalf of the Company and the Trust, any of its directors, officers or any person controlling the Company and the Trust and (iii) acceptance of and payment for the Preferred Securities. VII. This Agreement shall be subject to termination in your absolute discretion, by notice given to the Company, if (a) after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities, or (iv) there shall have occurred any outbreak or escalation of hostilities or any calamity or crisis that, in your judgment, is material and adverse and (b) in the case of any of the events specified in clauses (a) (i) through (iv), such event singly or together with any other such event makes it, in your judgment, impracticable to market the Preferred Securities. VIII. This Agreement shall become effective when it has been executed by the Company, the Trust and you. If any one or more of the Underwriters shall fail or refuse to purchase the Preferred Securities which it or they have agreed to purchase hereunder, and the total number of Preferred Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the total number of Preferred Securities, the other Underwriters shall be obligated severally in the proportions which the number of Preferred Securities set forth opposite their names in Article I bear to the total number of Preferred Securities so set forth opposite the names of all such nondefaulting Underwriters, or in such other proportions as you may specify, to purchase the Preferred Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase; provided that in no event shall the number of Preferred Securities which any Underwriter has agreed to purchase pursuant to Article I hereof be increased pursuant to this Article VIII by an amount in excess of one-ninth of such number of Preferred Securities without the consent of such Underwriter. If any Underwriter or Underwriters shall fail or refuse to purchase Preferred Securities and the total number of Preferred Securities with respect to which such default occurs is more than one-tenth of the total number of the Preferred Securities and arrangements satisfactory to you and the Company and the Trust for the purchase of such Preferred Securities are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or of the Company and the Trust except as provided in Article VI. In any such case which does not result in such termination, either you or the Company and the Trust shall have the right to postpone the Closing Date, but in no event for longer than seven days in each case, in order that the required changes, if any, in the Registration Statement and in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company and the Trust to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company and the Trust shall be unable to perform their obligations under this Agreement, the Company and the Trust will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all 9 11 out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by them in connection with this Agreement or the offering contemplated hereunder. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. 10 12 This Agreement may be executed in counterparts each of which shall be deemed to constitute an original and all of which shall be deemed to be one and the same instrument binding on all of the parties hereto. Very truly yours, OHIO EDISON COMPANY By:________________________________ Name and Title:_________________ OHIO EDISON FINANCING TRUST By: OHIO EDISON COMPANY, Depositor By:_____________________________ Name and Title:___________________________ Accepted _____ __, 199_ MORGAN STANLEY & CO. INCORPORATED and the other Underwriters listed on Annex A hereto By: MORGAN STANLEY & CO. INCORPORATED By: ___________________________________ Name and Title: Acting severally on behalf of themselves and on behalf of the several Underwriters named herein and on Annex A hereto. 11 13 ANNEX A TO UNDERWRITING AGREEMENT LIST OF UNDERWRITERS
NUMBER OF NAME SHARES ---- --------- Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . . . Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . =======
EX-4.1 3 EXHIBIT 4.1 1 EXHIBIT 4.1 CERTIFICATE OF TRUST OF OHIO EDISON FINANCING TRUST THIS CERTIFICATE OF TRUST of Ohio Edison Financing Trust (the "Trust"), dated August 8, 1995 is being duly executed and filed by the undersigned, as trustees, to form a business trust under the Delaware Business Trust Act (12 Del. C. Section 3801 et seq.). 1. Name. The name of the business trust being formed hereby is Ohio Edison Financing Trust. 2. Delaware Trustee. The name and business address of the trustee of the Trust with a principal place of business in the State of Delaware is The Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711. 3. Effective Date. This Certificate of Trust shall be effective as of its filing. IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have executed this Certificate of Trust as of the date first above written. THE BANK OF NEW YORK, not in its individual capacity but solely as Property Trustee By: /s/ Lucille Firrincieli ---------------------------- Name: Lucille Firrincieli Title: Assistant Vice President THE BANK OF NEW YORK (DELAWARE), not in its individual capacity but solely as Delaware Trustee By: /s/ Joseph F. Leary --------------------------- Name: Joseph F. Leary Title: Vice President /s/ R. H. Marsh -------------------------- R. H. MARSH, not in his individual capacity but solely as Administrative Trustee /s/ T. F. Struck II -------------------------- T. F. STRUCK II, not in his individual capacity but solely as Administrative Trustee EX-4.2 4 EXHIBIT 4.2 1 EXHIBIT 4.2 TRUST AGREEMENT, dated as of August 8, 1995, among (i) Ohio Edison Company, an Ohio corporation (the "Depositor" or "Ohio Edison"), (ii) The Bank of New York, a banking corporation duly organized and existing under the laws of New York, as trustee (the "Property Trustee"), (iii) The Bank of New York (Delaware), a banking corporation duly organized under the laws of Delaware, as Delaware trustee (the "Delaware Trustee"), and (iv) R. H. Marsh, an individual, and T. F. Struck II, an individual, each of whose address is c/o Ohio Edison Company, 76 South Main Street, Akron, Ohio 44308, as trustees (each an "Administrative Trustee" and together the "Administrative Trustees") (the Property Trustee, the Delaware Trustee and the Administrative Trustees referred to collectively as the "Trustees"). The Depositor and the Trustees hereby agree as follows: 1. The trust created hereby shall be known as "Ohio Edison Financing Trust", in which name the Trustees, or the Depositor to the extent provided herein, may conduct the business of the Trust, make and execute contracts, and sue and be sued. 2. The Depositor hereby assigns, transfers, conveys and sets over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount in trust from the Depositor, which amount shall constitute the initial trust estate. The Trustees hereby declare that they will hold the trust estate in trust for the Depositor. It is the intention of the parties hereto that the Trust created hereby constitutes a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"), and that this document constitutes the governing instrument of the Trust. The Trustees are hereby authorized and directed to execute and file a certificate of trust with the Delaware Secretary of State in the form attached hereto. 3. The Depositor and the Trustees will enter into an amended and restated Trust Agreement, satisfactory to each such party and substantially in the form included as Exhibit 4.2 to the 1933 Act Registration Statement referred to below, to provide for the contemplated operation of the Trust created hereby and the issuance of the Preferred Securities referred to therein. Prior to the execution and delivery of such amended and restated Trust Agreement, the Trustees shall not have any duty or obligation hereunder or with respect of the trust estate, except as otherwise required by applicable law or as may be necessary to obtain prior to such execution and delivery any licenses, consents or approvals required by applicable law or otherwise. 4. The Depositor and the Trustees hereby authorize and direct the Depositor, as the Depositor of the Trust, (i) to file with the Securities and Exchange Commission (the "Commission") and execute, in each case on behalf of the Trust, (a) the Registration Statement on Form S-3 (File Nos. 33-[__________] 2 33-[__________]) (the "1933 Act Registration Statement") and any pre-effective or post-effective amendments to such Registration Statement, relating to the registration under the Securities Act of 1933, as amended, of the Preferred Securities of the Trust, and (b) a Registration Statement on Form 8-A (the "1934 Act Registration Statement") (including all pre-effective and post-effective amendments thereto) relating to the registration of the Preferred Securities of the Trust under Section 12(b) of the Securities Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange and execute on behalf of the Trust a listing application and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Preferred Securities to be listed on the New York Stock Exchange; (iii) to file and execute on behalf of the Trust such applications, reports, surety bonds, irrevocable consents, appointments of attorney for service of process and other papers and documents as shall be necessary or desirable to register the Preferred Securities under the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or desirable and (iv) to execute on behalf of the Trust that certain Underwriting Agreement among the Trust, the Depositor and the underwriters named therein, substantially in the form included as Exhibit 1.1 of the 1933 Act Registration Statement. In the event that any filing referred to in clauses (i)-(iii) above is required by the rules and regulations of the Commission, the New York Stock Exchange or state securities or blue sky laws, to be executed on behalf of the Trust by the Trustees, R. H. MARSH and T. F. STRUCK II, in their capacities as Administrative Trustees of the Trust, are hereby authorized and directed to join in any such filing and to execute on behalf of the Trust any and all of the foregoing, it being understood that The Bank of New York and The Bank of New York (Delaware), in their capacities as Property Trustee and Delaware Trustee of the Trust, respectively, shall not be required to join in any such filing or execute on behalf of the Trust any such document unless required by the rules and regulations of the Commission, the New York Stock Exchange or state securities or blue sky laws. In connection with all of the foregoing, the Depositor and each Trustee, solely in its capacity as Trustee of the Trust, hereby constitutes and appoints John H. Byington, Jr. and Michael F. Cusick, and each of them, as his, her or its, as the case may be, true and lawful attorneys-in-fact, and agents, with full power of substitution and resubstitution, for the Depositor or such Trustee or in the Depositor's or such Trustee's name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to the 1933 Act Registration Statement and the 1934 Act Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as the Depositor or such Trustee might or could do in -2- 3 person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, shall do or cause to be done by virtue hereof. 5. This Trust Agreement may be executed in one or more counterparts. 6. The number of Trustees initially shall be four (4) and thereafter the number of Trustees shall be such number as shall be fixed from time to time by a written instrument signed by the Depositor which may increase or decrease the number of Trustees; provided, however, that the number of Trustees shall in no event be less than four (4); and provided, further that to the extent required by the Business Trust Act, one Trustee shall either be a natural person who is a resident of the State of Delaware or, if not a natural person, an entity which has its principal place of business in the State of Delaware. Subject to the foregoing, the Depositor is entitled to appoint or remove without cause any Trustee at any time. The Trustees may resign upon thirty days prior notice to the Depositor. -3- 4 IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed as of the day and year first above written. OHIO EDISON COMPANY, as Depositor By: /s/ T. F. Struck II --------------------------------- Name: T. F. Struck II Title: Assistant Treasurer THE BANK OF NEW YORK, not in its individual capacity but solely as Property Trustee By: /s/ Lucille Firrincieli --------------------------------- Name: Lucille Firrincieli Title: Assistant Vice President THE BANK OF NEW YORK (DELAWARE), not in its individual capacity but solely as Delaware Trustee By: /s/ Joseph F. Leary -------------------------------- Name: Joseph F. Leary Title: Vice President /s/ R. H. Marsh ----------------------------------- R. H. MARSH, not in his individual capacity but solely as Administrative Trustee /s/ T. F. Struck II ----------------------------------- T. F. STRUCK II, not in his individual capacity but solely as Administrative Trustee -4- EX-4.3 5 EXHIBIT 4.3 1 EXHIBIT 4.3 DRAFT 8/9/95 AMENDED AND RESTATED TRUST AGREEMENT, dated as of ___________, 1995, among (i) Ohio Edison Company, an Ohio corporation (the "Depositor" or "Ohio Edison"), (ii) The Bank of New York, a banking corporation duly organized and existing under the laws of New York, as trustee (the "Property Trustee"), (iii) The Bank of New York (Delaware), a banking corporation duly organized under the laws of Delaware, as Delaware trustee (the "Delaware Trustee"), (iv) R.H. Marsh, an individual, and T.F. Struck II, an individual, as trustees, each of whose address is c/o Ohio Edison Company, 76 South Main Street, Akron, Ohio 44308 (each an "Administrative Trustee" and together the "Administrative Trustees") (the Property Trustee, the Delaware Trustee and the Administrative Trustees referred to collectively as the "Trustees") and (v) the several Holders, as hereinafter defined, W I T N E S S E T H: WHEREAS, the Depositor, the Property Trustee, the Delaware Trustee and the Administrative Trustees have heretofore duly declared and established a business trust pursuant to the Delaware Business Trust Act by the entering into of that certain Trust Agreement, dated August __, 1995 (the "Original Trust Agreement"), and by the execution by the Property Trustee, the Delaware Trustee and the Administrative Trustees and filing with the Secretary of State of the State of Delaware of the Certificate of Trust, dated August __, 1995, a copy of which is attached as Exhibit A; and WHEREAS, the Depositor, the Property Trustee, the Administrative Trustees and the Delaware Trustee desire to amend and restate the Original Trust Agreement in its entirety as set forth herein to provide for, among other things, (i) the acquisition by the Trust from the Depositor of all of the right, title and interest in the Debentures, (ii) the issuance of the Common Securities by the Trust to the Depositor, and (iii) the issuance and sale of the Preferred Securities by the Trust pursuant to the Underwriting Agreement; NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, each party, for the benefit of the other parties and for the benefit of the Securityholders, hereby amends and restates the Original Trust Agreement in its entirety and agrees as follows: 2 ARTICLE I. DEFINED TERMS Section 1.01 Definitions. For all purposes of this Trust Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (b) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (c) unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Trust Agreement; and (d) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Trust Agreement as a whole and not to any particular Article, Section or other subdivision. "Act" has the meaning specified in Section 6.08. "Additional Amount" means, with respect to Trust Securities of a given Liquidation Amount and/or a given period, the amount of Additional Interest (as defined in the Subordinated Indenture) paid by the Depositor on a Like Amount of Debentures for such period. "Administrative Trustee" means each of the individuals identified as an "Administrative Trustee" in the preamble to this Trust Agreement solely in their capacities as Administrative Trustees of the Trust and not in their individual capacities, or such trustee's successor in interest in such capacity, or any successor trustee or any Special Administrative Trustee appointed as herein provided. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control," when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Appointment Event" has the meaning specified in Section 6.01(d). -2- 3 "Bank" has the meaning specified in the preamble to this Trust Agreement. "Bankruptcy Event" means, with respect to any Person: (i) the entry of a decree or order by a court having jurisdiction in the premises judging such Person a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjudication or composition of or in respect of such Person under Federal bankruptcy law or any other applicable Federal or State law, or appointing a receiver, liquidator, assignee, trustee, sequestrator or other similar official of such Person or of all or substantially all of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or (ii) the institution by such Person of proceedings to be adjudicated a bankrupt or insolvent, or of the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under Federal bankruptcy law or any other applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or similar official of such Person or of all or substantially all of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of action by such Person in furtherance of any such action. "Bankruptcy Laws" has the meaning specified in Section 10.09. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Depositor to have been duly adopted by the Depositor's Board of Directors or a duly authorized committee thereof and to be in full force and effect on the date of such certification, and delivered to the Trustees. "Book Entry Preferred Securities Certificates" means a beneficial interest in the Preferred Securities Certificates, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 5.11. "Business Day" means a day other than (x) a Saturday or a Sunday, (y) a day on which banks in New York, New York are authorized or obligated by law or executive order to remain closed or (z) a day on which the principal corporate trust office of the Property Trustee or the Debenture Trustee is closed for business. -3- 4 "Certificate Depository Agreement" means the agreement among the Trust and The Depository Trust Company, as the initial Clearing Agency, dated as of the Closing Date, relating to the Trust Securities Certificates, substantially in the form attached as Exhibit B, as the same may be amended and supplemented from time to time. "Clearing Agency" means an organization registered as a "clearing agency" pursuant to Section 17A of the Securities Exchange Act of 1934. The Depository Trust Company will be the initial Clearing Agency. "Clearing Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency. "Closing Date" means the First Time of Delivery as defined in the Underwriting Agreement, which date is also the date of execution and delivery of this Trust Agreement. "Code" means the Internal Revenue Code of 1986, as amended. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Security" means an undivided beneficial interest in the assets of the Trust, having a Liquidation Amount of $25 and having the rights provided therefor in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein. "Common Securities Certificate" means a certificate evidencing ownership of Common Securities, substantially in the form attached as Exhibit C. "Corporate Trust Office" means the principal corporate office of the Property Trustee located in New York, New York. "Covered Person" means: (a) any officer, director, shareholder, partner, member, representative, employee or agent of the Trust or the Trust's Affiliates; and (b) any Holder of Trust Securities. "Debenture Event of Default" means an "Event of Default" as defined in the Subordinated Indenture. "Debenture Issuer" means Ohio Edison Company, an Ohio corporation, in its capacity as issuer of the Debentures. -4- 5 "Debenture Redemption Date" means "Redemption Date" as defined in the Subordinated Indenture. "Debenture Trustee" means The Bank of New York, a banking corporation duly organized and existing under the laws of New York, as trustee under the Subordinated Indenture. "Debentures" means the $[__________] aggregate principal amount [(or up to $[__________] aggregate principal amount if and to the extent the overallotment option granted by the Trust to the underwriters of the Preferred Securities is exercised)] of Ohio Edison's ___% Junior Subordinated Debentures, Series A, Due [2025], issued pursuant to the Subordinated Indenture. "Definitive Preferred Securities Certificates" means either or both (as the context requires) of (i) Preferred Securities Certificates issued in certificated, fully registered form as provided in Section 5.11(a) and (ii) Preferred Securities Certificates issued in certificated, fully registered form as provided in Section 5.13. "Delaware Bank" has the meaning specified in the preamble to this Trust Agreement. "Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from time to time. "Delaware Trustee" means the banking corporation identified as the "Delaware Trustee" in the preamble to this Trust Agreement solely in its capacity as Delaware Trustee of the Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor trustee appointed as herein provided. "Depositor" has the meaning specified in the preamble to this Trust Agreement and includes Ohio Edison Company in its capacity as Holder of the Common Securities. "Distribution Date" has the meaning specified in Section 4.01(a). "Distributions" means amounts payable in respect of the Trust Securities as provided in Section 4.01. "Event of Default" means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): -5- 6 (i) the occurrence of a Debenture Event of Default; or (ii) default by the Property Trustee in the payment of any Distribution when it becomes due and payable, and continuation of such default for a period of 10 days; or (iii) default by the Property Trustee in the payment of any Redemption Price of any Trust Security when it becomes due and payable; or (iv) default in the performance, or breach, in any material respect, of any covenant or warranty of the Trustees in this Trust Agreement (other than a covenant or warranty a default in whose performance or breach is dealt with in clause (ii) or (iii), above) and continuation of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the defaulting Trustee or Trustees by the Holders of at least 10% in Liquidation Amount of the Outstanding Preferred Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (v) the occurrence of a Bankruptcy Event with respect to the Property Trustee. "Expense Agreement" means the Agreement as to Expenses and Liabilities, dated as of ________, 1995, between Ohio Edison and the Trust, substantially in the form attached as Exhibit D, as amended from time to time. "Global Certificate" has the meaning specified in Section 5.11. "Guarantee" means the Guarantee Agreement, dated as of ________, 1995, executed and delivered by Ohio Edison and The Bank of New York, a New York banking corporation, as trustee, contemporaneously with the execution and delivery of this Trust Agreement, for the benefit of the Preferred Securityholders, as amended from time to time. "Indemnified Person" means any Trustee, any Affiliate of any Trustee, or any officers, directors, shareholders, members, partners, employees, representatives or agents of any Trustee, or any employee or agent of the Trust or its Affiliates. "Investment Company Event" means the receipt by the Administrative Trustees of an opinion of counsel experienced in practice under the Investment Company Act of 1940, as amended (the "1940 Act"), to the effect that as a result of the occurrence of a change in law or regulation by any legislative body, court, governmental agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or will be considered an "investment company" which is required to be registered under the -6- 7 1940 Act, which Change in 1940 Act Law becomes effective on or after the date of the issuance of the Preferred Securities. "Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse ownership interest, hypothecation, assignment, security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever. "Like Amount" means (i) Trust Securities having a Liquidation Amount equal to the principal amount of Debentures to be contemporaneously redeemed in accordance with the Subordinated Indenture and the proceeds of which will be used to pay the Redemption Price of such Trust Securities, or (ii) Debentures having a principal amount equal to the Liquidation Amount of the Trust Securities of the Holder to whom such Debentures are distributed, as the case may be. "Liquidation Amount" means the stated amount of $25 per Trust Security. "Liquidation Date" means the date on which Debentures are to be distributed to Holders of Trust Securities in connection with a dissolution and liquidation of the Trust pursuant to Section 9.04(a). "Liquidation Distribution" has the meaning specified in Section 9.04(d). "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President, a Vice President or the Comptroller, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee. One of the officers signing an Officers' Certificate given pursuant to Section 8.16 shall be the principal executive, financial or accounting officer of the Depositor. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Trust Agreement shall include: (a) a statement that each officer signing the Officers' Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer upon which the statements or opinions of such officer contained in such Officers' Certificate are based; (c) a statement that, in each such officer's opinion, such officer has made such examination or investigation as is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and -7- 8 (d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Trust, any of the Trustees or the Depositor, but not an employee of the Trust or any of the Trustees, and who shall be reasonably acceptable to the Trustees. "Original Trust Agreement" has the meaning specified in the recitals to this Trust Agreement. "Outstanding," when used with respect to Preferred Securities, means, as of the date of determination, all Preferred Securities theretofore authenticated and delivered under this Trust Agreement, except: (i) Preferred Securities theretofore cancelled by the Administrative Trustees or delivered to the Administrative Trustees for cancellation; (ii) Preferred Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Property Trustee or any Paying Agent for the Holders of such Preferred Securities; provided that, if such Preferred Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Trust Agreement; and (iii) Preferred Securities which have been exchanged for or in lieu of which other Preferred Securities have been authenticated and delivered pursuant to Section 5.05 of this Trust Agreement; provided, however, that in determining whether the Holders of the requisite Liquidation Amount of the Outstanding Preferred Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor or any Trustee shall be disregarded and deemed not to be Outstanding, except that (a) in determining whether any Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Preferred Securities which such Trustee knows to be so owned shall be so disregarded and (b) the foregoing shall not apply at any time when all of the Outstanding Preferred Securities are owned by the Depositor, one or more of the Trustees and/or any such Affiliate. Preferred Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Administrative Trustees the pledgee's right so to act with respect to such Preferred Securities and that the pledgee is not the Depositor or any Affiliate of the Depositor. "Owner" means each Person who is the beneficial owner of a Book Entry Preferred Securities Certificate as reflected in the records of the Clearing Agency or, if a Clearing Agency -8- 9 Participant is not the Owner, then as reflected in the records of a Person maintaining an account with such Clearing Agency (directly or indirectly, in accordance with the rules of such Clearing Agency). "Paying Agent" means any paying agent or co-paying agent appointed pursuant to Section 5.09 and shall initially be The Bank of New York. "Payment Account" means a segregated non-interest-bearing corporate trust account maintained by the Property Trustee in its trust department for the benefit of the Securityholders in which all amounts paid in respect of the Debentures will be held and from which the Property Trustee shall make payments to the Securityholders in accordance with Sections 4.01 and 4.02. "Person" means any individual, corporation, partnership, joint venture, trust, limited liability company or corporation, unincorporated organization or government or any agency or political subdivision thereof. "Preferred Security" means an undivided beneficial interest in assets of the Trust, having a Liquidation Amount of $25 and having rights provided therefor in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein. "Preferred Securities Certificate" means a certificate evidencing ownership of Preferred Securities, substantially in the form attached as Exhibit E. "Property Trustee" means the commercial bank or trust company identified as the "Property Trustee" in the preamble to this Trust Agreement solely in its capacity as Property Trustee of the Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor trustee appointed as herein provided. "Redemption Date" means, with respect to any Trust Security to be redeemed, the date fixed for such redemption by or pursuant to this Trust Agreement; provided that each Debenture Redemption Date shall be a Redemption Date for a Like Amount of Trust Securities. "Redemption Price" means, with respect to any date fixed for redemption of any Trust Security, the Liquidation Amount of such Trust Security, plus accumulated and unpaid Distributions to such date. "Relevant Trustee" shall have the meaning specified in Section 8.10. -9- 10 "Securities Register" and "Securities Registrar" have the respective meanings specified in Section 5.04. "Securityholder" or "Holder" means a Person in whose name a Trust Security or Securities is registered in the Securities Register; any such Person shall be deemed to be a beneficial owner within the meaning of the Delaware Business Trust Act. "Special Administrative Trustee" shall have the meaning specified in Section 8.10. "Special Event" means a Tax Event or an Investment Company Event. "Subordinated Indenture" means the Indenture, dated as of _________ ___, 1995, between Ohio Edison and the Debenture Trustee, as trustee, as amended or supplemented from time to time. "Tax Event" means the receipt by the Administrative Trustees of an opinion of counsel experienced in such matters to the effect that, as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws or treaties (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, (b) any amendment to or change in an interpretation or application of such laws or regulations by any legislative body, court, governmental agency or regulatory authority (including the enactment of any legislation and the publication of any judicial decision or regulatory determination on or after the date of the issuance of the Preferred Securities), (c) any interpretation or pronouncement of any such body, court, agency or authority, that provides for a position with respect to such laws or regulations that differs from the theretofore generally accepted position, or (d) any action taken by any governmental agency or regulatory authority, which amendment or change is enacted, promulgated or effective, or which interpretation or pronouncement is issued or announced, or which action is taken, in each case on or after the date of the issuance of the Preferred Securities, there is more than an insubstantial risk that (i) the Trust is, or will be, subject to United States Federal income tax with respect to income accrued or received on the Debentures, (ii) interest payable on the Debentures is not, or will not be, fully deductible by Ohio Edison for United States Federal income tax purposes or (iii) the Trust is, or will be, subject to more than a de minimis amount of other taxes, duties or other governmental charges (a "Dissolution Tax Opinion"). "Trust" means the Delaware business trust created and continued hereby and identified on the cover page to this Trust Agreement. -10- 11 "Trust Agreement" means this Amended and Restated Trust Agreement, as the same may be modified, amended or supplemented in accordance with the applicable provisions hereof, including all exhibits hereto, including, for all purposes of this Trust Agreement and any such modification, amendment or supplement, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Trust Agreement and any such modification, amendment or supplement, respectively. "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trust Property" means (i) the Debentures, (ii) any cash on deposit in, or owing to, the Payment Account and (iii) all proceeds and rights in respect of the foregoing and any other property and assets for the time being held by the Property Trustee pursuant to the trusts of this Trust Agreement. "Trust Security" means any one of the Common Securities or the Preferred Securities. "Trust Securities Certificate" means any one of the Common Securities Certificates or the Preferred Securities Certificates. "Underwriting Agreement" means the Underwriting Agreement, dated as of ____________, 1995, among the Trust, Ohio Edison and the underwriters named therein. ARTICLE II. ESTABLISHMENT OF THE TRUST Section 2.01 Name. The Trust created and continued hereby shall be known as "Ohio Edison Financing Trust," as such name may be modified from time to time by the Administrative Trustees following written notice to the Holders of Trust Securities, in which name the Trustees may conduct the business of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued. Section 2.02 Office of the Delaware Trustee; Principal Place of Business. The office of the Delaware Trustee in the State of Delaware is White Clay Center, Route 273, Newark, Delaware 19711, or at such other address in Delaware as the Delaware Trustee may designate by written notice to the Securityholders and the Depositor. The principal place of business of the Trust is c/o Ohio Edison Company, 76 South Main Street, Akron, Ohio 44308. -11- 12 Section 2.03 Initial Contribution of Trust Property; Organizational Expenses. The Property Trustee acknowledges receipt in trust from the Depositor in connection with the Original Trust Agreement of the sum of [$10], which constituted the initial Trust Property. The Depositor shall pay organizational expenses of the Trust as they arise or shall, upon request of any Trustee, promptly reimburse such Trustee for any such expenses paid by such Trustee. The Depositor shall make no claim upon the Trust Property for the payment of such expenses. Section 2.04 Issuance of the Preferred Securities. On ______, 1995 the Depositor, on behalf of the Trust and pursuant to the Original Trust Agreement, executed and delivered the Underwriting Agreement. Contemporaneously with the execution and delivery of this Trust Agreement, the Administrative Trustees, on behalf of the Trust, shall execute and deliver to the underwriters named therein Preferred Securities Certificates, registered in the name of the nominee of the initial Clearing Agency, in an aggregate amount of [__________] Preferred Securities having an aggregate Liquidation Amount of $[__________] against receipt of the aggregate purchase price of such Preferred Securities of $[__________] which amount the Administrative Trustees shall promptly deliver to the Property Trustee. [In the event and to the extent the overallotment option granted by the Trust pursuant to the Underwriting Agreement is exercised by such underwriters, the Administrative Trustees, on behalf of the Trust, shall execute and deliver to such underwriters Preferred Securities Certificates, registered in the name of the nominee of the initial Clearing Agency, in an aggregate amount of up to [__________] Preferred Securities having an aggregate Liquidation Amount of up to $[__________], against receipt of the aggregate purchase price of such Preferred Securities of up to $[__________], which amount the Administrative Trustees shall promptly deliver to the Property Trustee, on the date specified pursuant to the Underwriting Agreement.] Section 2.05 Subscription and Purchase of Debentures; Issuance of the Common Securities. Contemporaneously with the execution and delivery of this Trust Agreement, the Administrative Trustees, on behalf of the Trust, shall subscribe to and purchase from the Depositor Debentures, registered in the name of the Property Trustee on behalf of the Holders of the Trust Securities and having an aggregate principal amount equal to $[__________], and, in satisfaction of the purchase price for such Debentures, (x) the Administrative Trustees, on behalf of the Trust, shall execute and deliver to the Depositor Common Securities Certificates, registered in the name of the Depositor, in an aggregate amount of [__________] Common Securities having an aggregate Liquidation Amount of $[__________], and (y) the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of $[__________]. [In the event the overallotment option granted by the Trust with respect to the Preferred Securities pursuant to the Underwriting Agreement is -12- 13 exercised by the underwriters named therein, the Administrative Trustees, on behalf of the Trust, in amounts determined on a pro rata basis to the extent the overallotment is exercised, and contemporaneously with the delivery to the underwriters of such Preferred Securities, shall subscribe to and purchase from the Depositor Debentures, registered in the name of the Property Trustee on behalf of the Holders of the Trust Securities and having an aggregate principal amount up to $[__________], and, in satisfaction of the purchase price for such Debentures, (x) the Administrative Trustees, on behalf of the Trust, shall execute and deliver to the Depositor Common Securities Certificates, registered in the name of the Depositor, in an aggregate amount of up to [__________] Common Securities having an aggregate Liquidation Amount of up to $[__________], and (y) the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of up to $[__________].] Section 2.06 Declaration of Trust. The exclusive purposes and functions of the Trust are (a) to issue and sell Trust Securities and use the proceeds from such sale to acquire the Debentures, and (b) to engage in those activities necessary, convenient or incidental thereto. The Depositor hereby appoints the Trustees as trustees of the Trust, to have all the rights, powers and duties to the extent set forth herein. The Property Trustee hereby declares that it will hold the Trust Property in trust upon and subject to the conditions set forth herein for the benefit of the Securityholders. The Trustees shall have all rights, powers and duties set forth herein and in accordance with applicable law with respect to accomplishing the purposes of the Trust. The Delaware Trustee shall be one of the Trustees of the Trust for the sole and limited purpose of fulfilling the requirements of the Delaware Business Trust Act, and notwithstanding the foregoing or any other provision of this Trust Agreement, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Property Trustee or the Administrative Trustees set forth herein. Section 2.07 Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and Article VIII of this Trust Agreement, and in accordance with the following provisions (A) and (B), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following: (A) As among the Trustees, the Administrative Trustees shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters: -13- 14 (i) the issuance and sale of the Trust Securities; (ii) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Expense Agreement and the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the consummation hereof; (iii) assisting in the registration of the Preferred Securities under the Securities Act of 1933, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act; (iv) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor and the registration of the Preferred Securities under the Securities Exchange Act of 1934, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; (v) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with this Trust Agreement; (vi) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement; (vii) registering transfers of the Trust Securities in accordance with this Trust Agreement in their capacity as initial Securities Registrar; (viii) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; (ix) unless otherwise determined by the Depositor or the Property Trustee, or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute and deliver on behalf of the Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to execute and deliver pursuant to this Trust Agreement; and (x) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without -14- 15 consideration of the effect of any such action on any particular Securityholder). (B) As among the Trustees, the Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters: (i) the establishment of the Payment Account; (ii) the receipt of the Debentures; (iii) the deposit of interest, principal and any other payments made in respect of the Debentures in the Payment Account; (iv) the distribution of amounts owed to the Securityholders in respect of the Trust Securities in accordance with the terms of this Trust Agreement; (v) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Securityholders in accordance with the terms of this Trust Agreement; (vi) the distribution of the Trust Property in accordance with the terms of this Trust Agreement; (vii) to exercise all of the rights, powers and privileges of a holder of Debentures under the Subordinated Indenture and, if an Event of Default occurs and is continuing, the Property Trustee shall, for the benefit of Holders of the Trust Securities, enforce its rights as holder of the Debentures subject to the rights of the Holder pursuant to the terms of such Trust Securities; (viii) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Certificate Depository Agreement; (ix) as provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution of the certificate of cancellation to be prepared and filed by the Administrative Trustees with the Secretary of State of the State of Delaware; and (x) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to protect and conserve the Trust Property for the benefit of the Securityholders (without consideration of the effect of any such action on any particular Securityholder). Subject to this Section 2.07(a)(B), the Property Trustee shall have none of the duties, powers or authority of the -15- 16 Administrative Trustees set forth in Section 2.07(a)(A) or the Depositor set forth in Section 2.07(c). (b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trustees shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Securityholders, except as expressly provided herein, (iii) take any action that would cause the Trust to be treated as an association taxable as a corporation for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Trustees shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Trust or the Securityholders in their capacity as Securityholders. (c) In connection with the issue and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects): (i) to prepare for filing by the Trust with the Commission a registration statement on Form S-3 in relation to the Preferred Securities, including any amendments thereto; (ii) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and to do any and all such acts, other than actions which must be taken by or on behalf of the Trust, and advise the Trustees of actions they must take on behalf of the Trust, and prepare for execution and filing any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States; (iii) to prepare for filing by the Trust an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities; (iv) to prepare for filing by the Trust with the Commission a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) of the Securities Exchange Act of 1934, including any amendments thereto; -16- 17 (v) to negotiate the terms of, and execute and deliver, the Underwriting Agreement providing for the sale of the Preferred Securities; and (vi) any other actions necessary or desirable to carry out any of the foregoing activities. (d) Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act of 1940, as amended, or treated as an association taxable as a corporation for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Depositor for United States Federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that each of the Depositor and the Administrative Trustees determines in its discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect the interests of the Holders of the Preferred Securities. Section 2.08 Assets of Trust. The assets of the Trust shall consist of the Trust Property. Section 2.09 Title to Trust Property. Legal title to all Trust Property shall be vested at all times in the Property Trustee (in its capacity as such) and shall be held and administered by the Property Trustee for the benefit of the Securityholders and the Trust in accordance with this Trust Agreement. ARTICLE III. Section 3.01 Payment Account. (a) On or prior to the Closing Date, the Property Trustee shall establish the Payment Account. The Property Trustee and any agent of the Property Trustee shall have exclusive control and sole right of withdrawal with respect to the Payment Account for the purpose of making deposits in and withdrawals from the Payment Account in accordance with this Trust Agreement. All monies and other property deposited or held from time to time in the Payment Account shall be held by the Property Trustee in the Payment Account for the exclusive benefit of the Securityholders and for distribution as herein provided, including (and subject to) any priority of payments provided for herein. (b) The Property Trustee shall deposit in the Payment Account, promptly upon receipt, all payments of principal of or -17- 18 interest on, and any other payments or proceeds with respect to, the Debentures. Amounts held in the Payment Account shall not be invested by the Property Trustee pending distribution thereof. ARTICLE IV. DISTRIBUTIONS; REDEMPTION Section 4.01 Distributions. (a) Distributions on the Trust Securities shall be cumulative, and will accumulate whether or not there are funds of the Trust available for the payment of Distributions. Distributions shall accrue from ____________, 1995, and, except in the event that Ohio Edison exercises its right to extend the interest payment period for the Debentures pursuant to Section 3.01 of the Subordinated Indenture, shall be payable quarterly in arrears on March 31, June 30, September 30 and December 31 of each year, commencing on _________ __, 1995. If any date on which Distributions are otherwise payable on the Trust Securities is not a Business Day, then the payment of such Distribution shall be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, payment of such Distribution shall be made on the immediately preceding Business Day, in each case, with the same force and effect as if made on such date (each date on which distributions are payable in accordance with this Section 4.01(a) a "Distribution Date"). (b) Distributions payable on the Trust Securities shall be fixed at a rate of __% per annum of the Liquidation Amount of the Trust Securities. Distributions that are in arrears for more than one quarter (whether due to an extension of the interest payment period for the Debentures under Section 301 of the Subordinated Indenture or otherwise) will accrue interest at the rate per annum set forth above and the interest so accrued at the end of each quarter and remaining unpaid will itself bear interest thereafter (to the extent permitted by applicable law) until paid on the same basis. The term "Distributions" as used herein includes any such interest payable, unless otherwise stated. The amount of Distributions payable (and the amount, if any, of interest payable, including interest on overdue interest) for any full quarterly period shall be computed on the basis of twelve 30-day months and a 360-day year. (c) Distributions on the Trust Securities shall be made and shall be deemed payable on each Distribution Date only to the extent that the Trust has funds legally available in the Payment Account for the payment of such Distributions. (d) Distributions on the Trust Securities with respect to a Distribution Date shall be payable to the Holders thereof as -18- 19 they appear on the Securities Register for the Trust Securities on the relevant record date, which shall be one Business Day prior to such Distribution Date; provided, however, that in the event that the Preferred Securities do not remain in book-entry-only form, the relevant record date shall be the date (whether or not a Business Day) 15 days prior to the relevant Distribution Date. Section 4.02 Redemption. (a) On each Debenture Redemption Date and at Maturity (as defined in the Subordinated Indenture), the Trust will be required to redeem a Like Amount of Trust Securities at the Redemption Price. (b) Notice of redemption shall be given by the Administrative Trustees by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date to each Holder of Trust Securities to be redeemed, at such Holder's address appearing in the Security Register. All notices of redemption or liquidation shall state: (i) the Redemption Date; (ii) the Redemption Price; (iii) the CUSIP number; (iv) if less than all the Outstanding Trust Securities are to be redeemed, the identification and the total Liquidation Amount of the particular Trust Securities to be redeemed; and (v) that on the Redemption Date the Redemption Price will become due and payable upon each such Trust Security to be redeemed and that Distributions thereon will cease to accrue on and after said date. (c) The Trust Securities redeemed on each Redemption Date shall be redeemed at the Redemption Price with the proceeds from the contemporaneous redemption of Debentures. Redemptions of the Trust Securities shall be made and the Redemption Price shall be deemed payable on each Redemption Date only to the extent that the Trust has funds immediately available in the Payment Account for the payment of such Redemption Price. (d) If the Administrative Trustees give a notice of redemption in respect of any Preferred Securities, then, by 12:00 noon, New York time, on the Redemption Date, subject to Section 4.02(c), the Property Trustee will, so long as the Preferred Securities are in book-entry-only form, irrevocably deposit with the Clearing Agency for the Preferred Securities funds sufficient to pay the applicable Redemption Price and shall give such Clearing Agency irrevocable instructions and authority to pay the Redemption Price to the holders thereof. If the Preferred Securities are no longer in book-entry-only form, the Property Trustee, subject to Section 4.02(c), shall irrevocably deposit -19- 20 with the Paying Agent funds sufficient to pay the applicable Redemption Price and will give the Paying Agent irrevocable instructions to pay the Redemption Price to the holders thereof. Notwithstanding the foregoing, Distributions payable on or prior to the Redemption Date for any Trust Securities called for redemption shall be payable to the Holders of such Trust Securities as they appear on the Securities Register for the Trust Securities on the relevant record dates for the related Distribution Dates. If notice of redemption shall have been given and funds deposited as required, then upon the date of such deposit, all rights of Securityholders holding Trust Securities so called for redemption will cease, except the right of such Securityholders to receive the Redemption Price, but without interest, and such Trust Securities will cease to be outstanding. In the event that any date on which any Redemption Price is payable is not a Business Day, then payment of the Redemption Price payable on such date shall be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, payment of such distribution shall be made on the immediately preceding Business Day, in each case, with the same force and effect as if made on such date. In the event that payment of the Redemption Price in respect of any Trust Securities called for redemption is improperly withheld or refused and not paid either by the Trust or by the Depositor pursuant to the Guarantee, Distributions on such Trust Securities will continue to accrue, at the then applicable rate, from the Redemption Date originally established by the Trust for such Trust Securities to the date such Redemption Price is actually paid, in which case the actual payment date will be the date fixed for redemption for purposes of calculating the Redemption Price. (e) Payment of the Redemption Price on the Trust Securities shall be made to the Securityholders thereof as they appear on the Securities Register for the Trust Securities on the relevant record date, which shall be one Business Day prior to the relevant Redemption Date; provided, however, that in the event that the Preferred Securities do not remain in book-entry-only form, the relevant record date shall be the fifteenth day (whether or not a Business Day) prior to the Redemption Date. (f) If less than all the Outstanding Trust Securities are to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust Securities to be redeemed shall be allocated 3% to the Common Securities and 97% to the Preferred Securities. The particular Preferred Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Property Trustee from the Outstanding Preferred Securities not previously called for redemption, by such method as the Property Trustee shall deem fair and appropriate and which may provide for the selection for a redemption of portions (equal to $25 or integral multiple thereof) of the Liquidation Amount of -20- 21 Preferred Securities of a denomination larger than $25. The Property Trustee shall promptly notify the Security Registrar in writing of the Preferred Securities selected for redemption and, in the case of any Preferred Securities selected for partial redemption, the Liquidation Amount thereof to be redeemed. For all purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Preferred Securities shall relate, in the case of any Preferred Securities redeemed or to be redeemed only in part, to the portion of the Liquidation Amount of Preferred Securities which has been or is to be redeemed. Section 4.03 Subordination of Common Securities. (a) Payment of Distributions (including Additional Amounts, if applicable) on, and the Redemption Price of, the Trust Securities, as applicable, shall be made pro rata based on the Liquidation Amount of the Trust Securities; provided, however, that if on any Distribution Date or Redemption Date a Debenture Event of Default shall have occurred and be continuing, no payment of any Distribution (including Additional Amounts, if applicable) on, or Redemption Price of, any Common Security, and no other payment on account of the redemption, liquidation or other acquisition of Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions (including Additional Amounts, if applicable) on all Outstanding Preferred Securities for all distribution periods terminating on or prior thereto, or in the case of payment of the Redemption Price the full amount of such Redemption Price on all Outstanding Preferred Securities, shall have been made or provided for, and all funds immediately available to the Property Trustee shall first be applied to the payment in full in cash of all Distributions (including Additional Amounts, if applicable) on, or Redemption Price of, Preferred Securities then due and payable. (b) In the case of the occurrence of any Debenture Event of Default, the Holder of Common Securities will be deemed to have waived any right to act with respect to any Event of Default under this Trust Agreement until the effect of all such Events of Default with respect to the Preferred Securities have been cured, waived or otherwise eliminated. Until any such Events of Default under this Trust Agreement with respect to the Preferred Securities have been so cured, waived or otherwise eliminated, the Property Trustee shall act solely on behalf of the Holders of the Preferred Securities and not the Holder of the Common Securities, and only the Holders of the Preferred Securities will have the right to direct the Property Trustee to act on their behalf. Section 4.04 Payment Procedures. Payments in respect of the Preferred Securities shall be made by check mailed to the address of the Person entitled thereto as such address shall appear on the Securities Register or, if the Preferred Securities -21- 22 are held by a Clearing Agency, such Distributions shall be made to the Clearing Agency, which shall credit the relevant Persons' accounts at such Clearing Agency on the applicable distribution dates. Payments in respect of the Common Securities shall be made in such manner as shall be mutually agreed between the Property Trustee and the Common Securityholder. Section 4.05 Tax Returns and Reports. The Administrative Trustees shall prepare (or cause to be prepared), and file, on behalf of the Trust, all applicable United States Federal, state and local tax returns and tax information reports that are required to be filed with respect to the Trust. The Administrative Trustees shall provide the Depositor and the Property Trustee with a copy of all such returns, reports and schedules promptly after such filing or furnishing. The Trustees shall comply with United States Federal withholding and backup withholding tax laws and information reporting requirements with respect to any payments to Securityholders under the Trust Securities. ARTICLE V. TRUST SECURITIES CERTIFICATES Section 5.01 Initial Ownership. Upon the formation of the Trust and the contribution by the Depositor pursuant to Section 2.03 and until the issuance of the Trust Securities, and at any time during which no Trust Securities are outstanding, the Depositor shall be the sole beneficial owner of the Trust. Section 5.02 The Trust Securities Certificates. The Preferred Securities Certificates shall be issued in minimum denominations of $1,000 Liquidation Amount and integral multiples of $25 in excess thereof, and the Common Securities Certificates shall be issued in denominations of $25 Liquidation Amount and integral multiples thereof. The Trust Securities Certificates shall be executed on behalf of the Trust by manual or facsimile signature of at least one Administrative Trustee. Trust Securities Certificates bearing the signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Trust, shall be validly issued and entitled to the benefits of this Trust Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the delivery of such Trust Securities Certificates or did not hold such offices at the date of delivery of such Trust Securities Certificates. A transferee of a Trust Securities Certificate shall become a Securityholder, and shall be entitled to the rights and subject to the obligations of a Securityholder hereunder, upon due registration of such Trust Securities Certificate in such transferee's name pursuant to Section 5.04. -22- 23 Section 5.03 Delivery of Trust Securities Certificates. On the Closing Date and on any date on which Preferred Securities are required to be delivered pursuant to the exercise of the overallotment option provided for in the Underwriting Agreement, the Administrative Trustees shall cause Trust Securities Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04 and 2.05, to be executed on behalf of the Trust and delivered to or upon the written order of the Depositor signed by its chairman of the board, its president or any vice president, without further corporate action by the Depositor, in authorized denominations. Section 5.04 Registration of Transfer and Exchange of Preferred Securities Certificates. The Securities Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 5.08, a Securities Register in which, subject to such reasonable regulations as it may prescribe, the Securities Registrar shall provide for the registration of Preferred Securities Certificates and the Common Securities Certificates (subject to Section 5.10 in the case of the Common Securities Certificates) and registration of transfers and exchanges of Preferred Securities Certificates as herein provided. Until such time as they have appointed a Securities Registrar under Section 2.07(a)(A)(vi) hereof, the Administrative Trustees, acting together, shall be the initial Securities Registrar. Upon surrender for registration of transfer of any Preferred Securities Certificate at the office or agency maintained pursuant to Section 5.08, the Administrative Trustees or any one of them shall execute and deliver, in the name of the designated transferee or transferees, one or more new Preferred Securities Certificates in authorized denominations of a like aggregate Liquidation Amount dated the date of execution by the Administrative Trustee or Trustees. The Securities Registrar shall not be required to register the transfer of or exchange (i) Preferred Securities during a period of 15 days immediately preceding the date on which notice identifying the serial numbers for the Preferred Securities called for redemption is mailed, or (ii) any Preferred Securities that have been called for redemption. At the option of a Holder, Preferred Securities Certificates may be exchanged for other Preferred Securities Certificates in authorized denominations of the same class and of a like aggregate Liquidation Amount upon surrender of the Preferred Securities Certificates to be exchanged at the office or agency maintained pursuant to Section 5.08. Every Preferred Securities Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Administrative Trustees and the Securities Registrar duly executed by the Holder or such Holder's attorney duly authorized in writing. Each Preferred Securities Certificate surrendered for registration of transfer or exchange -23- 24 shall be cancelled and subsequently disposed of by the Administrative Trustees in accordance with customary practice by trustees generally. No service charge shall be made for any registration of transfer or exchange of Preferred Securities Certificates, but the Securities Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Preferred Securities Certificates. Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates. If (a) any mutilated Trust Securities Certificate shall be surrendered to the Securities Registrar, or if the Securities Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of any Trust Securities Certificate and (b) there shall be delivered to the Securities Registrar and the Administrative Trustees such security or indemnity as may be required by them to save each of them harmless, then in the absence of notice that such Trust Securities Certificate shall have been acquired by a bona fide purchaser, the Administrative Trustees or any one of them on behalf of the Trust shall execute and make available for delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities Certificate of like class, tenor and denomination. In connection with the issuance of any new Trust Securities Certificate under this Section, the Administrative Trustees or the Securities Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any Trust Securities Certificate issued pursuant to this Section shall constitute conclusive evidence of an undivided beneficial interest in the assets of the Trust, as if originally issued, whether or not the lost, stolen or destroyed Trust Securities Certificate shall be found at any time. Section 5.06 Persons Deemed Securityholders. Prior to due presentation of a Trust Securities Certificate for registration of transfer, the Trustees or the Securities Registrar shall treat the Person in whose name any Trust Securities Certificate shall be registered in the Securities Register as the owner of such Trust Securities Certificate for the purpose of receiving distributions and for all other purposes whatsoever, and neither the Trustees nor the Securities Registrar shall be bound by any notice to the contrary. Section 5.07 Access to List of Securityholders' Names and Addresses. The Administrative Trustees shall furnish or cause to be furnished a list (x) to the Depositor, within 15 days after receipt by any Administrative Trustee of a request therefor in such form as such Administrative Trustees may reasonably require, of the names and addresses of the Securityholders as of the most recent Record Date and (y) to the Property Trustee, -24- 25 promptly after receipt by any Administrative Trustee of a request therefor from the Property Trustee in order to enable the Property Trustee to discharge its obligations under this Trust Agreement. If three or more Securityholders or one or more Holders of Trust Securities Certificates evidencing not less than 25% in outstanding Liquidation Amount apply in writing to any Administrative Trustee, and such application states that the applicants desire to communicate with other Securityholders with respect to their rights under this Trust Agreement or under the Trust Securities Certificates and such application is accompanied by a copy of the communication that such applicants propose to transmit, then the Administrative Trustees shall, within five Business Days after the receipt of such application, afford such applicants access during normal business hours to the current list of Securityholders. Each Holder, by receiving and holding a Trust Securities Certificate, shall be deemed to have agreed not to hold either the Depositor or the Trustees accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived. Section 5.08 Maintenance of Office or Agency. The Administrative Trustees shall maintain in the Borough of Manhattan, The City of New York, an office or offices or agency or agencies where Preferred Securities Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Trustees in respect of the Trust Securities Certificates may be served. The Administrative Trustees initially designate The Bank of New York, 101 Barclay Street, Floor 21 West, New York, New York 10286 as their principal trust office for such purposes. The Administrative Trustees shall give prompt written notice to the Depositor, the Property Trustee and the Securityholders of any change in the location of the Securities Register or any such office or agency. Section 5.09 Appointment of Paying Agent. The Paying Agent shall make distributions to Securityholders from the Payment Account and shall report the amounts of such distributions to the Property Trustee and the Administrative Trustees. Any Paying Agent shall have the revocable power to withdraw funds from the Payment Account for the purpose of making the distributions referred to above. The Administrative Trustees may revoke such power and remove the Paying Agent if such Trustees determine in their sole discretion that the Paying Agent shall have failed to perform its obligations under this Agreement in any material respect. The Paying Agent shall initially be The Bank of New York, and it may choose any co-paying agent that is acceptable to the Administrative Trustees and the Depositor. Any Person acting as a Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written notice to the Administrative Trustees, the Property Trustee and the Depositor. In the event that The Bank of New York shall no longer be the Paying Agent or a successor Paying Agent shall resign or its authority to act be revoked, the Administrative Trustees shall appoint a successor that is acceptable to the Property Trustee and the Depositor to -25- 26 act as Paying Agent (which shall be a bank or trust company). The Administrative Trustees shall cause such successor Paying Agent or any additional Paying Agent appointed by the Administrative Trustees to execute and deliver to the Trustees an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Trustees that as Paying Agent, such successor Paying Agent or additional Paying Agent will hold all sums, if any, held by it for payment to the Securityholders in trust for the benefit of the Securityholders entitled thereto until such sums shall be paid to such Securityholders. The Paying Agent shall return all unclaimed funds to the Property Trustee and upon removal of a Paying Agent such Paying Agent shall also return all funds in its possession to the Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply to the Bank also in its role as Paying Agent, for so long as the Bank shall act as Paying Agent and, to the extent applicable, to any other paying agent appointed hereunder. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise. Section 5.10 Ownership of Common Securities by Depositor. On the Closing Date and on each other date provided for in Section 2.05, the Depositor shall acquire, and thereafter retain, beneficial and record ownership of the Common Securities. Any attempted transfer of the Common Securities shall be void. The Administrative Trustees shall cause each Common Securities Certificate issued to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE". Section 5.11 Book-entry Preferred Securities Certificates; Common Securities Certificate. (a) The Preferred Securities Certificates, upon original issuance, will be issued in the form of a typewritten Global Preferred Securities Certificate or Certificates representing Book-Entry Preferred Securities Certificates (each a "Global Certificate"), to be delivered to The Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the Trust. Such Preferred Securities Certificate or Certificates shall initially be registered on the Securities Register in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Owner will receive a definitive Preferred Securities Certificate representing such Owner's interest in such Preferred Securities, except as provided in Section 5.13. Unless and until Definitive Preferred Securities Certificates have been issued to Owners pursuant to Section 5.13: (i) the provisions of this Section 5.11(a) shall be in full force and effect; (ii) the Securities Registrar and the Trustees shall be entitled to deal with the Clearing Agency for all purposes of this Trust Agreement relating to the Book-Entry Preferred Securities Certificates (including the payment of Distributions on the Book-Entry Preferred Securities and the -26- 27 giving of instructions or directions to Owners of Book-Entry Preferred Securities) as the sole Holder of Book-Entry Preferred Securities and shall have no obligations to the Owners thereof; (iii) to the extent that the provisions of this Section 5.11 conflict with any other provisions of this Trust Agreement, the provisions of this Section 5.11 shall control; (iv) the rights of the Owners of the Book-Entry Preferred Securities Certificates shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Owners and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the Certificate Depository Agreement, unless and until Definitive Preferred Securities Certificates are issued pursuant to Section 5.13, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments on the Preferred Securities to such Clearing Agency Participants; and (v) whenever this Trust Agreement requires or permits actions to be taken based upon instructions or directions of Holders of Trust Certificates evidencing a specified percentage of the aggregate Liquidation Amount, the Clearing Agency shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Owners and/or Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the applicable class of Trust Certificates and has delivered such instructions to the Administrative Trustees. (b) Common Securities Certificates representing the Common Securities shall be issued to the Depositor in the form of a definitive Common Securities Certificate. Section 5.12 Notices to Clearing Agency. To the extent a notice or other communication to the Owners is required under this Trust Agreement, unless and until Definitive Preferred Securities Certificates shall have been issued to Owners pursuant to Section 5.13, the Trustees shall give all such notices and communications specified herein to be given to Owners to the Clearing Agency, and shall have no obligations to the Owners. Section 5.13 Definitive Preferred Securities Certificates. If (i) the Depositor advises the Trustees in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Preferred Securities Certificates, and the Depositor is unable to locate a qualified successor, (ii) the Depositor at its option advises the Trustees in writing that it elects to terminate the book-entry system through the Clearing Agency or (iii) after the occurrence of a Debenture Event of Default, Owners of Preferred Securities Certificates representing beneficial interests -27- 28 aggregating at least a majority of the Liquidation Amount of Preferred Securities advise the Clearing Agency in writing that the continuation of a book-entry system through the Clearing Agency is no longer in the best interest of the Owners of Preferred Securities Certificates, then the Clearing Agency shall notify all Owners of Preferred Securities Certificates and the Trustees of the occurrence of any such event and of the availability of the Definitive Preferred Securities Certificates to such Owners requesting the same. Upon surrender to the Administrative Trustees of the typewritten Preferred Securities Certificate or Certificates representing the Book Entry Preferred Securities Certificates by the Clearing Agency, accompanied by registration instructions, the Administrative Trustees, or any one of them, shall execute the Definitive Preferred Securities Certificates in accordance with the instructions of the Clearing Agency. Neither the Securities Registrar nor the Trustees shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Preferred Securities Certificates, the Trustees shall recognize the Holders of the Definitive Preferred Securities Certificates as Securityholders. The Definitive Preferred Securities Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Administrative Trustees, as evidenced by the execution thereof by the Administrative Trustees or any one of them. Section 5.14 Rights of Securityholders. The legal title to the Trust Property is vested exclusively in the Property Trustee (in its capacity as such) in accordance with Section 2.09, and the Securityholders shall not have any right or title therein other than the undivided beneficial interest in the assets of the Trust conferred by their Trust Securities, and they shall have no right to call for any partition or division of property, profits or rights of the Trust except as described below. The Trust Securities shall be personal property giving only the rights specifically set forth therein and in this Trust Agreement. The Trust Securities shall have no preemptive rights and when issued and delivered to Securityholders against payment of the purchase price therefor will be fully paid and nonassessable by the Trust. Except as otherwise provided in the Expense Agreement and Section 10.01 hereof, the Holders of the Trust Securities, in their capacities as such, shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. -28- 29 ARTICLE VI. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING Section 6.01 Limitations on Voting Rights. (a) Except as provided in this Section, in Sections 10.03 and 8.10 hereof, and in the Subordinated Indenture and the Guarantee, and as otherwise required by law, no Holder of Preferred Securities shall have any right to vote or in any manner otherwise control the administration, operation and management of the Trust or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Trust Securities Certificates, be construed so as to constitute the Securityholders from time to time as partners or members of an association. (b) The holders of a majority in aggregate liquidation amount of the Preferred Securities will have the right to (i) direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee or to direct the exercise of any trust or power conferred upon the Property Trustee under the Trustee Agreement, including the right to direct the Property Trustee to exercise the remedies available to it as a holder of the Subordinated Debentures under the Indenture; (ii) waive any past Indenture Event of Default that is waivable under the Indenture; or (iii) exercise any right to rescind or annul a declaration that the principal of all the Subordinated Debentures shall be due and payable; provided, however, that where a consent under the Indenture (as defined herein) requires the consent of all holders of the Subordinated Debentures affected thereby, the Property Trustee may only give such consent at the direction of all holders of the Preferred Securities. If the Property Trustee fails to enforce its rights under the Subordinated Debentures, to the fullest extent permitted by law, a holder of Preferred Securities may, after such holder's written request to the Property Trustee to enforce such rights, institute a legal proceeding directly against Ohio Edison to enforce the Property Trustee's rights under the Subordinated Debentures without first instituting any legal proceeding against the Property Trustee or any other person or entity. The Property Trustee shall notify all holders of the Preferred Securities of any notice of default received from the Debenture Trustee with respect to the Subordinated Debentures. Except with respect to directing the time, method and place of conducting a proceeding for a remedy, the Property Trustee shall not take any of the actions described in clauses (i), (ii) or (iii), unless it shall receive an opinion of counsel experienced in such matters to the effect that the Issuer will not be classified as an association taxable as a corporation for United States Federal income tax purposes on account of such action. (c) If any proposed amendment to this Trust Agreement provides for, or the Trustees otherwise propose to effect, other than pursuant to the terms of this Trust Agreement, (i) any action that would adversely affect the powers, preferences or special rights of the Holders of the Preferred Securities, -29- 30 whether by way of amendment to this Trust Agreement or otherwise, or (ii) the dissolution, winding-up or termination of the Trust, then the Holders of Outstanding Preferred Securities will be entitled to vote as a class on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of the Holders of at least 66 2/3% in Liquidation Amount of the Outstanding Preferred Securities. No amendment to this Trust Agreement may be made if, as a result of such amendment, the Trust would be classified as an association taxable as a corporation for United States Federal income tax purposes, and the Trustees shall be entitled to receive and shall be fully protected in relying upon an Opinion of Counsel experienced in such matters to such effect. (d) If (i) the Trust fails to make Distributions in full on the Preferred Securities for six (6) consecutive quarterly Distribution periods, or (ii) an Event of Default occurs and is continuing (each of (i) and (ii) being an "Appointment Event"), then the Holders of the Preferred Securities, acting as a single class, will be entitled by the vote of a majority in Liquidation Amount of the Preferred Securities to appoint a Special Administrative Trustee in accordance with Section 8.10 of this Trust Agreement. Any Holder of Preferred Securities (other than the Depositor, or any entity directly or indirectly controlling or controlled, by or under direct or indirect common control with the Depositor) will be entitled to nominate any person to be appointed as Special Administrative Trustee. For purposes of determining whether the Trust has failed to make Distributions in full on the Preferred Securities for six (6) consecutive quarterly Distribution periods, Distributions shall be deemed to remain in arrears, notwithstanding any payments in respect thereof, until full cumulative Distributions have been or are contemporaneously are paid with respect to all quarterly Distribution periods terminating on or prior to the date of payment of such cumulative Distributions. Not later than 30 days after such right to appoint a Special Administrative Trustee arises, the Administrative Trustees will convene a meeting of the Holders of the Preferred Securities for the purpose of appointing a Special Administrative Trustee. If the Administrative Trustees fail to convene such meeting within such 30-day period, the Holders of 10% in Liquidation Amount of the Preferred Securities will be entitled to convene such a meeting in accordance with Section 6.03 of this Trust Agreement. Notwithstanding the appointment of a Special Administrative Trustee, Ohio Edison as issuer of the Debentures shall retain all rights under the Indenture, including the right to extend the interest payment period on the Debentures. Section 6.02 Notice of Meetings. Notice of all meetings of the Preferred Securityholders, stating the time, place and purpose of the meeting, shall be given by the Administrative Trustees pursuant to Section 10.08 to each Preferred Securityholder of record, at his registered address, at -30- 31 least 15 days and not more than 90 days before the meeting. At any such meeting, any business properly before the meeting may be so considered whether or not stated in the notice of the meeting. Any adjourned meeting may be held as adjourned without further notice. Any and all notices to which any Preferred Securityholder hereunder may be entitled and any and all communications shall be deemed duly served or given if mailed, postage prepaid, addressed to any Preferred Securityholder of record at his last known address as recorded on the Securities Register. Section 6.03 Meetings of Preferred Securityholders. No annual meeting of Securityholders is required to be held. The Administrative Trustees, however, shall call a meeting of Securityholders if directed to do so in writing by the Holders of at least 25% in Liquidation Amount of the Preferred Securities, and the Administrative Trustees or the Property Trustee may, at any time in their discretion, call a meeting of Preferred Securityholders to vote on any matters as to which the Preferred Securityholders are entitled to vote. Holders of at least 50% in Liquidation Amount of the Preferred Securities, present in person or by proxy, shall constitute a quorum at any meeting of Securityholders. If a quorum is present at a meeting, an affirmative vote by the Holders of at least 66 2/3% in Liquidation Amount of Preferred Securities, present, either in person or by proxy, at such meeting shall constitute the action of the Securityholders, unless this Trust Agreement requires a greater number of affirmative votes. Section 6.04 Voting Rights. Securityholders shall be entitled to one vote for each $25 of Liquidation Amount represented by their Trust Securities in respect of any matter as to which such Securityholders are entitled to vote. Section 6.05 Proxies, Etc. At any meeting of Securityholders, any Securityholder entitled to vote thereat may vote by proxy, provided that no proxy shall be voted at any meeting unless it shall have been placed on file with the Administrative Trustees, or with such other officer or agent of the Trust as the Administrative Trustees may direct, for verification prior to the time at which such vote shall be taken. Pursuant to a resolution of the Property Trustee, proxies may be solicited in the name of the Property Trustee or one or more officers of the Property Trustee. Only Securityholders of record shall be entitled to vote. When Trust Securities are held jointly by several persons, any one of them may vote at any meeting in person or by proxy in respect of such Trust Securities, but if more than one of them shall be present at such meeting in person or by proxy, and such joint owners or their proxies so present disagree as to any vote to be cast, such vote -31- 32 shall not be received in respect of such Trust Securities. A proxy purporting to be executed by or on behalf of a Securityholder shall be deemed valid unless challenged at or prior to its exercise, and the burden of proving invalidity shall rest on the challenger. Section 6.06 Securityholder Action by Written Consent. Any action which may be taken by Securityholders at a meeting may be taken without a meeting if the Holders of at least 66 2/3% in Liquidation Amount of all Outstanding Trust Securities entitled to vote in respect of such action (or such larger proportion thereof as shall be required by any express provision of this Trust Agreement) shall consent to the action in writing. Section 6.07 Record Date for Voting and Other Purposes. For the purposes of determining the Securityholders who are entitled to notice of and to vote at any meeting or by written consent, or to participate in any distribution on the Trust Securities in respect of which a record date is not otherwise provided for in this Trust Agreement, or for the purpose of any other action, the Administrative Trustees may from time to time fix a date, not more than 90 days prior to the date of any meeting of Securityholders or the payment of distribution or other action, as the case may be, as a record date for the determination of the identity of the Securityholders of record for such purposes. Section 6.08 Acts of Securityholders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Trust Agreement to be given, made or taken by Securityholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Securityholders in person or by an agent duly appointed in writing; and, except as otherwise expressly provided herein, such action shall become effective when such instrument or instruments are delivered to the Administrative Trustee. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Securityholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Trust Agreement and (subject to Section 8.01) conclusive in favor of the Trustees, if made in the manner provided in this Section. The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgements of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date -32- 33 of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which any Trustee receiving the same deems sufficient. The ownership of Preferred Securities shall be proved by the Securities Register. Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Securityholder of any Trust Security shall bind every future Securityholder of the same Trust Security and the Securityholder of every Trust Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustees or the Trust in reliance thereon, whether or not notation of such action is made upon such Trust Security. Without limiting the foregoing, a Securityholder entitled hereunder to take any action hereunder with regard to any particular Trust Security may do so with regard to all or any part of the Liquidation Amount of such Trust Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such liquidation amount. If any dispute shall arise between the Securityholders of Trust Securities and the Administrative Trustees or among such Securityholders or Trustees with respect to the authenticity, validity or binding nature of any request, demand, authorization, direction, consent, waiver or other Act of such Securityholder or Trustee under this Article VI, then the determination of such matter by the Property Trustee shall be conclusive with respect to such matter. Section 6.09 Inspection of Records. Subject to Section 5.07 concerning access to the list of Securityholders, upon reasonable notice to the Administrative Trustees and the Property Trustee, the other records of the Trust shall be open to inspection by Securityholders during normal business hours for any purpose reasonably related to such Securityholder's interest as a Securityholder. ARTICLE VII. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE Section 7.01 Property Trustee. The Property Trustee hereby represents and warrants for the benefit of the Depositor and the Securityholders that: -33- 34 (a) the Property Trustee is a banking corporation or trust company duly organized, validly existing and in good standing under the laws of the State of New York; (b) the Property Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (c) this Trust Agreement has been duly authorized, executed and delivered by the Property Trustee and constitutes the valid and legally binding agreement of the Property Trustee enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; (d) the execution, delivery and performance by the Property Trustee of this Trust Agreement will not violate, conflict with or constitute a breach of the Property Trustee's charter or by-laws; and (e) neither the authorization, execution or delivery by the Property Trustee of this Trust Agreement nor the consummation of any of the transactions by the Property Trustee contemplated herein require the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the banking or trust powers of the Property Trustee or under the laws of the State of New York; Section 7.02 Delaware Trustee. The Delaware Trustee represents and warrants for the benefit of the Depositor and the Securityholders that: (a) the Delaware Trustee is a banking corporation or trust company duly organized, validly existing and in good standing under the laws of the State of Delaware; (b) the Delaware Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (c) this Trust Agreement has been duly authorized, executed and delivered by the Delaware Trustee and constitutes the valid and legally binding agreement of the Delaware Trustee enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; -34- 35 (d) the execution, delivery and performance by the Delaware Trustee of this Trust Agreement will not violate the Delaware Trustee's charter or by-laws; and (e) neither the authorization, execution or delivery by the Delaware Trustee of this Trust Agreement nor the consummation of any of the transactions by the Delaware Trustee contemplated herein require the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the banking or trust powers of the Delaware Trustee or under the laws of the State of Delaware; ARTICLE VIII. THE TRUSTEES Section 8.01 Certain Duties and Responsibilities. (a) The duties and responsibilities of the Trustees shall be as provided by this Trust Agreement and, in the case of the Property Trustee, by the Trust Indenture Act, and no implied covenants or obligations shall be read into this Trust Agreement against any of the Trustees. Notwithstanding the foregoing, no provision of this Trust Agreement shall require the Trustees to expend or risk their own funds or otherwise incur any financial liability in the performance of any of their duties hereunder, or in the exercise of any of their rights or powers, if they shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to them. Notwithstanding anything contained in this Trust Agreement to the contrary, the duties and responsibilities of the Property Trustee under this Trust Agreement shall be subject to the protections and limitations on liability afforded to the Property Trustee under this Trust Agreement, the Trust Indenture Act and to the extent applicable, Rule 3a-7 under the 1940 Act, or any successor rule thereunder. Whether or not therein expressly so provided, every provision of this Trust Agreement relating to the conduct or affecting the liability of or affording protection to the Trustees shall be subject to the provisions of Section 8.01. (b) All payments made by the Property Trustee or a Paying Agent in respect of the Trust Securities shall be made only from the income and proceeds from the Trust Property and only to the extent that there shall be sufficient income or proceeds from the Trust Property to enable the Property Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each Securityholder, by its acceptance of a Trust Security, agrees that it will look solely to the income and proceeds from the Trust Property to the extent legally available for distribution to it as herein provided and that the Trustees -35- 36 are not personally liable to it for any amount distributable in respect of any Trust Security or for any other liability in respect of any Trust Security. This Section 8.01(b) does not limit the liability of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the case of the Property Trustee, in the Trust Indenture Act. (c) All duties and responsibilities of the Property Trustee contained in this Trust Agreement are subject to the following: (i) the Property Trustee's sole duty with respect to the custody, safe keeping and physical preservation of the Trust Property and the Property Account shall be to deal with such property in a similar manner as the Property Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Property Trustee under this Trust Agreement, the Trust Indenture Act and Rule 3a-7 thereunder; (ii) the Property Trustee shall have no duty or liability for or with respect to the value, genuineness, existence or sufficiency of the Trust Property or the payment of any taxes or assessments levied thereon or in connection therewith; (iii) the Property Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree with the Depositor. Money held by the Property Trustee need not be segregated from other funds held by it except in relation to the Property Account maintained by the Property Trustee pursuant to Section 2.07(a)(B)(i) and except to the extent otherwise required by law; (iv) the Property Trustee shall not be responsible for monitoring the compliance by the Administrative Trustees or the Depositor with their respective duties under this Trust Agreement, nor shall the Property Trustee be liable for the default or misconduct of the Administrative Trustees or the Depositor. Section 8.02 Notice of Defaults. Within five Business Days after the occurrence of any Event of Default, the Property Trustee shall transmit, in the manner and to the extent provided in Section 10.08, notice of any default known to the Property Trustee to the Securityholders, the Administrative Trustees and the Depositor, unless such default shall have been cured or waived. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default. -36- 37 Section 8.03 Certain Rights of Property Trustee. Subject to the provisions of Section 8.01 and except as provided by law: (a) the Property Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers' Certificate or an instrument signed by the requisite number of Administrative Trustees, as the case may be; and any resolution of the Board of Directors mentioned herein may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor or the Administrative Trustees; (d) the Property Trustee may consult with counsel of its choice and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including attorneys' fees and expenses) and liabilities which might be incurred by it in compliance with such request or direction; (f) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such further inquiry or investigation, it shall be entitled to -37- 38 examine the books, records and premises of the Depositor personally or by agent or attorney; (g) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (h) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (i) the Property Trustee shall not be charged with knowledge of any default, Event of Default or Appointment Event with respect to the Trust Securities unless either (1) a Responsible Officer of the Property Trustee shall have actual knowledge of the default, Event of Default or Appointment Event or (2) written notice of such default, Event of Default or Appointment Event shall have been given to the Property Trustee by the Depositor, the Administrative Trustees or by any Holder of the Trust Securities; (j) no provision of this Trust Agreement shall be deemed to impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Property Trustee shall be construed to be a duty; and (k) no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Trust Agreement or adequate indemnity against such risk or liability is not reasonably assured to it; (l) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any tax or securities) (or any rerecording, refiling or registration thereof); -38- 39 (m) the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; and (n) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder the Property Trustee (i) may request instructions from the Holders of the Securities, which instructions may only be given by the Holders of the same proportion and liquidation amount of the Securities as would be entitled to direct the Property Trustee under the terms of this Trust Agreement in respect of such remedies, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in acting in accordance with such instructions. Section 8.04 Not Responsible For Recitals or Issuance of Securities. The recitals contained herein and in the Trust Securities Certificates shall be taken as the statements of the Trust, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the property of the Trust or any part thereof, nor as to the validity or sufficiency of this Trust Agreement or the Trust Securities. The Trustees shall not be accountable for the use or application by the Trust of the proceeds of the Trust Securities in accordance with Section 2.05. Section 8.05 May Hold Securities. Except as provided in the definitions of the term "Outstanding" in Article I, any Trustee or any other agent of any Trustee or the Trust, in its individual or any other capacity, may become the owner or pledgee of Trust Securities and may otherwise deal with the Trust with the same rights it would have if it were not a Trustee or such other agent. Section 8.06 Compensation; Fees; Indemnity. The Depositor agrees: (a) to pay to the Trustees from time to time reasonable compensation for all services rendered by the Trustees hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) except as otherwise expressly provided herein, to reimburse the Trustees upon request for all reasonable expenses, disbursements and advances incurred or made by the Trustees in accordance with any provision of this Trust Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and -39- 40 (c) to indemnify the Trustees for, and to hold the Trustees harmless from and against, any and all loss, damage, claims, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of this Trust Agreement, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder. As security for the performance of the obligations of the Depositor under this Section, each of the Trustees shall have a lien prior to the Trust Securities upon all property and funds held or collected by such Trustee as such, except funds held in trust for the payment of Distributions on the Trust Securities. The provisions of this Section shall survive the termination of this Trust Agreement. Section 8.07 Corporate Property Trustee Required; Eligibility Trustees. (a) There shall at all times be a Property Trustee hereunder with respect to the Trust Securities. The Property Trustee shall be a Person that has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Property Trustee with respect to the Trust Securities shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. (b) There shall at all times be one or more Administrative Trustees hereunder with respect to the Trust Securities. Each Administrative Trustee shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more persons authorized to bind such entity. (c) There shall at all times be a Delaware Trustee with respect to the Trust Securities. The Delaware Trustee shall either be (i) a natural person who is at least 21 years of age and a resident of the State of Delaware or (ii) a legal entity with its principal place of business in the State of Delaware that otherwise meets the requirements of applicable Delaware law and that shall act through one or more persons authorized to bind such entity. Section 8.08 Conflicting Interests. If the Property Trustee has or shall acquire a conflicting interest within the -40- 41 meaning of the Trust Indenture Act, the Property Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. The Subordinated Indenture and the Guarantee Agreement shall be deemed to be specifically described in this Trust Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. Section 8.09 Co-trustees and Separate Trustee. Unless an Event of Default shall have occurred and be continuing, at any time or times, for the purpose of meeting the legal requirements of the Trust Indenture Act or of any jurisdiction in which any part of the Trust Property may at the time be located, the Holder of the Common Securities and the Administrative Trustees shall, by agreed action of the majority of such Trustees, have power to appoint, and upon the written request of the Administrative Trustees, the Depositor shall for such purpose join with the Administrative Trustees in the execution, delivery, and performance of all instruments and agreements necessary or proper to appoint, one or more Persons approved by the Property Trustee either to act as co-trustee, jointly with the Property Trustee, of all or any part of such Trust Property, or to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons in the capacity aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other provisions of this Section. If the Depositor does not join in such appointment within 15 days after the receipt by it of a request so to do, or in case an Event of Default under the Subordinated Indenture has occurred and is continuing, the Administrative Trustees alone shall have power to make such appointment. Any co-trustee or separate trustee appointed pursuant to this Section shall satisfy the requirements of Section 8.07. Should any written instrument from the Depositor be required by any co-trustee or separate trustee so appointed for more fully confirming to such co-trustee or separate trustee such property, title, right, or power, any and all such instruments shall, on request, be executed, acknowledged, and delivered by the Depositor. Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms, namely: (a) The Trust Securities shall be executed and delivered and all rights, powers, duties, and obligations hereunder in respect of the custody of securities, cash and other personal property held by, or required to be deposited or pledged with, the Trustees specified hereunder, shall be exercised, solely by such Trustees. -41- 42 (b) The rights, powers, duties, and obligations hereby conferred or imposed upon the Property Trustee in respect of any property covered by such appointment shall be conferred or imposed upon and exercised or performed by the Property Trustee or by the Property Trustee and such co-trustee or separate trustee jointly, as shall be provided in the instrument appointing such co-trustee or separate trustee, except to the extent that under any law of any jurisdiction in which any particular act is to be performed, the Property Trustee shall be incompetent or unqualified to perform such act, in which event such rights, powers, duties, and obligations shall be exercised and performed by such co-trustee or separate trustee. (c) The Property Trustee at any time, by an instrument in writing executed by it, with the written concurrence of the Depositor, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section, and, in case an Event of Default under the Subordinated Indenture has occurred and is continuing, the Property Trustee shall have power to accept the resignation of, or remove, any such co-trustee or separate trustee without the concurrence of the Depositor. Upon the written request of the Property Trustee, the Depositor shall join with the Property Trustee in the execution, delivery, and performance of all instruments and agreements necessary or proper to effectuate such resignation or removal. A successor to any co-trustee or separate trustee so resigned or removed may be appointed in the manner provided in this Section. (d) No co-trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of the Property Trustee, or any other Trustee hereunder. (e) The Property Trustee shall not be liable by reason of any act of a co-trustee or separate trustee. (f) Any Act of Holders delivered to the Property Trustee shall be deemed to have been delivered to each such co-trustee or separate trustee. Section 8.10 Resignation and Removal; Appointment of Successor; Special Administrative Trustee. No resignation or removal of any Trustee (the "Relevant Trustee") and no appointment of a successor Relevant Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Relevant Trustee in accordance with the applicable requirements of Section 8.11. The Relevant Trustee may resign at any time with respect to the Trust Securities by giving written notice thereof to the Securityholders. If the instrument of acceptance by a successor Relevant Trustee required by Section 8.11 shall not have been delivered to the Relevant Trustee within 30 days after the giving of such notice of resignation, the resigning Relevant Trustee may petition any court of competent jurisdiction for the -42- 43 appointment of a successor Relevant Trustee with respect to the Trust Securities. Unless an Event of Default shall have occurred and be continuing, the Relevant Trustee may be removed at any time by Act of the Common Securityholder. If an Event of Default shall have occurred and be continuing, the Relevant Trustee may be removed at such time by Act of the Securityholders of a majority in Liquidation Amount of the Preferred Securities Certificates, delivered to the Relevant Trustee (in its individual capacity and on behalf of the Trust). If the Relevant Trustee shall resign, be removed or become incapable of continuing to act as Relevant Trustee at a time when no Event of Default shall have occurred and be continuing, the Common Securityholder, by Act of the Common Securityholder delivered to the retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee or Trustees with respect to the Trust Securities and the Trust, and the retiring Relevant Trustee shall comply with the applicable requirements of Section 8.11. If the Relevant Trustee shall resign, be removed or become incapable of continuing to act as the Relevant Trustee at a time when an Event of Default shall have occurred and be continuing, the Preferred Securityholders, by Act of the Securityholders of a majority in Liquidation Amount of the Preferred Securities then outstanding delivered to the retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee or Trustees with respect to the Trust Securities and the Trust, and the Relevant Trustee shall comply with the applicable requirements of Section 8.11. If no successor Relevant Trustee with respect to the Trust Securities shall have been so appointed by the Common Securityholder or the Preferred Securityholders and accepted appointment in the manner required by Section 8.11, any Securityholder who has been a Securityholder of Trust Securities for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Relevant Trustee with respect to the Trust Securities. The retiring Relevant Trustee shall give notice of each resignation and each removal of the Relevant Trustee with respect to the Trust Securities and the Trust and each appointment of a successor Trustee with respect to the Trust Securities and the Trust to all Securityholders in the manner provided in Section 10.08 and shall give notice to the Depositor. Each notice shall include the name of the successor Relevant Trustee with respect to the Trust Securities and the Trust and the address of its Corporate Trust Office. Notwithstanding the foregoing or any other provision of this Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee who is a natural person dies or becomes incompetent or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by (i) the unanimous act of remaining Administrative Trustees if there are at least two of them or (ii) otherwise by the Depositor (with the successor in each case being an individual who satisfies the eligibility requirement for Administrative Trustees -43- 44 or Delaware Trustee, as the case may be, set forth in Section 8.07). Additionally, notwithstanding the foregoing or any other provision of this Trust Agreement, in the event the Depositor reasonably believes that any Administrative Trustee who is a natural person has become incompetent or incapacitated, the Depositor, by notice to the remaining Trustees, may terminate the status of such Person as an Administrative Trustee (in which case the vacancy so created will be filled in accordance with the preceding sentence). Notwithstanding the foregoing, if an Appointment Event has occurred and is continuing, one (1) additional Administrative Trustee (the "Special Administrative Trustee") may be appointed by vote of the Holders of a majority in Liquidation Amount of the Preferred Securities, voting as a class at a meeting of the Holders of the Preferred Securities, and such Special Administrative Trustee may only be removed (otherwise than as set forth in the next sentence) by vote of the Holders of a majority in Liquidation Amount of the Preferred Securities, voting as a class at a meeting of the Holders of the Preferred Securities. A Special Administrative Trustee shall only hold office while an Appointment Event is continuing and shall cease to hold office immediately after the Appointment Event pursuant to which the Special Administrative Trustee was appointed and all other Appointment Events cease to be continuing. Any Special Administrative Trustee may resign from office (without need for a prior or subsequent accounting) by an instrument in writing signed by the Special Administrative Trustee and delivered to the Depositor and the Trust, which resignation shall take effect upon such delivery or upon such later date as is specified therein; provided, however, that no such resignation of a Special Administrative Trustee shall be effective until the 60th day following delivery of the instrument of resignation of the Special Administrative Trustee to the Depositor and the Trust or such later date specified in such instrument during which period the Holders of the Preferred Securities shall have the right to appoint a successor Special Administrative Trustee as provided in this Section. Section 8.11 Acceptance of Appointment by Successor. In case of the appointment hereunder of a successor Relevant Trustee with respect to all Trust Securities and the Trust, every such successor Relevant Trustee so appointed shall execute, acknowledge and deliver to the Trust and to the retiring Relevant Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Relevant Trustee shall become effective and such successor Relevant Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Relevant Trustee; but, on the request of the Depositor or the successor Relevant Trustee, such retiring Relevant Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Relevant Trustee all the rights, powers and trusts of the retiring Relevant Trustee and shall duly -44- 45 assign, transfer and deliver to such successor Relevant Trustee all property and money held by such retiring Relevant Trustee hereunder, subject, nevertheless, to the retiring Trustee's prior lien provided for in Section 8.06. In case of the appointment hereunder of a successor Relevant Trustee with respect to the Trust Securities and the Trust, the retiring Relevant Trustee and each successor Trustee with respect to the Trust Securities shall execute and deliver an amendment hereto wherein each successor Relevant Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Relevant Trustee all the rights, powers, trusts and duties of the retiring Relevant Trustee with respect to the Trust Securities and the Trust and (2) shall add to or change any of the provisions of this Trust Agreement as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Relevant Trustee, it being understood that nothing herein or in such amendment shall constitute such Relevant Trustees co-trustees of the same trust and that each such Relevant Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Relevant Trustee and upon the execution and delivery of such amendment the resignation or removal of the retiring Relevant Trustee shall become effective to the extent provided therein and each such successor Relevant Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Relevant Trustee with respect to the Trust Securities and the Trust; but, on request of the Trust or any successor Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer and deliver to such successor Trustee all Trust Property, all proceeds thereof and money held by such retiring Relevant Trustee hereunder with respect to the Trust Securities and the Trust. Upon request of any such successor Relevant Trustee, such retiring Relevant Trustee shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Relevant Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be. No successor Relevant Trustee shall accept its appointment unless at the time of such acceptance such successor Relevant Trustee shall be qualified and eligible under this Article. Section 8.12 Merger, Conversion, Consolidation Succession to Business. Any corporation into which the Property Trustee, Delaware Trustee or any Administrative Trustee which is not a natural person may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Relevant -45- 46 Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of such Relevant Trustee, shall be the successor of such Relevant Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. Section 8.13 Preferential Collection of Claims Against Depositor or Trust. If and when the Property Trustee or the Delaware Trustee shall be or become a creditor of the Depositor or the Trust (or any other obligor upon the Debentures or the Trust Securities), the Property Trustee or the Delaware Trustee, as the case may be, shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Depositor or Trust (or any such other obligor). Section 8.14 Reports by Property Trustee. (a) The Property Trustee shall transmit to Securityholders such reports concerning the Property Trustee and its actions under this Trust Agreement as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. Such of those reports as are required to be transmitted by the Property Trustee pursuant to Section 313(a) of the Trust Indenture Act shall be so transmitted within 60 days after July 31 of each year, commencing July 31, 1996. (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Property Trustee with each stock exchange upon which the Trust Securities are listed, with the Commission and with the Depositor. The Depositor will notify the Property Trustee when any Trust Securities are listed on any stock exchange. Section 8.15 Reports to the Property Trustee. The Depositor and the Administrative Trustees on behalf of the Trust shall provide to the Property Trustee such documents, reports and information (if any) as required by Section 314 and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. Section 8.16 Evidence of Compliance with Conditions Precedent. Each of the Depositor and the Administrative Trustees on behalf of the Trust shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Trust Agreement (including any covenants compliance with which constitutes a condition precedent) that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) of the Trust -46- 47 Indenture Act may be given in the form of an Officers' Certificate. Section 8.17 Number of Trustees. (a) The number of Trustees (exclusive of any Special Administrative Trustee) shall be four (4), provided that Depositor, by written instrument may increase or decrease the number of Administrative Trustees. (b) If a Trustee ceases to hold office for any reason and the number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall occur. The vacancy shall be filled with a Trustee appointed in accordance with Section 8.10. (c) The death, resignation, retirement, removal, bankruptcy, incompetence or incapacity to perform the duties of a Trustee shall not operate to annul the Trust. Whenever a vacancy in the number of Administrative Trustees shall occur, until such vacancy is filled by the appointment of an Administrative Trustee in accordance with Section 8.10, the Administrative Trustees in office, regardless of their number (and notwithstanding any other provision of this Agreement), shall have all the powers granted to the Administrative Trustees and shall discharge all the duties imposed upon the Administrative Trustees by this Trust Agreement. Section 8.18 Delegation of Power. (a) Any Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purpose of executing any documents contemplated in Section 2.07(a), including any registration statement or amendment thereto filed with the Commission, or making any other governmental filing; and (b) the Administrative Trustees shall have power to delegate from time to time to such of their number the doing of such things and the execution of such instruments either in the name of the Trust or the names of the Administrative Trustees or otherwise as the Administrative Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of the Trust, as set forth herein. -47- 48 Section 8.19 Fiduciary Duty. (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Trust Agreement shall not be liable to the Trust or to any other Covered Person for its good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity (other than the duties imposed on the Property Trustee under the Trust Indenture Act), are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person; (b) Unless otherwise expressly provided herein: (i) whenever a conflict of interest exists or arises between an Indemnified Person and any Covered Person; or (ii) whenever this Trust Agreement or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any Holder of Trust Securities, the Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or -48- 49 term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Trust Agreement or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise; and (c) Whenever in this Trust Agreement an Indemnified Person is permitted or required to make a decision (i) in its "discretion" or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust or any other Person; or (ii) in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Trust Agreement or by applicable law. ARTICLE IX. TERMINATION AND LIQUIDATION Section 9.01 Termination upon Expiration Date. The Trust shall automatically terminate on [__________], [2050] (the "Expiration Date") following the distribution of the Trust Property in accordance with Section 9.04. Section 9.02 Early Termination. Upon the first to occur of any of the following events (such first occurrence, an "Early Termination Event"): (i) the occurrence of a Bankruptcy Event in respect of, or the dissolution or liquidation of, the Depositor; (ii) the distribution of Debentures pursuant to section 9.05 upon the occurrence of a Special Event; and (iii) the redemption of all of the Preferred Securities; the Trust shall terminate and the Trustees shall take such action as is required by Section 9.04. Section 9.03 Termination. The respective obligations and responsibilities of the Trustees and the Trust shall terminate upon the latest to occur of the following: (i) the distribution by the Property Trustee to Securityholders upon the liquidation of the Trust pursuant to Section 9.04, or upon the redemption of all of the Trust Securities pursuant to Section 4.02, of all amounts required to be distributed hereunder upon -49- 50 the final payment of the Trust Securities; (ii) the payment of any expenses or other liabilities owed by the Trust; and (iii) the discharge of all administrative duties of the Administrative Trustees, including the performance of any tax reporting obligations with respect to the Trust or the Securityholders. Section 9.04 Liquidation. (a) If an Early Termination Event specified in Section 9.02 occurs, the Trust shall be liquidated by the Trustees as expeditiously as the Trustees determine to be appropriate by causing the Property Trustee to distribute to each Securityholder a Like Amount of Debentures, subject to Section 9.04(d). Notice of liquidation shall be given by the Administrative Trustees by first-class mail, postage prepaid, mailed not later than 30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust Securities at such Holder's address appearing in the Securities Register. All notices of liquidation shall: (i) state the Liquidation Date; (ii) state that from and after the Liquidation Date, the Trust Securities will no longer be deemed to be outstanding and any Trust Securities Certificates not surrendered for exchange will be deemed to represent a Like Amount of Debentures; and (iii) provide such information with respect to the mechanics by which Holders may exchange Trust Securities Certificates for Debentures, or if Section 9.04(d) applies receive a Liquidation Distribution, as the Administrative Trustee or the Property Trustee shall deem appropriate. (b) Except where Section 9.04(d) applies, in order to effect the liquidation of the Trust and distribution of the Debentures to Securityholders, the Property Trustee shall establish a record date for such distribution (which shall be not more than 45 days prior to the Liquidation Date) and, either itself acting as exchange agent or through the appointment of a separate exchange agent, shall establish such procedures as it shall deem appropriate to effect the distribution of Debentures in exchange for the Outstanding Trust Securities Certificates. (c) Except where Section 9.04(d) applies, after the Liquidation Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii) certificates representing a Like Amount of Debentures will be issued to Holders of Trust Securities Certificates, upon surrender of such certificates to the Administrative Trustees or their agent for exchange, (iii) any Trust Securities Certificates not so surrendered for exchange will be deemed to represent a Like Amount of Debentures, accruing interest at the rate provided for in the Debentures from the last Distribution Date on which a Distribution was made on such Trust Certificates until such certificates are so surrendered (and until such certificates are so surrendered, no payments or -50- 51 interest or principal will be made to Holders of Trust Securities Certificates with respect to such Debentures) and (iv) all rights of Securityholders holding Trust Securities will cease, except the right of such Securityholders to receive Debentures upon surrender of Trust Securities Certificates. (d) In the event that, notwithstanding the other provisions of this Section 9.04, whether because of an order for dissolution entered by a court of competent jurisdiction or otherwise, distribution of the Debentures in the manner provided herein is determined by the Property Trustee not to be practical, the Trust Property shall be liquidated, and the Trust shall be dissolved, wound-up or terminated, by the Property Trustee in such manner as the Property Trustee determines. In such event, on the date of the dissolution, winding-up or other termination of the Trust, Securityholders will be entitled to receive out of the assets of the Trust available for distribution to Securityholders, after satisfaction of liabilities to creditors, an amount equal to the Liquidation Amount per Trust Security plus accrued and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"). If, upon any such dissolution, winding up or termination, the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then, subject to the next succeeding sentence, the amounts payable by the Trust on the Trust Securities shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder of the Common Securities will be entitled to receive Liquidation Distributions upon any such dissolution, winding-up or termination pro rata (determined as aforesaid) with Holders of Preferred Securities, except that, if an Event of Default has occurred and is continuing, the Preferred Securities shall have a priority over the Common Securities. Section 9.05 Special Event Redemption or Distribution. If, at any time, a Special Event shall occur and be continuing, the Trust shall, except in the limited circumstances described below, be dissolved with the result that, after satisfaction of liabilities to creditors of the Trust, a Like Amount of Debentures shall be distributed to the holders of the Trust Securities in liquidation of such holders' interests in the Trust on a pro rata basis within 90 days following the occurrence of such Special Event; provided, however, that in the case of the occurrence of a Tax Event, such dissolution and distribution shall be conditioned on the Administrative Trustees' receipt of an opinion of counsel experienced in such matters (a "No Recognition Opinion"), which opinion may rely on published revenue rulings of the Internal Revenue Service, to the effect that the Holders of the Trust Securities will not recognize any gain or loss for United States Federal income tax purposes as a result of such dissolution and distribution of Debentures; and provided, further, that, if at the time there is available to the Trust the opportunity to eliminate, within such 90-day period, -51- 52 the Special Event by taking some ministerial action, such as filing a form or making an election or pursuing some other reasonable measure that will have no adverse effect on the Trust, Ohio Edison or the Holders of the Trust Securities, the Trust will pursue such measure in lieu of dissolution. Furthermore, if in the case of the occurrence of a Tax Event, after receipt of a Dissolution Tax Opinion by the Administrative Trustees (i) the Trust has received an opinion of counsel experienced in such matters (a "Redemption Tax Opinion") to the effect that, as a result of a Tax Event, there is more than an insubstantial risk that Ohio Edison would be precluded from deducting the interest on the Debentures for United States Federal income tax purposes even if the Debentures were distributed to the holders of Trust Securities in liquidation of such holders' interests in the Trust as described above, or (ii) the Administrative Trustees shall have been informed by such tax counsel that it cannot deliver a No Recognition Opinion to the Trust, Ohio Edison shall have the right, upon not less than 30 nor more than 60 days notice, to redeem the Debentures, in whole or in part, for cash within 90 days following the occurrence of such Tax Event, and, following such redemption, a Like Amount of Trust Securities shall be redeemed by the Trust at the Redemption Price on a pro rata basis; provided, however, that, if at the time there is available to Ohio Edison or the Trust the opportunity to eliminate, within such 90-day period, the Tax Event by taking some ministerial action, such as filing a form or making an election or pursuing some other similar reasonable measure which has no adverse effect on the Trust, Ohio Edison or the holders of the Trust Securities, Ohio Edison or the Trust will pursue such measure in lieu of redemption. If the Debentures are distributed to the Holders of the Preferred Securities, whether under Section 9.04 or this Section 9.05, Ohio Edison will use its best efforts to cause the Debentures to be listed on the New York Stock Exchange or on such other exchange, if any, as the Preferred Securities are then listed. ARTICLE X. MISCELLANEOUS PROVISIONS Section 10.01 Guarantee by the Depositor. Subject to the terms and conditions hereof, the Depositor irrevocably and unconditionally guarantees to each person or entity to whom the Trust is now or hereafter becomes indebted or liable (the "Guarantee Beneficiaries") the full payment, when and as due, of any and all Obligations (as hereinafter defined) to such Guarantee Beneficiaries. As used in this Section, "Obligations" means any indebtedness, expenses or liabilities of the Trust, other than obligations of the Trust to pay to holders of the Preferred Securities or other similar interests in the Trust the amounts due such holders pursuant to the terms of the Preferred -52- 53 Securities or such other similar interests, as the case may be. This guarantee is intended to be for the benefit of, and to be enforceable by, all such Guarantee Beneficiaries, whether or not such Guarantee Beneficiaries have received notice hereof. Section 10.02 Limitation of Rights of Securityholders. The death or incapacity of any person having an interest, beneficial or otherwise, in a Trust Security shall not operate to terminate this Trust Agreement, nor entitle the legal representatives or heirs of such person or any Securityholder for such person, to claim an accounting, take any action or bring any proceeding in any court for a partition or winding up of the arrangements contemplated hereby, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them. Section 10.03 Amendment. (a) This Trust Agreement may be amended from time to time by the Trustees and the Depositor, without the consent of any Securityholders, (i) to cure any ambiguity, correct or supplement any provision herein or therein which may be inconsistent with any other provision herein or therein, or to make any other provisions with respect to matters or questions arising under this Trust Agreement, which shall not be inconsistent with the other provisions of this Trust Agreement or (ii) to modify, eliminate or add to any provisions of this Trust Agreement to such extent as shall be necessary to ensure that the Trust will not be classified for United States Federal income tax purposes as an association taxable as a corporation at any time that any Trust Securities are outstanding; provided, however, that, except in the case of clause (ii), such amendment or action shall not adversely affect in any material respect the interests of any Securityholder and, in the case of clause (i), any amendments of this Trust Agreement shall become effective when notice thereof is given to the Securityholders. (b) Except as provided in Section 10.03(c) hereof, any provision of this Trust Agreement may be amended by the Trustees and the Depositor with (i) the consent of Trust Securityholders representing not less than 66 2/3% in Liquidation Amount of the Trust Securities then Outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to the effect that such amendment or the exercise of any power granted to the Trustees in accordance with such amendment will not affect the Trust's status as a grantor trust for federal income tax purposes or the Trust's exemption from status of an "investment company" under the Investment Company Act of 1940, as amended. (c) In addition to and notwithstanding any other provision in this Trust Agreement, without the consent of each affected Securityholder (such consent being obtained in accordance with Section 6.03 or 6.06 hereof), this Trust Agreement may not be amended to (i) change the amount or timing -53- 54 of any Distribution on the Trust Securities or otherwise adversely affect the amount of any Distribution required to be made in respect of the Trust Securities as of a specified date or (ii) restrict the right of a Securityholder to institute suit for the enforcement of any such payment on or after such date; notwithstanding any other provision herein without the unanimous consent of the Securityholders (such consent being obtained in accordance with Section 6.03 or 6.06 hereof), paragraph (b) of this Section 10.03 may not be amended. (d) Notwithstanding any other provisions of this Trust Agreement, no Trustee shall enter into or consent to any amendment to this Trust Agreement which would cause the Trust to fail or cease to qualify for the exemption from status of an "investment company" under the Investment Company Act of 1940, as amended, afforded by Rule 3a-5 thereunder. (e) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Depositor or the Trustees, as the case may be, this Trust Agreement may not be amended in a manner which imposes any additional obligation on the Depositor or the Trustees. (f) In the event that any amendment to this Trust Agreement is made, the Administrative Trustees shall promptly provide to the Depositor a copy of such amendment. Section 10.04 Separability. In case any provision in this Trust Agreement or in the Trust Securities Certificates shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 10.05 GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE. Section 10.06 Successors. This Trust Agreement shall be binding upon and shall inure to the benefit of any successor to the Trust or a Relevant Trustee or both, including any successor by operation of law. Section 10.07 Headings. The Article and Section headings are for convenience only and shall not affect the construction of this Trust Agreement. Section 10.08 Notice and Demand. Any notice, demand or other communication which by any provision of this Trust Agreement is required or permitted to be given or served to or upon any Securityholder or the Depositor may be given or served in writing by deposit thereof, postage prepaid, in the United States mail, hand delivery or facsimile transmission, in each -54- 55 case, addressed, (i) in the case of a Preferred Securityholder, to such Preferred Securityholder as such Securityholder's name and address may appear on the Securities Register and (ii) in the case of the Common Securityholder or the Depositor, to Ohio Edison Company, 76 South Main Street, Akron, Ohio, Attention: Treasurer, facsimile no. (216) 384-3772. Such notice, demand or other communication to or upon a Securityholder shall be deemed to have been sufficiently given or made, for all purposes, upon hand delivery, mailing or transmission. Any notice, demand or other communication which by any provision of this Trust Agreement is required or permitted to be given or served to or upon the Trust, the Property Trustee or the Administrative Trustees shall be given in writing addressed (until another address is published by the Trust) as follows: (i) with respect to the Property Trustee and the Delaware Trustee, The Bank of New York, 101 Barclay Street, Floor 21 West, New York, NY 10286, Attention: Corporate Trust Department with a copy to: The Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711, Attention: Corporate Trust Department; and (ii) with respect to the Administrative Trustees, to them at the address above for notices to the Depositor, marked "Attention: Administrative Trustees of [Ohio Edison Financing Trust c/o Treasury Department"]. Such notice, demand or other communication to or upon the Trust or the Property Trustee shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Trust or the Property Trustee. Section 10.09 Agreement not to Petition. Each of the Trustees and the Depositor agree for the benefit of the Securityholders that, until at least one year and one day after the Trust has been terminated in accordance with Article IX, they shall not file, or join in the filing of, a petition against the Trust under any bankruptcy, reorganization, arrangement, insolvency, liquidation or other similar law (including, without limitation, the United States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of any proceeding against the Trust under any Bankruptcy Law. In the event the Depositor takes action in violation of this Section 10.09, the Property Trustee agrees, for the benefit of Securityholders, that it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such petition by the Depositor against the Trust or the commencement of such action and raise the defense that the Depositor has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as counsel for the Property Trustee or the Trust may assert. The provisions of this Section 10.09 shall survive the termination of this Trust Agreement. -55- 56 Section 10.10 Trust Indenture Act; Conflict with Trust Indenture Act. (a) This Trust Agreement is subject to the provisions of the Trust Indenture Act that are required or deemed to be part of this Trust Agreement and shall, to the extent applicable, be governed by such provisions. (b) The Property Trustee shall be the only Trustee which is a Trustee for the purposes of the Trust Indenture Act. (c) If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Trust Agreement by any of the provisions of the Trust Indenture Act, such required provision shall control. (d) THE APPLICATION OF THE TRUST INDENTURE ACT TO THIS TRUST AGREEMENT SHALL NOT AFFECT THE NATURE OF THE SECURITIES AS EQUITY SECURITIES REPRESENTING UNDIVIDED BENEFICIAL INTERESTS IN THE ASSETS OF THE TRUST. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS. Section 10.11 Counterparts. This Trust Agreement may contain more than one counterpart of the signature page and this Trust Agreement may be executed by the affixing of the signature of each of the Trustees of one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. -56- 57 IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. OHIO EDISON COMPANY By:_______________________________________ Name: Title: THE BANK OF NEW YORK, as Property Trustee By:_______________________________________ Name: Title: THE BANK OF NEW YORK (DELAWARE), as Delaware Trustee By:_______________________________________ Name: Title: __________________________________________ R. H. Marsh, as Administrative Trustee __________________________________________ T. F. Struck II, as Administrative Trustee -57- 58 EXHIBIT A CERTIFICATE OF TRUST OF OHIO EDISON FINANCING TRUST THIS CERTIFICATE OF TRUST of Ohio Edison Financing Trust (the "Trust"), dated August [__], 1995 is being duly executed and filed by the undersigned, as trustees, to form a business trust under the Delaware Business Trust Act (12 Del. C. Section 3801 et seq.). 1. Name. The name of the business trust being formed hereby is Ohio Edison Financing Trust. 2. Delaware Trustee. The name and business address of the trustee of the Trust with a principal place of business in the State of Delaware is The Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711. 3. Effective Date. This Certificate of Trust shall be effective as of its filing. IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have executed this Certificate of Trust as of the date first above written. THE BANK OF NEW YORK, not in its individual capacity but solely as Property Trustee By: Name: Title: THE BANK OF NEW YORK (DELAWARE), not in its individual capacity but solely as Delaware Trustee By: Name: Title: -58- 59 R. H. MARSH, not in his individual capacity but solely as Administrative Trustee T. F. STRUCK II, not in his individual capacity but solely as Administrative Trustee -59- 60 TRUST AGREEMENT, dated as of August [__], 1995, among (i) Ohio Edison Company, an Ohio corporation (the "Depositor" or "Ohio Edison"), (ii) The Bank of New York, a banking corporation duly organized and existing under the laws of New York, as trustee (the "Property Trustee"), (iii) The Bank of New York (Delaware), a banking corporation duly organized under the laws of Delaware, as Delaware trustee (the "Delaware Trustee"), and (iv) R. H. Marsh, an individual, and T. F. Struck II, an individual, each of whose address is c/o Ohio Edison Company, 76 South Main Street, Akron, Ohio 44308, as trustees (each an "Administrative Trustee" and together the "Administrative Trustees") (the Property Trustee, the Delaware Trustee and the Administrative Trustees referred to collectively as the "Trustees"). The Depositor and the Trustees hereby agree as follows: 1. The trust created hereby shall be known as "Ohio Edison Financing Trust", in which name the Trustees, or the Depositor to the extent provided herein, may conduct the business of the Trust, make and execute contracts, and sue and be sued. 2. The Depositor hereby assigns, transfers, conveys and sets over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount in trust from the Depositor, which amount shall constitute the initial trust estate. The Trustees hereby declare that they will hold the trust estate in trust for the Depositor. It is the intention of the parties hereto that the Trust created hereby constitutes a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"), and that this document constitutes the governing instrument of the Trust. The Trustees are hereby authorized and directed to execute and file a certificate of trust with the Delaware Secretary of State in the form attached hereto. 3. The Depositor and the Trustees will enter into an amended and restated Trust Agreement, satisfactory to each such party and substantially in the form included as Exhibit 4.2 to the 1933 Act Registration Statement referred to below, to provide for the contemplated operation of the Trust created hereby and the issuance of the Preferred Securities referred to therein. Prior to the execution and delivery of such amended and restated Trust Agreement, the Trustees shall not have any duty or obligation hereunder or with respect of the trust estate, except as otherwise required by applicable law or as may be necessary to obtain prior to such execution and delivery any licenses, consents or approvals required by applicable law or otherwise. 4. The Depositor and the Trustees hereby authorize and direct the Depositor, as the Depositor of the Trust, (i) to file with the Securities and Exchange Commission (the "Commission") and execute, in each case on behalf of the Trust, (a) the Registration Statement on Form S-3 (File Nos. 33-[__________] 33-[__________]) (the "1933 Act Registration Statement") and any -60- 61 pre-effective or post-effective amendments to such Registration Statement, relating to the registration under the Securities Act of 1933, as amended, of the Preferred Securities of the Trust, and (b) a Registration Statement on Form 8-A (the "1934 Act Registration Statement") (including all pre-effective and post-effective amendments thereto) relating to the registration of the Preferred Securities of the Trust under Section 12(b) of the Securities Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange and execute on behalf of the Trust a listing application and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Preferred Securities to be listed on the New York Stock Exchange; (iii) to file and execute on behalf of the Trust such applications, reports, surety bonds, irrevocable consents, appointments of attorney for service of process and other papers and documents as shall be necessary or desirable to register the Preferred Securities under the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or desirable and (iv) to execute on behalf of the Trust that certain Underwriting Agreement among the Trust, the Depositor and [__________], substantially in the form included as Exhibit 1.1 of the 1933 Act Registration Statement. In the event that any filing referred to in clauses (i)-(iii) above is required by the rules and regulations of the Commission, the New York Stock Exchange or state securities or blue sky laws, to be executed on behalf of the Trust by the Trustees, R. H. MARSH and T. F. STRUCK II, in their capacities as Administrative Trustees of the Trust, are hereby authorized and directed to join in any such filing and to execute on behalf of the Trust any and all of the foregoing, it being understood that The Bank of New York and The Bank of New York (Delaware), in their capacities as Property Trustee and Delaware Trustee of the Trust, respectively, shall not be required to join in any such filing or execute on behalf of the Trust any such document unless required by the rules and regulations of the Commission, the New York Stock Exchange or state securities or blue sky laws. In connection with all of the foregoing, the Depositor and each Trustee, solely in its capacity as Trustee of the Trust, hereby constitutes and appoints John H. Byington, Jr. and Michael F. Cusick, and each of them, as his, her or its, as the case may be, true and lawful attorneys-in-fact, and agents, with full power of substitution and resubstitution, for the Depositor or such Trustee or in the Depositor's or such Trustee's name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to the 1933 Act Registration Statement and the 1934 Act Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as the Depositor or such Trustee might or could do in person, hereby ratifying and confirming all that said -61- 62 attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, shall do or cause to be done by virtue hereof. 5. This Trust Agreement may be executed in one or more counterparts. 6. The number of Trustees initially shall be four (4) and thereafter the number of Trustees shall be such number as shall be fixed from time to time by a written instrument signed by the Depositor which may increase or decrease the number of Trustees; provided, however, that the number of Trustees shall in no event be less than four (4); and provided, further that to the extent required by the Business Trust Act, one Trustee shall either be a natural person who is a resident of the State of Delaware or, if not a natural person, an entity which has its principal place of business in the State of Delaware. Subject to the foregoing, the Depositor is entitled to appoint or remove without cause any Trustee at any time. The Trustees may resign upon thirty days prior notice to the Depositor. -62- 63 IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed as of the day and year first above written. OHIO EDISON COMPANY, as Depositor By: Name: Title: THE BANK OF NEW YORK, not in its individual capacity but solely as Property Trustee By: Name: Title: THE BANK OF NEW YORK (DELAWARE), not in its individual capacity but solely as Delaware Trustee By: Name: Title: R. H. MARSH, not in his individual capacity but solely as Administrative Trustee T. F. STRUCK II, not in his individual capacity but solely as Administrative Trustee -63- 64 EXHIBIT B Certificate Depository Agreement _____ ___, 1995 The Depository Trust Company, 55 Water Street, 49th Floor, New York, New York 10041-0099. Attention: ____________ General Counsel's Office Re: Ohio Edison Financing Trust ___% Trust Preferred Capital Securities, Series A Ladies and Gentlemen: The purpose of this letter is to set forth certain matters relating to the issuance and deposit with The Depository Trust Company ("DTC") of the Ohio Edison Financing Trust ___% Trust Preferred Capital Securities, Series A (the "Preferred Securities"), of Ohio Edison Financing Trust, a Delaware business trust (the "Issuer"). The payment of distributions on the Preferred Securities and payments due upon liquidation of the Issuer or redemption of the Preferred Securities are guaranteed by Ohio Edison Company ("Ohio Edison") to the extent set forth in a Guarantee Agreement dated ________ ___, 1995 by Ohio Edison and The Bank of New York, as guarantee trustee, with respect to the Preferred Securities. Ohio Edison and the Issuer propose to sell the Preferred Securities to certain Underwriters (the "Underwriters") pursuant to an Underwriting Agreement dated ________ ___, 1995 by and among the Underwriters, and Ohio Edison dated ________ ___, 1995, and the Underwriters wish to take delivery of the Preferred Securities through DTC. The Administrative Trustees, acting together, are acting as transfer agent and registrar with respect to the Preferred Securities (the "Transfer Agent and Registrar"). To induce DTC to accept the Preferred Securities as eligible for deposit at DTC, and to act in accordance with DTC's rules with respect to the Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC agree among each other as follows: 1. Prior to the closing of the sale of the Preferred Securities to the Underwriters, which is expected to occur on or about ________ ___, 1995, there shall be deposited with DTC one -64- 65 or more global certificates (individually and collectively, the "Global Certificate") registered in the name of DTC's nominee, Cede & Co., representing an aggregate of _________ Preferred Securities and bearing the following legend: "Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation, to Ohio Edison Financing Trust or its agent for registration of transfer, exchange, or payment, and any Preferred Security issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of The Depository Trust Company (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of The Depository Trust Company), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein." 2. The Amended and Restated Trust Agreement of Ohio Edison Financing Trust provides for the voting by holders of the Preferred Securities under certain limited circumstances. The Issuer shall establish a record date for such purposes and shall, to the extent possible, give DTC notice of such record date not less than 15 calendar days in advance of such record date. 3. In the event of a stock split, conversion, recapitalization, reorganization or any other similar transaction resulting in the cancellation of all or any part of the Preferred Securities outstanding, the Issuer or the Transfer Agent and Registrar shall send DTC a notice of such event at least 5 business days prior to the effective date of such event. 4. In the event of distribution on, or an offering or issuance of rights with respect to, the Preferred Securities outstanding, the Issuer or the Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount of and conditions, if any, applicable to the payment of any such distribution or any such offering or issuance of rights; (b) any applicable expiration or deadline date, or any date by which any action on the part of the holders of Preferred Securities is required; and (c) the date any required notice is to be mailed by or on behalf of the Issuer to holders of Preferred Securities or published by or on behalf of the Issuer (whether by mail or publication, the "Publication Date"). Such notice shall be sent to DTC by a secure means (e.g., legible telecopy, registered or certified mail, overnight delivery) in a timely manner designed to assure that such notice is in DTC's possession no later than the close of business on the business day before the Publication Date. The Issuer or the Transfer Agent and Registrar will forward such notice either in a separate secure transmission for each CUSIP number or in a secure transmission of multiple CUSIP numbers (if applicable) that includes a manifest or list of each CUSIP number -65- 66 submitted in that transmission. (The party sending such notice shall have a method to verify subsequently the use of such means and the timeliness of such notice.) The Publication Date shall be not less than 30 calendar days nor more than 60 calendar days prior to the payment of any such distribution or any such offering or issuance of rights with respect to the Preferred Securities. After establishing the amount of payment to be made on the Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify DTC's Dividend Department of such payment 5 business days prior to payment date. Notices to DTC's Dividend Department by telecopy shall be sent to (212) 709-1723. Such notices by mail or by any other means shall be sent to: Manager, Announcements Dividend Department The Depository Trust Company 7 Hanover Square, 23rd Floor New York, New York 10004-2695 The Issuer or the Transfer Agent and Registrar shall confirm DTC's receipt of such telecopy by telephoning the Dividend Department at (212) 709-1270. 5. In the event of a redemption by the Issuer of the Preferred Securities, notice specifying the terms of the redemption and the Publication Date of such notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC not less than 30 calendar days prior to such event by a secure means in the manner set forth in paragraph 4. Such redemption notice shall be sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190, and receipt of such notice shall be confirmed by telephoning (516) 227-4070. Notice by mail or by any other means shall be sent to: Call Notification Department The Depository Trust Company 711 Stewart Avenue Garden City, New York 11530-4719 6. In the event of any invitation to tender the Preferred Securities, notice specifying the terms of the tender and the Publication Date of such notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC by a secure means and in a timely manner as described in paragraph 4. Notices to DTC pursuant to this paragraph and notices of other corporate actions (including mandatory tenders, exchanges and capital changes), shall be sent, unless notification to another department is expressly provided for herein, by telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094 and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or by mail or any other means to: -66- 67 Manager, Reorganization Department Reorganization Window The Depository Trust Company 7 Hanover Square, 23rd Floor New York, New York 10004-2695 7. All notices and payment advises sent to DTC shall contain the CUSIP number or numbers of the Preferred Securities and the accompanying designation of the Preferred Securities, which, as of the date of this letter, is "Ohio Edison Financing Trust ___% Trust Preferred Capital Securities, Series A". 8. Distribution payments or other cash payments with respect to the Preferred Securities evidenced by the Global certificate shall be received by Cede & Co., as nominee of DTC, or its registered assigns in next day funds on each payment date (or in accordance with existing arrangements between the Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be made payable to the order of Cede & Co., and shall be addressed as follows: NDFS Redemption Department The Depository Trust Company 7 Hanover Square, 23rd Floor New York, New York 10004-2695 9. DTC may by prior written notice direct the Issuer and the Transfer Agent and Registrar to use any other telecopy number or address of DTC as the number or address to which notices or payments may be sent. 10. In the event of a conversion, redemption, or any other similar transaction (e.g., tender made and accepted in response to the Issuer's or the Transfer Agent and Registrar's invitation) necessitating a reduction in the aggregate number of Preferred Securities outstanding evidenced by the Global Certificate, DTC, in its discretion: (a) may request the Issuer or the Transfer Agent and Registrar to issue and countersign a new Global Certificate; or (b) may make an appropriate notation on the Global Certificate indicating the date and amount of such reduction. 11. DTC may discontinue its services as a securities depositary with respect to the Preferred Securities at any time by giving at least 90 days' prior written notice to the Issuer and the Transfer Agent and Registrar (at which time DTC will confirm with the Issuer or the Transfer Agent and Registrar the aggregate number of Preferred Securities deposited with it) and discharging its responsibilities with respect thereto under applicable law. Under such circumstances, the Issuer may determine to make alternative arrangements for book-entry settlement for the Preferred Securities, make available one or more separate global certificates evidencing Preferred Securities to any Participant having Preferred Securities credited to its -67- 68 DTC account, or issue definitive Preferred Securities to the beneficial holders thereof, and in any such case, DTC agrees to cooperate fully with the Issuer and the Transfer Agent and Registrar and to return the Global Certificate, duly endorsed for transfer as directed by the Issuer or the Transfer Agent and Registrar, together with any other documents of transfer reasonably requested by the Issuer or the Transfer Agent and Registrar. 12. In the event that the Issuer determines that beneficial owners of Preferred Securities shall be able to obtain definitive Preferred Securities, the Issuer or the Transfer Agent and Registrar shall notify DTC of the availability of certificates. In such event, the Issuer or the Transfer Agent and Registrar shall issue, transfer and exchange certificates in appropriate amounts, as required by DTC and others, and DTC agrees to cooperate fully with the Issuer and the Transfer Agent and Registrar and to return the Global Certificate, duly endorsed for transfer as directed by the Issuer or the Transfer Agent and Registrar, together with any other documents of transfer reasonably requested by the Issuer or the Transfer Agent and Registrar. 13. This letter may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. 14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Nothing herein shall be deemed to require the Transfer Agent and Registrar to advance funds on behalf of the Issuer. Very truly yours, Ohio Edison Financing Trust (As Issuer) By: The Bank of New York, as Property Trustee By: --------------------------------- Name: Title: ------------------------------------- ------------------------------------- Administrative Trustees -68- 69 RECEIVED AND ACCEPTED: THE DEPOSITORY TRUST COMPANY By: ------------------------ Authorized Officer -69- 70 EXHIBIT C THIS CERTIFICATE IS NOT TRANSFERABLE Certificate Number Number of Common Securities Certificate Evidencing Common Securities of Ohio Edison Financing Trust Common Securities (liquidation amount $25 per Common Security) Ohio Edison Financing Trust, a statutory business trust formed under the laws of the State of Delaware (the "Trust"), hereby certifies that Ohio Edison Company (the "Holder") is the registered owner of _____ (_____) common securities of the Trust representing undivided beneficial interests in the assets of the Trust and designated the Common Securities (liquidation amount $25 per Common Security) (the "Common Securities"). In accordance with Section 5.10 of the Trust Agreement (as defined below) the Common Securities are not transferable and any attempted transfer hereof shall be void. The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities are set forth in, and this certificate and the Common Securities represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Amended and Restated Trust Agreement of the Trust dated as of _______ ___, 1995, among Ohio Edison Company, an Ohio corporation, The Bank of New York, a New York banking corporation, as trustee, The Bank of New York (Delaware), a Delaware banking corporation, as trustee, _________________, an individual, as trustee, and ______________, an individual, as trustee (collectively, the "Administrative Trustees of the Trust"), as the same may be amended from time to time (the "Trust Agreement"), including the designation of the terms of the Common Securities as set forth therein. The Trust will furnish a copy of the Trust Agreement to the Holder without charge upon written request to the Trust at its principal place of business or registered office. Upon receipt and acceptance of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. -70- 71 IN WITNESS WHEREOF, the Administrative Trustees of the Trust has executed this certificate this ____ day of _________, 1995. Ohio Edison Financing Trust By:______________________, (as Administrative Trustee) -71- 72 EXHIBIT D AGREEMENT AS TO EXPENSES AND LIABILITIES AGREEMENT dated as of ________ ___, 1995, between Ohio Edison Company, an Ohio corporation ("Ohio Edison"), and Ohio Edison Financing Trust, a Delaware business trust (the "Trust"). WHEREAS, the Trust intends to issue its Common Securities (the "Common Securities") to and receive Debentures from Ohio Edison and to issue and sell Ohio Edison Financing Trust ___% Trust Preferred Capital Securities, Series A (the "Preferred Securities") with such powers, preferences and special rights and restrictions as are set forth in the Amended and Restated Trust Agreement of the Trust dated as of ________ __, 1995 as the same may be amended from time to time (the "Trust Agreement"); WHEREAS, Ohio Edison is the issuer of the Debentures; NOW, THEREFORE, in consideration of the purchase by each holder of the Preferred Securities, which purchase Ohio Edison hereby agrees shall benefit Ohio Edison and which purchase Ohio Edison acknowledges will be made in reliance upon the execution and delivery of this Agreement, Ohio Edison (including in its capacity as holder of the Common Securities) and the Trust hereby agree as follows: ARTICLE I. Section 1.01 Guarantee by Ohio Edison. Subject to the terms and conditions hereof, Ohio Edison hereby irrevocably and unconditionally guarantees to each person or entity to whom the Trust is now or hereafter becomes indebted or liable (the "Creditors") the full payment, when and as due, of any and all Obligations (as hereinafter defined) to such Creditors. As used herein, "Obligations" means any indebtedness, expenses or liabilities of the Trust, other than obligations of the Trust to pay to holders of any Preferred Securities or other similar interests in the Trust the amounts due such holders pursuant to the terms of the Preferred Securities or such other similar interests, as the case may be. This Agreement is intended to be for the benefit of, and to be enforceable by, all such Creditors, whether or not such Creditors have received notice hereof. Section 1.02 Term of Agreement. This Agreement shall terminate and be of no further force and effect upon the date on which there are no Creditors remaining; provided, however, that this Agreement shall continue to be effective or shall be reinstated, as the case may be, if at any time any holder of Preferred Securities or any Creditor must restore payment of any sums paid under the Preferred Securities, under any Obligation, -72- 73 under the Guarantee Agreement dated the date hereof by Ohio Edison and The Bank of New York, as guarantee trustee, or under this Agreement for any reason whatsoever. This Agreement is continuing, irrevocable, unconditional and absolute. Section 1.03 Waiver of Notice. Ohio Edison hereby waives notice of acceptance of this Agreement and of any Obligation to which it applies or may apply, and Ohio Edison hereby waives presentment, demand for payment, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. Section 1.04 No Impairment. The obligations, covenants, agreements and duties of Ohio Edison under this Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: (a) the extension of time for the payment by the Trust of all or any portion of the Obligations or for the performance of any other obligation under, arising out of, or in connection with, the Obligations; (b) any failure, omission, delay or lack of diligence on the part of the Creditors to enforce, assert or exercise any right, privilege, power or remedy conferred on the Creditors with respect to the Obligations or any action on the part of the Trust granting indulgence or extension of any kind; or (c) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt or, or other similar proceedings affecting, the Trust or any of the assets of the Trust. There shall be no obligation of the Creditors to give notice to, or obtain the consent of, Ohio Edison with respect to the happening of any of the foregoing. Section 1.05 Enforcement. A Creditor may enforce this Agreement directly against Ohio Edison, and Ohio Edison waives any right or remedy to require that any action be brought against the Trust or any other person or entity before proceeding against Ohio Edison. ARTICLE II. Section 2.01 Binding Effect. All guarantees and agreements contained in this Agreement shall bind the successors, assigns, receivers, trustees and representatives of Ohio Edison and shall inure to the benefit of the Creditors. -73- 74 Section 2.02 Amendment. So long as there remains any Creditor or any Preferred Securities of any series are outstanding, this Agreement shall not be modified or amended in any manner adverse to such Creditor or to the holders of the Preferred Securities but, in any event, without the prior written consent of the Property Trust (as defined in the Trust Agreement). Section 2.03 Notices. Any notice, request or other communication required or permitted to be given hereunder shall be given in writing by delivering the same against receipt therefor by facsimile transmission (confirmed by mail), telex or by registered or certified mail, addressed as follows (and if so given, shall be deemed given when mailed or upon receipt of an answer-back, if sent by telex), to wit: Ohio Edison Financing Trust c/o The Bank of New York 101 Barclay Street, Floor 21 West New York, NY 10286 Facsimile No.: (212) 815-5915 Attention: Corporate Trust Department (with a copy to: The Bank of New York (Delaware) White Clay Center, Route 273 Newark, Delaware 19711 Facsimile No.: ___________. Attention: Corporate Trust Department.) Ohio Edison Company 76 South Main Street Akron, Ohio Attention: Treasurer Facsimile No.: (216) 384-3772. Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. -74- 75 THIS AGREEMENT is executed as of the day and year first above written. OHIO EDISON COMPANY By:______________________ Name: Title: OHIO EDISON FINANCING TRUST By:_______________________ __________________________ __________________________ (as Administrative Trustees) -75- 76 EXHIBIT E [IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT -] This Preferred Security is a Global Certificate within the meaning of the Trust Agreement hereinafter referred to and is registered in the name of The Depository Trust Company (the "Depository") or a nominee of the Depository. This Preferred Security is exchangeable for Preferred Securities registered in the name of a person other than the Depository or its nominee only in the limited circumstances described in the Trust Agreement and no transfer of this Preferred Security (other than a transfer of this Preferred Security as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository) may be registered except in limited circumstances. Unless this Preferred Security is presented by an authorized representative of The Depository Trust Company, a New York corporation, to Ohio Edison Financing Trust or its agent for registration of transfer, exchange or payment, and any Preferred Security issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of The Depository Trust Company), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. Certificate Number Number of Preferred Securities P- CUSIP NO. Certificate Evidencing Preferred Securities of Ohio Edison Financing Trust ___% Trust Preferred Capital Securities, Series A (liquidation amount $25 per Preferred Security) Ohio Edison Financing Trust, a statutory business trust formed under the laws of the State of Delaware (the "Trust"), hereby certifies that ____________ (the "Holder") is the registered owner of _____ (_____) preferred securities of the Trust representing an undivided beneficial interest in the assets of the Trust and designated the Ohio Edison Financing Trust ___% Trust Preferred Capital Securities, Series A (liquidation amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred Securities are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon -76- 77 surrender of this certificate duly endorsed and in proper form for transfer as provided in Section 5.04 of the Trust Agreement (as defined below). The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Preferred Securities are set forth in, and this certificate and the Preferred Securities represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Amended and Restated Trust Agreement of the Trust dated as of _______ ___, 1995, among Ohio Edison Company, an Ohio corporation, The Bank of New York, a New York banking corporation, as trustee, The Bank of New York (Delaware), a Delaware banking corporation, as trustee, _________________, an individual, as trustee, and ______________, an individual, as trustee (collectively, the "Administrative Trustees of the Trust"), as the same may be amended from time to time (the "Trust Agreement") including the designation of the terms of Preferred Securities as set forth therein. The holder of this certificate is entitled to the benefits of the Guarantee Agreement entered into by Ohio Edison Company, an Ohio corporation, and The Bank of New York, as guarantee trustee, dated as of _______ ___, 1995 (the "Guarantee") to the extent provided therein. The Trust will furnish a copy of the Trust Agreement and the Guarantee to the holder of this certificate without charge upon written request to the Trust at its principal place of business or registered office. Upon receipt of this certificate, the holder of this certificate is bound by the Trust Agreement and is entitled to the benefits thereunder. IN WITNESS WHEREOF, the Trustee of the Trust has executed this certificate this ____ day of _________, 1995. Ohio Edison Financing Trust By: _______________________ ___________________________ ___________________________ (as Administrative Trustees) -77- 78 ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred Security to: _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ (Insert assignee's social security or tax identification number) _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ (Insert address and zip code of assignee) and irrevocably appoints _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ agent to transfer this Preferred Security Certificate on the books of the Trust. The agent may substitute another to act for him or her. Date:__________________ Signature:________________________ (Sign exactly as your name appears on the other side of this Preferred Security Certificate) -78- EX-4.4 6 EXHIBIT 4.4 1 EXHIBIT 4.4 -------------------------------------------------------------------------------- OHIO EDISON COMPANY TO THE BANK OF NEW YORK TRUSTEE INDENTURE DATED AS OF __________, 1995 ---------------------- $[__________] ____% JUNIOR SUBORDINATED DEBENTURES, SERIES A, DUE [2025] ------------------------------------------------------------------------------- 2 Certain Sections of this Indenture relating to Section 310 through 318 of the Trust Indenture Act of 1939:
Trust Indenture Indenture Act Section Section --------------- --------- Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09 (a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08, 6.10 Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13 Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01 7.02(a) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(b) (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(c) Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a) (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a) (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(b) Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04 (a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01, 10.04 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02 (c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02 (c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02 Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14 Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01 5.02 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12 (a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.04(c) Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03 Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.07
________________ Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. 3 TABLE OF CONTENTS
Page ---- ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Section 1.02 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 1.03 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 1.04 Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Section 1.05 Notices, Etc., to Trustee and the Company . . . . . . . . . . . . . . . . . . . . . . . 11 Section 1.06 Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 1.07 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 1.08 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 1.09 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 1.10 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 1.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 1.13 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARTICLE II. SECURITY FORMS Section 2.01 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 2.02 Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 2.03 Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 2.04 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . 19 ARTICLE III. THE SECURITIES Section 3.01 Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 3.02 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Section 3.03 Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . 21 Section 3.04 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Section 3.05 Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . 22 Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . 23
-i- 4 Section 3.07 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . 24 Section 3.08 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Section 3.09 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Section 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Section 3.11 Right of Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Section 3.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Section 3.13 Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 ARTICLE IV. SATISFACTION AND DISCHARGE Section 4.01 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 4.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 ARTICLE V. REMEDIES Section 5.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Section 5.02 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . 30 Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . 32 Section 5.04 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Section 5.05 Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . 33 Section 5.06 Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Section 5.07 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Section 5.08 Unconditional Right of Holders to Receive Principal and Interest . . . . . . . . . . . . 34 Section 5.09 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 5.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 ARTICLE VI. THE TRUSTEE Section 6.01 Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Section 6.02 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Section 6.03 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Section 6.04 Not Responsible For Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . 39
-ii- 5 Section 6.05 May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 6.06 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 6.07 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Section 6.08 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . 40 Section 6.09 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . 41 Section 6.10 Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . 41 Section 6.11 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . 42 Section 6.12 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . 43 Section 6.13 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . 43 ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY Section 7.01 Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . 43 Section 7.02 Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . 44 Section 7.03 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Section 7.04 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE Section 8.01 Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . 45 Section 8.02 Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 ARTICLE IX. SUPPLEMENTAL INDENTURES Section 9.01 Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . 46 Section 9.02 Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . 47 Section 9.03 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Section 9.04 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Section 9.05 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Section 9.06 Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . 49
-iii- 6 ARTICLE X. COVENANTS; REPRESENTATIONS AND WARRANTIES Section 10.01 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Section 10.02 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Section 10.03 Money for Security Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . 50 Section 10.04 Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Section 10.05 Additional Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 ARTICLE XI. SUBORDINATION OF SECURITIES Section 11.01 Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 52 Section 11.02 Default on Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Section 11.03 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Section 11.04 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Section 11.05 Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Section 11.06 Notice by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Section 11.07 Rights of the Trustee; Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . 56 Section 11.08 Subordination May Not be Impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 ARTICLE XII. REDEMPTION OF SECURITIES Section 12.01 Optional Redemption; Conditions to Optional Redemption . . . . . . . . . . . . . . . . . 57 Section 12.02 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Section 12.03 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 58 Section 12.04 Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . 59 Section 12.05 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Section 12.06 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Section 12.07 Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 60 Section 12.08 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ANNEX A FORM OF AMENDED AND RESTATED TRUST AGREEMENT -iv- 7 INDENTURE, dated as of [__________], 1995, between Ohio Edison Company, a corporation duly organized and existing under the laws of the State of Ohio (herein called the "Company"), having its principal office at [__________], Ohio and The Bank of New York, a New York banking corporation, as Trustee (herein called the "Trustee"). Unless otherwise defined herein, all capitalized items used herein shall have the meanings ascribed to them in the Amended and Restated Trust Agreement among the Company, The Bank of New York, as trustee, The Bank of New York (Delaware), as trustee, R.H. Marsh, an individual, as trustee, T.F. Struck II, an individual, as trustee, and the several Holders, as therein defined, dated as of [__________], 1995 (the "Trust Agreement"), as in effect on the date hereof, the form of which is attached as Annex A hereto. RECITALS OF THE COMPANY WHEREAS, Ohio Edison Financing Trust may pursuant to the Underwriting Agreement dated [__________], 1995 among the Company, Ohio Edison Financing Trust and the Underwriters named therein issue up to $[__________] aggregate liquidation preference of its [____]% Trust Preferred Capital Securities, Series A, with a liquidation preference of $25 per Preferred Security representing undivided beneficial interests in the assets of Ohio Edison Financing Trust (the "Preferred Securities"); WHEREAS, the Company is guaranteeing the payment of distributions on the Preferred Securities, and payment of the Redemption Price and payments on liquidation with respect to the Preferred Securities, to the extent provided in the Guarantee Agreement dated [__________], 1995, by the Company and The Bank of New York, as guarantee trustee (the "Parent Guarantee") for the benefit of the holders of the Preferred Securities; WHEREAS, the Company wishes to sell to Ohio Edison Financing Trust, and Ohio Edison Financing Trust wishes to purchase from the Company, Securities (as defined below) in an aggregate principal amount equal to $[__________], and in satisfaction of the purchase price for such Securities, the trustees of Ohio Edison Financing Trust, on behalf of Ohio Edison Financing Trust, wish to (i) execute and deliver to the Company Common Securities certificates evidencing an ownership interest in Ohio Edison Financing Trust, registered in the name of the Company, in an aggregate amount of [__________] Common Securities having an aggregate liquidation amount of $[__________], and (ii) deliver to the Company the sum of $[__________]. 8 WHEREAS, the Company has duly authorized the creation of an issue of its [____]% Junior Subordinated Debentures, Series A, Due [2025] (the "Securities"), of substantially the tenor and amount hereinafter set forth and to provide therefor the Company has duly authorized the execution and delivery of this Indenture; and WHEREAS, all things necessary to make the Securities, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the Company, and to make this Indenture a valid agreement of the Company, in accordance with their and its terms, have been done; NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows: ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.01 Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles; and (4) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. "Act", when used with respect to any Holder, has the meaning specified in Section 1.04. "Additional Interest" means if Ohio Edison Financing Trust is required to pay any taxes, duties, assessments or -2- 9 governmental charges of whatever nature (other than withholding taxes) imposed by the United States or any other taxing authority, such amounts as shall be required so that the net amounts received and retained by Ohio Edison Financing Trust after paying such taxes, duties, assessments or governmental charges shall not be less than the amounts Ohio Edison Financing Trust would have received had no such taxes, duties, assessments or governmental charges been imposed. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Board of Directors" means either the board of directors of the Company or any duly authorized committee of that board. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means a day other than (x) a Saturday or a Sunday, (y) a day on which banks in New York, New York are authorized or obligated by law or executive order to remain closed or (z) a day on which the principal corporate trust office of the Property Trustee under the Trust Agreement or the Trustee is closed for business. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Securities" means the undivided beneficial interest in the assets of the Ohio Edison Financing Trust, having a liquidation amount of $25 per Common Security and having the rights provided therefor in the Trust Agreement. "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of -3- 10 this Indenture, and thereafter "Company" shall mean such successor Person. "Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Corporate Trust Office" means the principal corporate trust office of the Trustee in New York, New York, at which at any particular time its corporate trust business shall be administered and which at the date of this Indenture is 101 Barclay Street, Floor 21 West, New York, New York 10286. "Defaulted Interest" has the meaning specified in Section 3.07. "Event of Default" has the meaning specified in Section 5.01. "Extended Maturity" means, if the Company elects to extend the Stated Maturity in accordance with Section 3.13, the date selected by the Company which is after the Stated Maturity but before _________, 2044. "Extension Period" has the meaning specified in Section 3.01. "Holder" means a Person in whose name a Security is registered in the Security Register. "Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. "Interest Payment Date", when used with respect to any installment of interest on a Security, means the date specified in such Security as the fixed date on which an installment of interest with respect to the Securities is due and payable. "Maturity", when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity, Extended Maturity (if any) or by declaration of acceleration, call for redemption or otherwise. -4- 11 "No Recognition Opinion" means an Opinion of Counsel experienced in such matters, which Opinion of Counsel may rely on published revenue rulings of the Internal Revenue Service, to the effect that the holders of the Preferred Securities and Common Securities will not recognize any gain or loss for United States Federal income tax purposes as a result of a dissolution and distribution of Securities pursuant to a Special Event (as defined in the Trust Agreement) under Section 9.05 of the Trust Agreement. "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, or the Comptroller and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers' Certificate given pursuant to Section 10.04 shall be the principal executive, financial or accounting officer of the Company. Except for any Officers' Certificate furnished solely for purposes of complying with the provisions of Section 314(a)(4) of the Trust Indenture Act, any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Agreement shall include: (a) a statement that each officer signing the Officers' Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer upon which the statements or opinions of such officer contained in such Officers' Certificate are based; (c) a statement that, in each such officer's opinion, such officer has made such examination or investigation as is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Company, and who shall be acceptable to the Trustee. "Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying -5- 12 Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (iii) Securities which have been paid pursuant to Section 3.06, or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company. "Parent Guarantee" has the meaning specified in the Recitals to this instrument. "Paying Agent" means any Person authorized by the Company to pay the principal of or interest on any Securities on behalf of the Company. "Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof. "Predecessor Security" of any particular Security means every previous security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "Preferred Securities" has the meaning specified in the Recitals to this Indenture. "Redemption Date", when used with respect to any security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. "Regular Record Date" for the interest payable on any Interest Payment Date means the Business Day next preceding such Interest Payment Date; provided, however, that in the event that the Securities are distributed to holders of Preferred Securities pursuant to a liquidation of the Trust in accordance with Section 9.04 of the Trust Agreement and that at any time thereafter the Securities no longer remain in book-entry-only form, the Regular Record Date shall be the date (whether or not a Business Day) 15 days prior to the relevant Interest Payment Date. -6- 13 "Redemption Tax Opinion" means an Opinion of Counsel experienced in such matters to the effect that, as a result of a Tax Event, there is more than an insubstantial risk that the Company would be precluded from deducting the interest on the Securities for United States Federal income tax purposes even if the Securities were distributed to the holders of the Preferred Securities and Common Securities in liquidation of such holders' interests in Ohio Edison Financing Trust as described in Section 9.05 of the Trust Agreement. "Responsible Officer", when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Securities" has the meaning specified in the Recitals to this instrument. "Security Register" and "Security Registrar" have the respective meanings specified in Section 3.05. "Senior Indebtedness" means the principal of, premium, if any, interest on and any other payment due pursuant to any of the following, whether outstanding at the date hereof or hereafter incurred, created or assumed: (i) all indebtedness of the Company on a consolidated basis (other than any obligations to trade creditors) evidenced by notes, debentures, bonds, other securities or other instruments issued by the Company for money borrowed and capitalized lease obligations; (ii) all indebtedness of others of the kinds described in the preceding clause (i) assumed or guaranteed in any manner by the Company or in effect guaranteed by the Company; and (iii) all renewals, extensions or refundings of indebtedness of the kinds described in either of the preceding clauses (i) or (ii), unless, in the case of any particular indebtedness, renewal, extension or refunding, the instrument creating or evidencing the same or the assumption or guarantee of the same expressly provides that such indebtedness, renewal, extension or refunding is not superior in right of payment to or is pari passu with the Securities. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07. -7- 14 "Stated Maturity", when used with respect to any Security or any installment of interest thereon, means the date specified in such Security as the fixed date on which the principal, together with any accrued and unpaid interest (including Additional Interest), of such Security or such installment of interest is due and payable. "Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. "Tax Event" means the receipt by Ohio Edison Financing Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws or treaties (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, (b) any amendment to or change in an interpretation or application of such laws or regulations by any legislative body, court, governmental agency or regulatory authority (including the enactment of any legislation and the publication of any judicial decision or regulatory determination on or after the date of the issuance of the Preferred Securities), (c) any interpretation or pronouncement of any such body, court, agency or authority that provides for a position with respect to such laws or regulations that differs from the theretofore generally accepted position, or (d) any action taken by any governmental agency or regulatory authority, which amendment or change is enacted, promulgated or effective, or which interpretation or pronouncement is issued or announced, or which action is taken, in each case on or after the date of the issuance of the Preferred Securities, there is more than an insubstantial risk that (i) Ohio Edison Financing Trust is, or will be, subject to United States Federal income tax with respect to income accrued or received on the Subordinated Debentures, (ii) interest payable on the Subordinated Debentures is not, or will not be, fully deductible by the Company for United States Federal income tax purposes or (iii) Ohio Edison Financing Trust is, or will be, subject to more than a de minimis amount of other taxes, duties or other governmental charges. "Trust Agreement" has the meaning specified in the first paragraph of this Indenture. "Trustee" means the person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean such successor Trustee. -8- 15 "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Vice President", when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president". Section 1.02 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers' Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirement set forth in this Indenture. Section 1.03 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, -9- 16 statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. Section 1.04 Acts of Holders; Record Dates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The Company may, in the circumstances permitted by the Trust Indenture Act, fix any day as the record date for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Holders. If not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 7.01) prior to such first solicitation or vote, as the case may be. With regard to any record date, only the Holders on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action. (d) The ownership of Securities shall be proved by the Security Register. -10- 17 (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. Section 1.05 Notices, Etc., to Trustee and the Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, or (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company. Section 1.06 Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. -11- 18 In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. Section 1.07 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. Section 1.08 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 1.09 Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its respective successors and assigns, whether so expressed or not. Section 1.10 Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 1.11 Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, the holders of Senior Indebtedness, the holders of Preferred Securities (to the extent provided herein) and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 1.12 GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. -12- 19 Section 1.13 Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal of the Securities need not be made on such date, but may be made on the next succeeding Business Day (except that, if such Business Day is in the next succeeding calendar year, such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, shall be the immediately preceding Business Day) with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. ARTICLE II. SECURITY FORMS Section 2.01 Forms Generally. The Securities and the Trustee's certificates of authentication shall be in substantially the forms set forth in this Article, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. The definitive Securities shall be printed, lithographed or engraved or produced by any combination of these or other methods, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities. Section 2.02 Form of Face of Security. OHIO EDISON COMPANY [____]% JUNIOR SUBORDINATED DEBENTURE, SERIES A, DUE [2025] [S] [C] No.________________ $___________ CUSIP No. ___________ OHIO EDISON COMPANY, a corporation duly organized and existing under the laws of the State of Ohio (herein called "the -13- 20 Company," which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to [__________], or registered assigns, the principal sum of [__________] DOLLARS ($[__________]) on [__________] [2025] (or on such later date before _______, 2044, if the Company elects to extend the maturity date pursuant to the Indenture) and to pay interest on said principal sum from [__________], 1995 or from the most recent interest payment date (each such date, an "Interest Payment Date") to which interest has been paid or duly provided for, quarterly (subject to deferral as set forth herein), in arrears, on March 31, June 30, September 30 and December 31 of each year, commencing [__________], 1995, at the rate of [____]% per annum plus Additional Interest, if any, until the principal hereof shall have become due and payable, and on any overdue principal and (without duplication and to the extent that payment of such interest is enforceable under applicable law) on any interest installment in arrears for more than one quarter and on any interest on such overdue interest at the same rate per annum. The amount of interest payable for any period will be computed on the basis of twelve 30-day months and a 360-day year. In the event that any date on which interest is payable on this Security is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay), except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on the date the payment was originally payable. A "Business Day" means a day other than (x) a Saturday or a Sunday, (y) a day on which banks in The City of New York are authorized or obligated by law or executive order to remain closed or (z) a day on which the principal corporate trust office of the Property Trustee under the Trust Agreement or the Trustee, is closed for business. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the person in whose name this Security (or one or more Predecessor Securities, as defined in the Indenture) is registered at the close of business on the Regular Record Date for such interest installment, which shall be the close of business on the Business Day next preceding such Interest Payment Date. [IF PURSUANT TO THE PROVISIONS OF THE INDENTURE THE NOTES ARE NO LONGER REPRESENTED BY A GLOBAL NOTE -- which shall be the date (whether or not a Business Day) 15 days prior to the relevant Interest Payment Date.] Any such interest installment not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days -14- 21 prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. The Company shall have the right at any time during the term of this Security, from time to time, to extend the interest payment period of such Security for up to 20 consecutive quarters (an "Extension Period"), during which Extension Period interest will accrue but not be paid. Interest will accrue quarterly on accrued but unpaid interest during any Extension Period. At the end of such Extension Period, the Company shall pay all interest then accrued and unpaid (including interest accrued on unpaid interest as described above at the rate specified for the Securities to the extent that payment of such interest is permitted by applicable law). During any such Extension Period, the Company shall not (a) declare or pay dividends on, or make a distribution with respect to, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of its capital stock, or (b) make any payment of interest, principal or premium, if any on or repay, repurchase or redeem any debt securities issued by the Company that rank pari passu with or junior to the Securities, or (c) make any guarantee payment with respect to the foregoing (other than payments under the Parent Guarantee); provided, however, that restriction (a) above does not apply to any stock dividends paid by the Company where the dividend stock is the same as that on which the dividend is paid. Prior to the termination of any such Extension Period, the Company may further extend the interest payment period, provided that such Extension Period together with all such previous and further extensions thereof shall not exceed 20 consecutive quarters or extend beyond the Maturity of this Security. Upon the termination of any such Extension Period and upon the payment of all accrued and unpaid interest and any Additional Interest then due, the Company may select a new Extension Period, subject to the above requirements. No interest shall be due and payable during an Extension Period except at the end thereof. The Company shall give the Holder of this Security and the Trustee notice of its selection of an Extension Period at least one Business Day prior to the earlier of (i) the Interest Payment Date or (ii) the date Ohio Edison Financing Trust is required to give notice to the New York Stock Exchange or other applicable self-regulatory organization or to holders of the Preferred Securities of the record date or the date such distributions are payable, but in any event not less than one Business Day prior to such record date. Payment of the principal of and interest on this Security will be made at the office or agency of the Company maintained for that purpose in The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made (i) by check mailed to the address of the -15- 22 Person entitled thereto as such address shall appear in the Security Register or (ii) by wire transfer in immediately available funds at such place and to such account as may be designated by the Person entitled thereto as specified in the Security Register. The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided, and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions. Reference is hereby made to the further provisions of the Indenture summarized on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, Ohio Edison Company has caused this instrument to be duly executed under its corporate seal. Dated: __________, ____ OHIO EDISON COMPANY By:______________________________ Name: Title: Attest: ___________________________ -16- 23 Section 2.03 Form of Reverse of Security. This Security is one of a duly authorized issue of Securities of the Company, designated as its [____]% Junior Subordinated Debentures, Series A, Due [2025] (herein called the "Securities"), limited in aggregate principal amount to $[__________], issued under an Indenture, dated as of [__________], 1995 (herein called the "Indenture"), between the Company and The Bank of New York, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. All terms used in this Security which are defined in the Indenture or in the Trust Agreement attached as Annex A thereto shall have the meanings assigned to them in the Indenture or the Trust Agreement, as the case may be. On or after [__________], [2000] the Company shall have the right, subject to the terms and conditions of Article Twelve of the Indenture, to redeem this Security at the option of the Company, without premium or penalty, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount to be redeemed together with any accrued but unpaid interest, including Additional Interest, if any, to the Redemption Date. If a Tax Event as defined in Article One of the Indenture shall occur and be continuing, the Company shall have the right, subject to the terms and conditions of Article Twelve of the Indenture, to redeem this Security at the option of the Company, without premium or penalty, in whole but not in part, at a Redemption Price equal to 100% of the principal amount thereof plus accrued but unpaid interest, including any Additional Interest, if any, to the Redemption Date fixed by the Company, which Redemption Date shall be within 90 days following the occurrence of such Tax Event. Any redemption pursuant to this paragraph will be made upon not less than 30 nor more than 60 days' notice, at the Redemption Price. If the Securities are only partially redeemed by the Company, the Securities will be redeemed pro rata, by lot or in such other manner as the Trustee shall deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal to twenty-five U.S. dollars ($25) or any integral multiple thereof) of the principal amount of any Security. In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof. -17- 24 If an Event Of Default with respect to the Securities shall occur and be continuing, the principal of the Securities may be declared due and payable in the manner, with the effect and subject to the conditions provided in the Indenture. The Indenture contains provisions for satisfaction and discharge at any time of the entire indebtedness of this Security upon compliance by the Company with certain conditions set forth in the Indenture. The Indenture contains provisions permitting the Company and the Trustee, with the consent of Holders on not less than a majority in principal amount of the Outstanding Securities, to modify the Indenture in a manner affecting the rights of the Holders of the Securities; provided that no such modification may, without the consent of the Holder of each Outstanding Security, (i) extend the maturity of the Securities, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon subject to the Company's right hereunder to extend the interest payment period of this Security for up to 20 consecutive quarters, or reduce any premium payable upon the redemption thereof, or (ii) reduce the percentage of principal amount of the Securities, the Holders of which are required to consent to any such modification of the Indenture. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in The City of New York maintained for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated -18- 25 transferee or transferees. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. The Securities are issuable only in registered form without coupons in denominations of $25 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. Section 2.04 Form of Trustee's Certificate of Authentication. This is one of the Securities referred to in the within-mentioned Indenture. ______________________________, as Trustee By: __________________________ Authorized Signatory ARTICLE III. THE SECURITIES Section 3.01 Title and Terms. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is limited to the sum of (a) $[__________] [and (b) such aggregate principal amount (which may not exceed $[__________] aggregate principal amount) of Securities as shall be purchased by the "Underwriters" on the "Option Closing Date" (both as defined in the Underwriting Agreement) pursuant to and in accordance with the terms and provisions of the Underwriting Agreement, dated -19- 26 [__________], 1995, between the Company and [__________],] except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities pursuant to Section 3.04, 3.05, 3.06, 9.06 or 12.08. The Securities shall be known and designated as the "[____]% Junior Subordinated Debentures, Series A, Due [2025]" of the Company. Their Stated Maturity shall be [__________], [2025] (or such later date before __________, 2044, as the Company may elect pursuant to the provisions of Section 3.13(b) hereof and they shall bear interest at the rate of [____]% per annum, from [__________], 1995 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, payable quarterly (subject to deferral as set forth herein), in arrears, on March 31, June 30, September 30 and December 31 of each year, commencing [__________], 1995 until the principal thereof is paid or made available for payment. Interest will accrue quarterly at the rate of [____]% per annum on any interest installment in arrears for more than one quarter and on any interest on such overdue interest. In the event that any date on which interest is payable on the Securities is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (except that, if such Business Day is in the next succeeding calendar year, such Interest Payment Date shall be the immediately preceding Business Day) (and without any interest or other payment in respect of any such delay). The Company shall have the right, at any time during the term of the Securities, from time to time to extend the interest payment period for up to 20 consecutive quarters (the "Extension Period") during which Extension Periods interest will accrue but not be paid. Interest will accrue quarterly on accrued but unpaid interest during any Extension Period. At the end of such Extension Period the Company shall pay all interest then accrued and unpaid thereon (including interest accrued on unpaid interest as described above at the rate specified for the Securities to the extent permitted by applicable law). During any such Extension Period, the Company shall not (a) declare or pay dividends on, or make a distribution with respect to, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of its capital stock, or (b) make any payment of interest, principal or premium, if any on or repay, repurchase or redeem any debt securities issued by the Company that rank pari passu with or junior to the Securities, or (c) make any guarantee payment with respect to the foregoing (other than payments under the Parent Guarantee); provided, however, that restriction (a) above does not apply to any stock dividends paid by the Company where the dividend stock is the same as that on which the dividend is paid. Prior to the termination of any such Extension Period, the Company may further extend the interest payment period, provided that such Extension Period together with all -20- 27 such previous and further extensions thereof shall not exceed 20 consecutive quarters or extend beyond the Maturity of the Securities. Upon termination of any Extension Period and upon the payment of all accrued and unpaid interest and any Additional Interest then due, the Company may select a new Extension Period, subject to the above requirements. No interest shall be due and payable during an Extension Period, except at the end thereof. The Company shall give Ohio Edison Financing Trust and the Trustee notice of its selection of such Extension Period at least one Business Day prior to the earlier of (i) the Interest Payment Date or (ii) the date Ohio Edison Financing Trust is required to give notice to the New York Stock Exchange or other applicable self- regulatory organization or to holders of the Preferred Securities of the record date or the date such distributions are payable, but in any event not less than one Business Day prior to such record date. The principal of and interest on the Securities shall be payable at the office or agency of the Company in The City of New York maintained for such purpose and at any other office or agency maintained by the Company for such purpose in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (ii) by wire transfer in immediately available funds at such place and to such account as may be designated by the Person entitled thereto as specified in the Security Register. The Securities shall be subordinated in right of payment to Senior Indebtedness as provided in Article Eleven. The Securities shall be redeemable as provided in Article Twelve. Section 3.02 Denominations. The Securities shall be issuable only in registered form, without coupons, and only in denominations of $25 and any integral multiple thereof. Section 3.03 Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents, under its corporate seal reproduced thereon attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. -21- 28 Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of then have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities. At any time from time to time after the execution and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities; and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities as in this Indenture provided and not otherwise. Each Security shall be dated the date of its authentication. No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Section 3.04 Temporary Securities. Pending the preparation of definitive Securities, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. If temporary Securities are issued, the Company will cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at any office or agency of the Company designated pursuant to Section 10.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations. Until so exchanged the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities. -22- 29 Section 3.05 Registration of Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency designated pursuant to Section 10.02 being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed "Security Registrar" for the purpose of registering Securities and transfers of Securities as herein provided. Upon surrender for registration of transfer of any Security at an office or agency of the Company designated pursuant to Section 10.02 for such purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal amount. At the option of the Holder, Securities may be exchanged for other Securities of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04 or 9.06 not involving any transfer. The Company shall not be required (i) to issue, to register the transfer of or to exchange Securities during a period of 15 days immediately preceding the date on which notice -23- 30 identifying the serial numbers of the Securities called for redemption is mailed, or (ii) to issue, to register the transfer of or to exchange any Security selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part. Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. -24- 31 Section 3.07 Payment of Interest; Interest Rights Preserved. Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Any interest on any Security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2). -25- 32 (2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and, if so listed, upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue (including in each such case Additional Interest), which were carried by such other Security. Section 3.08 Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee shall treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and (subject to Section 3.07) interest (including Additional Interest) on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Section 3.09 Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of as directed by a Company Order; provided, however, that the Trustee shall not be required to destroy the certificate or certificates representing any of such canceled Securities. Section 3.10 Computation of Interest. Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months. Section 3.11 Right of Set-Off. -26- 33 Notwithstanding anything to the contrary in this Indenture, the Company shall have the right to set-off any payment it is otherwise required to make hereunder to the extent the Company has theretofore made, or is concurrently on the date of such payment making, a payment under the Parent Guarantee. Section 3.12 CUSIP Numbers. The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. Section 3.13 Maturity. (a) The Maturity will be either: (i) the Stated Maturity set forth in Section 3.01 above; or (ii) if the Company elects to extend the Maturity beyond the Stated Maturity in accordance with Section 3.13(b), the Extended Maturity; (b) the Company may, at any time before the day which is 90 days before the Stated Maturity, elect to extend the Maturity once only to the Extended Maturity, provided that the following conditions in this Section 3.13(b) are satisfied both at the date the Company gives notice in accordance with Section 3.13(c) of its election to extend the Maturity and at the Stated Maturity: (i) the Company is not in bankruptcy or otherwise insolvent; (ii) the Company is not in default on any Securities issued to Ohio Edison Financing Trust or any trustee of Ohio Edison Financing Trust in connection with the issuance of Preferred Securities; (iii) the Company has made timely payments on the Securities for the immediately preceding six quarters without deferrals; (iv) Ohio Edison Financing Trust is not in arrears on payments of distributions on the Preferred Securities issued by it; and -27- 34 (v) the Securities are rated in any of the three highest rating categories or the equivalent by any one of Standard & Poor's Corporation, Moody's Investors Service, Inc., Fitch Investor Services, Duff & Phelps Credit Rating Company or any other nationally recognized statistical rating organization; and (c) if the Company elects to extend the Stated Maturity in accordance with Section 3.13(b), the Company shall give notice to Holders of the Securities, the Property Trustee, Ohio Edison Financing Trust and the Trustee of the extension of the Maturity and the Extended Maturity at least 90 days before the Stated Maturity. In addition, the Company shall provide the Trustee with an Officers' Certificate and such documentation, if any, as the Trustee may reasonably request establishing that the conditions precedent contained in Section 3.13(b) have been complied with. ARTICLE IV. SATISFACTION AND DISCHARGE Section 4.01 Satisfaction and Discharge of Indenture. This Indenture shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (1) either (A) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or (B) all such Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable, or (ii) will become due and payable at their Stated Maturity within one year, or (iii) are to be called for redemption within one year under arrangements satisfactory to the -28- 35 Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest (including Additional Interest) to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; or (C) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (2) the Company has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive. Section 4.02. Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and interest for whose payment such money has been deposited with the Trustee. The Trustee shall not invest money deposited with it pending distribution of such amounts. ARTICLE V. REMEDIES Section 5.01 Events of Default. "Event of Default," wherever used herein, means any one of the following events that has occurred and is continuing (whatever the reason for such Event of Default and whether it -29- 36 shall be occasioned by the provisions of Article XI or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (1) failure for 10 days to pay any interest on the Securities, including any Additional Interest in respect thereof, when due (subject to the deferral of any due date in the case of an Extension Period); or (2) failure to pay any principal on the Securities when due whether at Maturity, upon redemption, by declaration or otherwise; or (3) failure to observe or perform in any material respect any other covenant herein for 90 days after written notice to the Company from the Trustee or the holders of at least 25% in principal amount of the outstanding Securities; or (4) entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of substantially all of the property of the Company, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or (5) the commencement by the Company of a voluntary case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company or to the entry of a decree or order for relief in respect of itself in an involuntary case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company, or the filing by the Company of a petition or answer or consent seeking reorganization or relief under any applicable Federal or state law, or the consent by the Company to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar -30- 37 official of the Company or of any substantial part of the property of the Company, or the making by the Company of an assignment for the benefit of creditors, or the admission by the Company in writing of its inability to pay its debts generally, as they become due, or the taking of corporate action by the Company in furtherance of any such action. Section 5.02 Acceleration of Maturity; Rescission and Annulment. If an Event of Default described in clause (1), (2), (3) or (5) of Section 5.01 occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities shall have the right, by a notice in writing to the Company (and to the Trustee if given by Holders), to declare the principal of and the interest on all the Securities (including any Additional Interest) and any other amounts payable hereunder to be due and payable immediately, and upon any such declaration such principal and all accrued interest shall become immediately due and payable; provided, however, that if upon the occurrence and continuation of an Event of Default described in clause (1), (2), (3) or (5) of Section 5.01, the Trustee or the Holders of at least 25% in aggregate principal amount of the outstanding Securities fail to declare the payment of all amounts on the Securities to be immediately due and payable, the holders of at least 25% in aggregate liquidation preference of Preferred Securities then outstanding shall have such right, by a notice in writing to the Company and to the Trustee, to enforce any and all other rights of Holders of Securities as creditors with respect to the Securities. If an Event of Default described in Section 5.01(4) occurs and is continuing, then and in every such case the principal of and the interest on all the Securities (including any Additional Interest) and any other amounts payable hereunder shall become immediately due and payable without any action on the part of the Trustee or the Holders of the Outstanding Securities. At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if (1) the Company has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue interest (including any Additional Interest) on all Securities, (B) the principal of any Securities which have become due otherwise than by such declaration of acceleration and interest thereon at the rate borne by the Securities, (C) to the extent that payment of such interest is lawful, interest upon overdue interest (including -31- 38 any Additional Interest) at the rate borne by the Securities, and (D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and (2) all Events of Default, other than the non-payment of the principal of Securities which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13. No such rescission shall affect any subsequent default or impair any right consequent thereon. Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if (1) default is made in the payment of any interest (including any Additional Interest) on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or (2) default is made in the payment of the principal of any Security at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and interest (including any Additional Interest), and, to the extent that payment thereof shall be legally enforceable, interest on any overdue principal and on any overdue interest (including any Additional Interest), at the rate borne by the Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. Section 5.04 Trustee May File Proofs of Claim. -32- 39 In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07. No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. Section 5.05 Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. Section 5.06 Application of Money Collected. Subject to Article XI, any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest (including any Additional Interest), upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: -33- 40 FIRST: To the payment of all amounts due the Trustee under Section 6.07; SECOND: To the payment of the amounts then due and unpaid for principal of and interest (including any Additional Interest) on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest (including any Additional Interest), respectively; and THIRD: The balance, if any, to the Company or any other Persons entitled thereto. Section 5.07 Limitation on Suits. No Holder of any Security shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (1) such Holder has previously given written notice to the Trustee of a continuing Event of Default; (2) the Holders of not less than 25% in principal amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities; it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders. -34- 41 Section 5.08 Unconditional Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and (subject to Section 3.07) interest (including any Additional Interest) on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. Section 5.09 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. Section 5.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Section 5.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. -35- 42 Section 5.12 Control by Holders. The Holders of a majority in principal amount of the Outstanding Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, provided that (1) such direction shall not be in conflict with any rule of law or with this Indenture; and (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. Section 5.13 Waiver of Past Defaults. Subject to Section 9.02 hereof, the Holders of not less than a majority in principal amount of the Outstanding Securities may on behalf of the Holders of all the Securities waive any past default hereunder and its consequences, except a default (1) in the payment of the principal of or interest (including any Additional Interest) on any Security (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the Trustee); or (2) in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Section 5.14 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or the Trustee or in any suit for the enforcement of the right to receive the principal of and interest (including any Additional Interest) on any Security. -36- 43 Section 5.15 Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which nay affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE VI. THE TRUSTEE Section 6.01 Certain Duties and Responsibilities. The duties and responsibilities of the Trustee shall be as provided by this Indenture and by the Trust Indenture Act, and no implied covenants or obligations shall be read into this Indenture against the Trustee. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Notwithstanding anything contained in this Indenture to the contrary, the duties and responsibilities of the Trustee under this Indenture shall be subject to the protections and limitations on liability afforded to the Trustee under this Indenture, the Trust Indenture Act and to the extent applicable, Rule 3a-7 under the Investment Company Act of 1940, or any successor rule thereunder. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. Section 6.02 Notice of Defaults. The Trustee shall give the Holders notice within 60 days of any default hereunder as and to the extent provided by the Trust Indenture Act. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default. Section 6.03 Certain Rights of Trustee. Subject to the provisions of Section 6.01: -37- 44 (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) the Trustee may consult with counsel of its choice and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including attorneys' fees and expenses) and liabilities which might be incurred by it in compliance with such request or direction; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or -38- 45 negligence on the part of any agent or attorney appointed with due care by it hereunder; (h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (i) the Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Securities unless either (1) a Responsible Officer of the Trustee shall have actual knowledge of the default or Event of Default or (2) written notice of such default or Event of Default shall have been given to the Trustee by the Company or by any Holder of the Securities; (j) no provision of this Indenture shall be deemed to impose any duty or obligation on the Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation; and no permissive power or authority available to the Trustee shall be construed to be a duty; and (k) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such risk or liability is not reasonably assured to it. Section 6.04 Not Responsible For Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof. Section 6.05 May Hold Securities. The Trustee, any Paying Agent, any Security Registrar, or any other agent of the Company, in its individual or any other -39- 46 capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar, or such other agent. Money held by the Trustee in trust hereunder shall not be invested by the Trustee pending distribution thereof to the holders of the Securities. Section 6.06 Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company. Section 6.07 Compensation and Reimbursement. The Company agrees (1) to pay to the Trustee from time to time such reasonable compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith, and (3) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it harmless from and against, any and all loss, damage, claim, liability or expense, including taxes (other than taxes based on the income of the Trustee) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, and premium (if any) or interest on, particular Securities. Should the Trustee incur expenses or render services in connection with an Event of Default specified -40- 47 in Section 501(4) or Section 501(5), those expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law. The provisions of this Section shall survive the termination of this Indenture. Section 6.08 Disqualification; Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. The Trust Agreement and the Guarantee Agreement shall be deemed to be specifically described in this Indenture for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. Section 6.09 Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust Office in New York, New York. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. Section 6.10 Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 6.11. (b) The Trustee may resign at any time by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee. -41- 48 (c) The Trustee may be removed at any time by Act of the Holders of a majority in principal amount of the Outstanding Securities, delivered to the Trustee and to the Company. (d) If at any time: (1) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or (2) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove the Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor Trustee appointed by the Company if no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee. (f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. -42- 49 Section 6.11 Acceptance of Appointment by Successor. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; provided that, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject, nevertheless, to the retiring Trustee's prior lien provided for in Section 6.07. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts. No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. Section 6.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. Section 6.13 Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor). -43- 50 ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY Section 7.01 Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee (a) semiannually, not later than February 15 and August 15 in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of a date not more than 15 days prior to the delivery thereof, and (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more then 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar. Section 7.02 Preservation of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished. (b) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act. (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act. Section 7.03 Reports by Trustee. (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. Such of those -44- 51 reports as are required to be transmitted by the Trustee pursuant to the provisions of Section 313(a) of the Trust Indenture Act shall be so transmitted within 60 days after July 31 of each year, commencing with July 31, 1996. (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which the Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when the Securities are listed on any stock exchange. Section 7.04 Reports by Company. The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE Section 8.01 Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless: (1) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases the properties and assets of the Company substantially as an entirety shall be a corporation, partnership or trust, shall be organized and validly existing under the laws of the United States of -45- 52 America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and interest (including any Additional Interest) on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed; (2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; (3) such consolidation or merger or conveyance, transfer or lease of properties or assets of the Company is permitted under, and does not give rise to any breach or violation of, the Trust Agreement or the Parent Guarantee; and (4) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with. Section 8.02 Successor Substituted. Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities. ARTICLE IX. SUPPLEMENTAL INDENTURES -46- 53 Section 9.01 Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or (2) to add to the covenants of the Company for the benefit of the Holders, or to surrender any right or power herein conferred upon the Company; or (3) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make and other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture, provided that such action pursuant to this clause (3) shall not adversely affect the interests of the Holders of the Securities or, so long as any of the Preferred Securities shall remain outstanding, the holders of the Preferred Securities; or (4) to comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act. Section 9.02 Supplemental Indentures with Consent of Holders. With the consent of the Holders of not less than 66 2/3% in principal amount of the Outstanding Securities, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby, (1) change the Maturity of the principal of, or the Stated Maturity of any installment of interest on (including any Additional Interest) any Security, or reduce the principal amount thereof or the rate of interest thereon, or change the place of payment where, or the coin or currency in which, any Security or interest thereon is payable, or impair the right to institute suit for the enforcement of -47- 54 any such payment on or after the Maturity or, as the case may be, the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or modify the provisions of this Indenture with respect to the subordination of the Securities in a manner adverse to the Holders, (2) reduce the percentage in principal amount of the Outstanding Securities, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or (3) modify any of the provisions of this Section, Section 5.13, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided that, so long as any of the Preferred Securities remains outstanding, no such amendment shall be made that adversely affects the holders of the Preferred Securities, and no termination of this Agreement shall occur, and no waiver of any Event of Default or compliance with any covenant under this Agreement shall be effective, without the prior consent of the holders of at least 66-2/3% of the aggregate liquidation preference of the Preferred Securities at the time outstanding, calculated in the manner provided in the Trust Agreement, unless and until the Securities and all accrued and unpaid interest (including any Additional Interest) thereon have been paid in full. It shall not be necessary for any Act of Holders or any consent of holders of Preferred Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Section 9.03 Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. -48- 55 Section 9.04 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. Section 9.05 Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act. Section 9.06 Reference in Securities to Supplemental Indentures. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities. ARTICLE X. COVENANTS; REPRESENTATIONS AND WARRANTIES Section 10.01 Payment of Principal and Interest. The Company will duly and punctually pay the principal of and interest on the Securities in accordance with the terms of the Securities and this Indenture. Section 10.02 Maintenance of Office or Agency. The Company will maintain in The City of New York an office or agency where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer or exchange, where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby -49- 56 appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies (in the United States) where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the United States for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Section 10.03 Money for Security Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent, it will, on or at the option of the Company before each due date of the principal of or interest on any of the Securities, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of are herein provided and will promptly notify the Trustee of its action or failure so to act. In such case the Company shall not invest the amount so segregated and held in trust pending the distribution thereof. Whenever the Company shall have one or more Paying Agents, it will, prior to each due date of the principal of or interest on any Securities, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will: (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by the Company (or any other obligor upon the Securities) in the making of any payment in respect of the Securities, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent as such. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order, direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts those upon which such sums were held by the -50- 57 Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or interest on any Security and remaining unclaimed for two years after such principal or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged From such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease. Section 10.04 Statement by Officers as to Default. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers' Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the material terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge, and otherwise complying with the requirements of Section 314(a)(4) of the Trust Indenture Act. Section 10.05 Additional Covenants. The Company covenants and agrees that it will not (a) declare or pay dividends on, or make a distribution with respect to, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of its capital stock, or (b) make any payment of interest, principal or premium, if any on or repay, repurchase or redeem any debt securities issued by the Company that rank pari passu with or junior to the Securities, or (c) make any guarantee payment with respect to the foregoing (other than payments under the Parent Guarantee) if at such time (i) there shall have occurred any event of which the Company has actual knowledge that (x) with the giving of notice or the lapse of time or both, would constitute an Event of Default hereunder and (y) in respect of which the Company shall not have taken reasonable steps to cure, (ii) the Company shall be in default with respect to its payment of any obligations under the Parent Guarantee or (iii) the Company shall have given notice of its selection of an Extension Period as provided herein and such period, or any extension thereof, shall be continuing; provided, however, that restriction (a) above does not apply to any stock dividends paid by the Company where the dividend stock is the same as that on which the dividend is paid. -51- 58 The Company also covenants (i) to maintain 100% ownership of the Common Securities of Ohio Edison Financing Trust; provided, however, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) not to voluntarily dissolve, wind-up or terminate Ohio Edison Financing Trust, except in connection with a distribution of the Securities to the holders of Preferred Securities in liquidation of Ohio Edison Financing Trust or in connection with certain mergers, consolidations or amalgamation permitted by the Trust Agreement and (iii) to use its reasonable efforts, consistent with the terms and provisions of the Trust Agreement, to cause Ohio Edison Financing Trust to remain a business trust and not to be classified as an association taxable as a corporation for United States federal income tax purposes. ARTICLE XI. SUBORDINATION OF SECURITIES Section 11.01 Securities Subordinate to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article (subject to Article IV), the payment of the principal of and interest (including any Additional Interest) on each and all of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full in cash of all Senior Indebtedness. This Article XI shall constitute a continuing offer to all persons who become holders of, or continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the holders of Senior Indebtedness and such holders are made obligees hereunder and any one or more of them may enforce such provisions. Holders of Senior Indebtedness need not prove reliance on the subordination provisions hereof. Section 11.02 Default on Senior Indebtedness. In the event and during the continuation of any default in the payment of principal, premium, interest or any other payment due on any Senior Indebtedness (and any applicable grace period with respect to such default has ended and such default has not been cured or waived) or in the event that the maturity of any Senior Indebtedness has been accelerated because of a default, then, in either case, no payment shall be made by the Company with respect to the principal (including redemption payments) of, or interest on, the Securities. In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee or any Holder when such -52- 59 payment is prohibited by the preceding paragraph of this Section 11.02, such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, but only to the extent that the holders of the Senior Indebtedness (or their representative or representatives or a trustee) notify the Trustee within 90 days of such payment of the amounts then due and owing on the Senior Indebtedness and only the amounts specified in such notice to the Trustee shall be paid to the holders of Senior Indebtedness. Section 11.03 Liquidation; Dissolution; Bankruptcy. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all amounts due upon all Senior Indebtedness shall first be paid in full, or payment thereof provided for in money in accordance with its terms, before any payment is made on account of the principal or interest on the Securities; and upon any such dissolution or winding-up or liquidation or reorganization any payment by the Company, or distribution of substantially all of the assets of the Company of any kind or character, whether in cash, property or securities, to which the holders of the Security or the Trustee would be entitled, except for the provisions of this Article XI, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders; as calculated by the Company) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Indebtedness in full, in money or money's worth, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness, before any payment or distribution is made to the Holders of Securities or to the Trustee. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities before all Senior Indebtedness is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust -53- 60 for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness. For purposes of this Article XI, the words "cash, property or securities" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article XI with respect to the Securities to the payment of all Senior Indebtedness that may at the time be outstanding, provided, however, that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another corporation upon the terms and conditions provided for in Article VIII hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 11.03 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article VIII hereof. Nothing in Section 11.02 or in this Section 11.03 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07. Section 11.04 Subrogation. Subject to the payment in full of all Senior Indebtedness, the rights of the Holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to the Senior Indebtedness until the principal of (and premium, if any) and interest on the Securities shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article XI, and no payment over pursuant to the provisions of this Article XI, to or for the benefit of the holders of Senior Indebtedness by Holders of the Securities or the Trustee, shall, as between the Company, its -54- 61 creditors other than holders of Senior Indebtedness, and the Holders of the Securities, be deemed to be a payment by the Company to or on account of the Senior Indebtedness. It is understood that the provisions of this Article XI are and are intended solely for the purposes of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Indebtedness on the other hand. Nothing contained in this Article XI or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Securities the principal of (and premium, if any) and interest on the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders of the Securities and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article XI of the holders of Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise of any such remedy. Upon any payment or distribution of assets of the Company referred to in this Article XI, the Trustee, subject to the provisions of Section 6.01 and the Holders of the Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the Securities, for the purposes of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XI. Section 11.05 Trustee to Effectuate Subordination. Each Holder of a Security by acceptance thereof authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article XI and appoints the Trustee such Holder's attorney-in-fact for any and all such purposes. -55- 62 Section 11.06 Notice by the Company. The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Company that would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this Article XI. Notwithstanding the provisions of this Article XI or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this Article XI, unless and until a Responsible Officer of the Trustee shall have received written notice thereof at the Corporate Trust Office of the Trustee from the Company or a holder or holders of Senior Indebtedness or from any trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions of Section 6.01, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice provided for in this Section 11.06 at least two Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of (or premium, if any) or interest on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purposes for which they were received, and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date. The Trustee, subject to the provisions of Section 6.01, shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a trustee on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article XI, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article XI, and if such evidence is not furnished the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Section 11.07 Rights of the Trustee; Holders of Senior Indebtedness. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article XI in -56- 63 respect of any Senior Indebtedness at any time held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article XI, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and, subject to the provisions of Section 6.01, the Trustee shall not be liable to any holder of Senior Indebtedness if it shall pay over or deliver to holders of Securities, the Company or any other Person money or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article XI or otherwise. Section 11.08 Subordination May Not be Impaired. No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or otherwise be charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing the subordination provided in this Article or the obligations hereunder of the Holders of the Securities to the holders of Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness or otherwise amend or supplement in any manner Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any Person liable in any manner for the collection of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Company and any other Person. -57- 64 ARTICLE XII. REDEMPTION OF SECURITIES Section 12.01 Optional Redemption; Conditions to Optional Redemption. On or after [__________], [2000], the Company shall have the right, subject to the last paragraph of this Section 12.01, to redeem the Securities at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of Securities to be redeemed together with any accrued but unpaid interest, including Additional Interest, if any, to the Redemption Date fixed by the Company. If in the case of the occurrence of a Tax Event, after receipt of a Dissolution Tax Opinion (as defined in the Trust Agreement) by the Administrative Trustees (as defined in the Trust Agreement) of Ohio Edison Financing Trust, (i) the Company has received a Redemption Tax Opinion or (ii) such Administrative Trustees of Ohio Edison Financing Trust shall have been informed by the tax counsel referred to in the definition of "No Recognition Opinion" herein that it cannot deliver a No Recognition Opinion to Ohio Edison Financing Trust, the Company shall have the right, upon not less than 30 nor more than 60 days' notice, to redeem the Securities at the option of the Company, in whole but not in part, at a Redemption Price equal to 100% of the principal amount thereof plus accrued but unpaid interest, including any Additional Interest, if any, to the Redemption Date fixed by the Company, which Redemption Date shall be within 90 days following the occurrence of such Tax Event; provided, however, that, if at the time there is available to the Company or Ohio Edison Financing Trust the opportunity to eliminate, within such 90-day period, the Tax Event by taking some ministerial action, such as filing a form or making an election or pursuing some other similar reasonable measure which has no adverse effect on Ohio Edison Financing Trust, the Company or the holders of the Preferred Securities or the Common Securities, the Company or Ohio Edison Financing Trust shall pursue such measure in lieu of redemption of the Securities. For so long as Ohio Edison Financing Trust is the Holder of all Securities Outstanding, the proceeds of any redemption described in this Section 12.01 or payments at Maturity shall be used by Ohio Edison Financing Trust to redeem Preferred Securities and Common Securities in accordance with their terms and the terms of the Trust Agreement. The Company shall not redeem the Securities in part unless all accrued and unpaid interest (including any Additional Interest) has been paid in full on all Securities Outstanding for all quarterly interest periods terminating on or prior to the Redemption Date. Section 12.02 Applicability of Article. -58- 65 Redemption of Securities at the election of the Company, as permitted by Section 12.01, shall be made in accordance with the terms of the Securities and this Article. Section 12.03 Election to Redeem; Notice to Trustee. The election of the Company to redeem Securities pursuant to Section 12.01 shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company, the Company shall, at least 15 days prior to the mailing of the notice of redemption to the Holders of Securities to be redeemed pursuant to Section 12.04, notify the Trustee of such Redemption, of the principal amount of Securities to be redeemed and of the Redemption Date fixed by the Company therefor, and provide the Trustee with a copy of the notice of redemption to be given to Holders of Securities to be redeemed pursuant to Section 12.04. Section 12.04 Selection by Trustee of Securities to Be Redeemed. If less than all the Securities are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities not previously called for redemption, by such method (including pro rata or by lot) as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to $25 or any integral multiple thereof) of the principal amount of the Securities. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed. The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. Section 12.05 Notice of Redemption. -59- 66 Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register. All notices of redemption shall identify the Securities to be redeemed (including CUSIP number) and shall state: (1) the Redemption Date; (2) the Redemption Price; (3) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and that interest thereon will cease to accrue on and after said date; and (4) the place or places where such Securities are to be surrendered for payment of the Redemption Price. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company. Section 12.06 Deposit of Redemption Price. Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date. Section 12.07 Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07. -60- 67 If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate borne by the Security. Section 12.08 Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at a place of payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. -61- 68 This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. OHIO EDISON COMPANY By: ------------------------------ Name: Title: Attest: ----------------------------- THE BANK OF NEW YORK By: ------------------------------ Name: Title: Attest: ----------------------------- -62- 69 STATE OF __________ ) : ss.: COUNTY OF _________ ) On the _________ day of _________________, 1995, before me personally came ________________________________________, to me known, who, being by me duly sworn, did depose and say that he/she is the ___________________________ of Ohio Edison Company, one of the corporations described in and which executed the foregoing instrument; and that he/she signed his/her name thereto by authority of the Board of Directors of such corporation. ----------------------------------- 70 STATE OF __________ ) : ss.: COUNTY OF _________ ) On the _________ day of _________________, 1995, before me personally came ________________________________________, to me known, who, being by me duly sworn, did depose and say that he/she is a _______________ of _________________________, a corporation described in and which executed the foregoing instrument; and that he/she signed his/her name thereto by authority of the Board of Directors of such corporation. ----------------------------------- 71 ANNEX A Form of Amended and Restated Trust Agreement [OMITTED] EX-4.7 7 EXHIBIT 4.7 1 EXHIBIT 4.7 -------------------------------------------------------------------------------- GUARANTEE AGREEMENT Between OHIO EDISON COMPANY (as Guarantor) and THE BANK OF NEW YORK (as Trustee) dated as of _____________ ___, 1995 -------------------------------------------------------------------------------- 2 CROSS-REFERENCE TABLE*
Section of Trust Indenture Act of 1939, as amended Agreement ------------------- --------- 310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 4.01(a) 310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 4.01(c),2.08 310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . Inapplicable 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 2.02(b) 311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 2.02(b) 311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . Inapplicable 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 2.02(a) 312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 2.02(b) 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 2.03 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 2.04 314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . Inapplicable 314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 2.05 314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . Inapplicable 314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1.01,2.05,3.02 314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 2.01,3.02 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 3.01(d) 315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 2.07 315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 3.01 315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 3.01(d) 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 5.04(a),2.06 316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 5.03 316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 2.02 317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . Inapplicable 317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . Inapplicable 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 2.01(b) 318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 2.01 318(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 2.01(a)
__________ * This Cross-Reference Table does not constitute part of the Guarantee Agreement and shall not affect the interpretation of any of its terms or provisions. #30105589.4 3 TABLE OF CONTENTS
Page ---- ARTICLE I. DEFINITIONS SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SECTION 1.02. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARTICLE II. TRUST INDENTURE ACT SECTION 2.01. Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . 5 SECTION 2.02. Lists of Holders of Securities . . . . . . . . . . . . . . . . . . . . 5 SECTION 2.03. Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . 5 SECTION 2.04. Periodic Reports to Trustee . . . . . . . . . . . . . . . . . . . . . 5 SECTION 2.05. Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SECTION 2.06. Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . 6 SECTION 2.07. Event of Default; Notice . . . . . . . . . . . . . . . . . . . . . . . 6 SECTION 2.08. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . 6 ARTICLE III. POWERS, DUTIES AND RIGHTS OF TRUSTEE SECTION 3.01. Powers and Duties of the Trustee . . . . . . . . . . . . . . . . . . . 7 SECTION 3.02. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . 8 ARTICLE IV. TRUSTEE SECTION 4.01. Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . 10 SECTION 4.02. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . 11 SECTION 4.03. Appointment, Removal and Resignation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-i- #30105589.4 4 ARTICLE V. GUARANTEE SECTION 5.01. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 SECTION 5.02. Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . . . 12 SECTION 5.03. Obligations Not Affected . . . . . . . . . . . . . . . . . . . . . . 12 SECTION 5.04. Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 5.05. Guarantee of Payment . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 5.06. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 5.07. Independent Obligations . . . . . . . . . . . . . . . . . . . . . . 14 ARTICLE VI. SUBORDINATION SECTION 6.01. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ARTICLE VII. TERMINATION SECTION 7.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE VIII. MISCELLANEOUS SECTION 8.01. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 15 SECTION 8.02. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 SECTION 8.03. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 SECTION 8.04. Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 8.05. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-ii- #30105589.4 5 GUARANTEE AGREEMENT This GUARANTEE AGREEMENT, dated as of __________ __, 1995, is executed and delivered by Ohio Edison Company, an Ohio corporation (the "Guarantor"), and The Bank of New York, as trustee (the "Trustee"), for the benefit of the Holders (as defined herein) from time to time of the Preferred Securities (as defined herein) of Ohio Edison Financing Trust, a Delaware statutory business trust (the "Issuer"). WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust Agreement"), dated as of [___________], 1995 among the Trustees of the Issuer named therein, Ohio Edison Company, as Depositor, and the Holders from time to time of undivided beneficial interests in the assets of the Issuer, the Issuer is issuing as of the date hereof $[__________] aggregate liquidation amount of its [____]% Trust Preferred Capital Securities, Series A (the "Preferred Securities") representing undivided beneficial interests in the assets of the Issuer and having the terms set forth in the Trust Agreement; WHEREAS, the Preferred Securities will be issued by the Issuer and the proceeds thereof will be used to purchase the Debentures (as defined in the Trust Agreement) of the Guarantor as trust assets; and WHEREAS, as incentive for the Holders to purchase the Preferred Securities the Guarantor desires to irrevocably and unconditionally agree, to the extent set forth herein, to pay to the Holders of the Preferred Securities the Guarantee Payments (as defined herein) and to make certain other payments on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the payment for the Preferred Securities by each Holder thereof, which payment the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the benefit of the Holders from time to time of the Preferred Securities. ARTICLE I. DEFINITIONS SECTION 1.01. Definitions. As used in this Guarantee Agreement, the terms set forth below shall, unless the context otherwise requires, have the following meanings. Capitalized or otherwise defined terms used but not otherwise defined herein 6 shall have the meanings assigned to such terms in the Trust Agreement as in effect on the date hereof. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Common Securities" means an undivided beneficial interest in the assets of the Issuer, having a liquidation amount of $25 per Common Security and having the rights provided therefor in the Trust Agreement. "Event of Default" means a default by the Guarantor on any of its payment obligations under this Guarantee Agreement. "Guarantee Agreement" means this Guarantee Agreement as originally executed or as it may from time to time be amended pursuant to the applicable provisions hereof, including, for all purposes of this Guarantee Agreement and any such amendment, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Guarantee Agreement and any such amendment. "Guarantee Payments" shall mean the following payments or distributions, without duplication, with respect to the Preferred Securities, to the extent not paid or made by or on behalf of the Issuer: (i) any accrued and unpaid Distributions that are required to be paid on such Preferred Securities but if and only to the extent the Property Trustee has available in the Payment Account funds sufficient to make such payment, (ii) the redemption price, including all accrued and unpaid Distributions to the date of redemption (the "Redemption Price"), with respect to the Preferred Securities called for redemption by the Issuer but if and only to the extent that the Property Trustee has available in the Payment Account funds sufficient to make such payment, (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Issuer (other than in connection with a redemption of all of the Preferred Securities), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid Distributions on the Preferred Securities to the date of payment, to the extent the Issuer has funds legally available therefor, and (b) the amount of assets of the Issuer remaining available for distribution to Holders in liquidation of the Issuer (in either case, the "Liquidation Distribution"). -2- 7 "Holder" shall mean any holder, as registered on the books and records of the Issuer, of any Preferred Securities; provided, however, that in determining whether the holders of the requisite percentage of Preferred Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor or any Affiliate of the Guarantor. "Indenture" means the Indenture dated as of [__________], 1995, among the Guarantor (the "Debenture Issuer") and The Bank of New York, as trustee. "Majority in liquidation amount of the Securities" means, except as provided by the Trust Indenture Act, a vote by Holder(s) of Preferred Securities, voting separately as a class, of more than 50% of the liquidation amount of all Preferred Securities. "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the Comptroller, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee Agreement shall include: (a) a statement that each officer signing the Officers' Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer upon which the statements or opinions of such officer contained in such Officers' Certificate are based; (c) a statement that, in each such officer's opinion, such officer has made such examination or investigation as is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with. "Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof. "Responsible Officer" means, with respect to the Trustee, any vice-president, any assistant vice-president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, any trust officer or assistant trust officer or any other officer of the Corporate Trust Department of the Trustee customarily performing functions similar to those performed by -3- 8 any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject. "Successor Trustee" means a successor Trustee possessing the qualifications to act as Trustee under Section 4.01. "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trustee" means The Bank of New York until a Successor Trustee has been appointed and has accepted such appointment pursuant to the terms of this Guarantee Agreement and thereafter means each such Successor Trustee. SECTION 1.02. Interpretation. In this Guarantee Agreement, unless the context otherwise requires: (a) Capitalized terms used in this Guarantee Agreement but not defined in the preamble hereto have the respective meanings assigned to them in Section 1.01; (b) a term defined anywhere in this Guarantee Agreement has the same meaning throughout; (c) all references to "the Guarantee Agreement" or "this Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented or amended from time to time; (d) all references in this Guarantee Agreement to Articles and Sections are to Articles and Sections of this Guarantee Agreement unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee Agreement unless otherwise defined in this Guarantee Agreement or unless the context otherwise requires; (f) a reference to the singular includes the plural and vice versa; and (g) the masculine, feminine or neuter genders used herein shall include the masculine, feminine and neuter genders. -4- 9 ARTICLE II. TRUST INDENTURE ACT SECTION 2.01. Trust Indenture Act; Application. (a) This Guarantee Agreement is subject to the provisions of the Trust Indenture Act that are required or deemed to be part of this Guarantee Agreement and shall, to the extent applicable, be governed by such provisions; and (b) if and to the extent that any provision of this Guarantee Agreement limits, qualifies or conflicts with the duties imposed by Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. SECTION 2.02. Lists of Holders of Securities. (a) The Guarantor shall furnish or cause to be furnished to the Trustee (a) semiannually, not later than [February 15 and August 15] in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of the Preferred Securities ("List of Holders") as of a date not more than 15 days prior to the delivery thereof, and (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a List of Holders as of a date not more than 15 days prior to the time such list is furnished; provided that, the Guarantor shall not be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Trustee by the Guarantor. The Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Trustee shall comply with its obligations under Section 311(a) of the Trust Indenture Act, subject to the provisions of 311(b) of the Trust Indenture Act, and Section 312(b) of the Trust Indenture Act. SECTION 2.03. Reports by the Trustee. Within 60 days after July 31 of each year, commencing with July 31, 1996, the Trustee shall provide to the Holders of the Preferred Securities such reports, if any, as are required by Section 313(a) of the Trust Indenture Act in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Trustee shall also comply with the requirements of Section 313(b), (c) and (d) of the Trust Indenture Act. SECTION 2.04. Periodic Reports to Trustee. The Guarantor shall provide to the Trustee such documents, reports and information as required by Section 314 (if any) and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. -5- 10 SECTION 2.05. Evidence of Compliance with Conditions Precedent. The Guarantor shall provide to the Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Guarantee Agreement (including any covenants compliance with which constitutes a condition precedent) that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. SECTION 2.06. Events of Default; Waiver. The Holders of a Majority in liquidation amount of Preferred Securities may, by vote, on behalf of the Holders of all of the Preferred Securities, waive any past Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. SECTION 2.07. Event of Default; Notice. (a) The Trustee shall, within 90 days after the occurrence of an Event of Default, transmit by mail, first class postage prepaid, to the Holders of the Preferred Securities, notices of all Events of Default known to the Trustee, unless such defaults have been cured before the giving of such notice, provided that, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Preferred Securities. (b) The Trustee shall not be deemed to have knowledge of any Event of Default unless the Trustee shall have received written notice, or a Responsible Officer charged with the administration of the Trust Agreement shall have obtained written notice, of such Event of Default. SECTION 2.08. Conflicting Interests. The Trust Agreement and the Indenture shall be deemed to be specifically described in this Guarantee Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. -6- 11 ARTICLE III. POWERS, DUTIES AND RIGHTS OF TRUSTEE SECTION 3.01. Powers and Duties of the Trustee. (a) This Guarantee Agreement shall be held by the Trustee for the benefit of the Holders from time to time of the Preferred Securities, and the Trustee shall not transfer this Guarantee Agreement to any Person except a Holder of Preferred Securities exercising his or her rights pursuant to Section 5.04(d) or to a Successor Trustee on acceptance by such Successor Trustee of its appointment to act as Successor Trustee. The right, title and interest of the Trustee shall automatically vest in any Successor Trustee, and such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Trustee. (b) If an Event of Default has occurred and is continuing, the Trustee shall enforce this Guarantee Agreement for the benefit of the Holders of the Preferred Securities. (c) The Trustee, prior to the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Guarantee Agreement, and no implied covenants or obligations shall be read into this Guarantee Agreement against the Trustee. In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.06), the Trustee shall exercise such of the rights and powers vested in it by this Guarantee Agreement, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (d) No provision of this Guarantee Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Events of Default that may have occurred: (A) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Guarantee Agreement, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee Agreement; and (B) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as -7- 12 the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Guarantee Agreement; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee Agreement; (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; (iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a Majority in liquidation amount of the Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Guarantee Agreement; and (iv) no provision of this Guarantee Agreement shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Guarantee Agreement or adequate indemnity against such risk or liability is not reasonably assured to it. SECTION 3.02. Certain Rights of Trustee. (a) Subject to the provisions of Section 3.01: (i) the Trustee may rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the Guarantor contemplated by this Guarantee Agreement shall be sufficiently evidenced by an Officers' Certificate; -8- 13 (iii) whenever, in the administration of this Guarantee Agreement, the Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Guarantor; (iv) the Trustee may consult with counsel of its choice, and the written advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion; such counsel may be counsel to the Guarantor or any of its Affiliates and may include any of its employees; the Trustee shall have the right at any time to seek instructions concerning the administration of this Guarantee Agreement from any court of competent jurisdiction; (v) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee Agreement at the request or direction of any Holder, unless such Holder shall have provided to the Trustee such adequate security and indemnity as would satisfy a reasonable person in the position of the Trustee, against the costs, expenses (including attorneys' fees and expenses) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Trustee; (vi) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit; (vii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (viii) whenever in the administration of this Guarantee Agreement the Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Trustee (A) may request instructions from the Holders of the Preferred Securities, (B) may refrain from enforcing such remedy or -9- 14 right or taking such other action until such instructions are received, and (C) shall be protected in acting in accordance with such instructions; and (ix) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Guarantee; (b) No provision of this Guarantee Agreement shall be deemed to impose any duty or obligation on the Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Trustee shall be construed to be a duty. ARTICLE IV. TRUSTEE SECTION 4.01. Trustee; Eligibility. (a) There shall at all times be a Trustee which shall: (i) not be an Affiliate of the Guarantor; and (ii) be a corporation organized and doing business under the laws of the United States of America or any State or Territory thereof or of the District of Columbia, or a corporation or Person permitted by the Securities and Exchange Commission to act as an institutional trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), its Corporate Trust Office in New York, New York, and subject to supervision or examination by Federal, State, Territorial or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then, for the purposes of this Section 4.01(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. (b) If at any time the Trustee shall cease to be eligible to so act under Section 4.01(a), the Trustee shall immediately resign in the manner and with the effect set out in Section 4.03(c). -10- 15 (c) If the Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. SECTION 4.02. Compensation and Reimbursement. The Guarantor agrees: (a) to pay the Trustee from time to time such reasonable compensation as the Guarantor and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with the provisions of this Guarantee (including the reasonable compensation and expenses of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (c) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it harmless from and against, any and all loss, damage, claim, liability or expense, including taxes (other than taxes based upon the income of the Trustee) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance of the administration of this trust, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any its powers or duties hereunder. As security for the performance of the obligations of the Guarantor under this Section, the Trustee shall have a lien prior to the Securities upon all the property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, and premium (if any) or interest on, particular Securities. The provisions of this Section shall survive the termination of this Indenture. SECTION 4.03. Appointment, Removal and Resignation of Trustee. (a) Subject to Section 4.03(b), the Trustee may be appointed or removed without cause at any time by the Guarantor. (b) The Trustee shall not be removed until a Successor Trustee has been appointed and has accepted such appointment by -11- 16 written instrument executed by such Successor Trustee and delivered to the Guarantor. (c) The Trustee appointed to office shall hold office until a Successor Trustee shall have been appointed or until its removal or resignation. The Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing executed by the Trustee and delivered to the Guarantor, which resignation shall not take effect until a Successor Trustee has been appointed and has accepted such appointment by instrument in writing executed by such Successor Trustee and delivered to the Guarantor and the resigning Trustee. (d) If no Successor Trustee shall have been appointed and accepted appointment as provided in this Section 4.03 within 60 days after delivery to the Guarantor of an instrument of resignation, the resigning Trustee may petition any court of competent jurisdiction for appointment of a Successor Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Trustee. (e) The Guarantor shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders in the manner provided in Section 8.03 hereof. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. ARTICLE V. GUARANTEE SECTION 5.01. Guarantee. The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by the Issuer), as and when due, regardless of any defense (other than the defense of payment), right of set-off or counterclaim which the Issuer may have or assert. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer to pay such amounts to the Holders. SECTION 5.02. Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. SECTION 5.03. Obligations Not Affected. The obligation of the Guarantor to make the Guarantee Payments under this Guarantee Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer of any -12- 17 express or implied agreement, covenant, term or condition relating to the Preferred Securities to be performed or observed by the Issuer; (b) the extension of time for the payment by the Issuer of all or any portion of the Distributions, Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Preferred Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Preferred Securities (other than an extension of time for payment of Distributions, Redemption Price, Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Debentures permitted by the Indenture); (c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Preferred Securities, or any action on the part of the Issuer granting indulgence or extension of any kind; (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Issuer or any of the assets of the Issuer; (e) any invalidity of, or defect or deficiency in, the Preferred Securities; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 5.03 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation of the Holders to give notice to, or obtain consent of, the Guarantor with respect to the happening of any of the foregoing. SECTION 5.04. Rights of Holders. The Guarantor expressly acknowledges that: (a) this Guarantee Agreement will be deposited with the Trustee to be held for the benefit of the Holders of the Preferred Securities; (b) the Trustee has the right to enforce this Guarantee Agreement on behalf of the Holders of the Preferred Securities; (c) the Holders of a Majority in liquidation amount of the Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee in respect of -13- 18 this Guarantee Agreement or exercising any trust or power conferred upon the Trustee under this Guarantee Agreement; and (d) if the Trustee fails to enforce this Guarantee Agreement as above provided, any Holder of the Preferred Securities may institute a legal proceeding directly against the Guarantor to enforce the Trustee's rights under this Guarantee Agreement, without first instituting a legal proceeding against the Issuer, the Trustee or any other person or entity. SECTION 5.05. Guarantee of Payment. This Guarantee Agreement creates a guarantee of payment and not of collection. This Guarantee Agreement will not be discharged except by payment of the Guarantee Payments in full (without duplication). SECTION 5.06. Subrogation. The Guarantor shall be subrogated to all (if any) rights of the Holders of Preferred Securities against the Issuer in respect of any amounts paid to the Holders by the Guarantor under this Guarantee Agreement; provided, however, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any rights which it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee Agreement, if, at the time of any such payment, any amounts of Guarantee Payments are due and unpaid under this Guarantee Agreement. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders. SECTION 5.07. Independent Obligations. The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer with respect to the Preferred Securities and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof. ARTICLE VI. SUBORDINATION SECTION 6.01. Subordination. This Guarantee Agreement will constitute an unsecured obligation of the Guarantor and will rank (a) subordinate and junior in right of payment to all other liabilities of the Guarantor, including the Debentures, except those made pari passu or subordinate by their terms, (b) pari passu with the most senior preferred or preference stock now or hereafter issued by the Guarantor and with any guarantee now or hereafter entered into by the Guarantor in respect of any preferred or preference stock of any Affiliate of the Guarantor, and (c) senior to all common stock of the Guarantor. -14- 19 ARTICLE VII. TERMINATION SECTION 7.01. Termination. This Guarantee Agreement shall terminate and be of no further force and effect upon: (a) full payment of the Redemption Price of all Preferred Securities, (b) the distribution of Debentures to Holders of Preferred Securities in exchange for all of the Preferred Securities or (c) upon full payment of the amounts payable in accordance with the Trust Agreement upon liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee Agreement will continue to be effective or will be reinstated, as the case may be, if at any time any Holder must restore payment of any sums paid with respect to Preferred Securities or under this Guarantee Agreement. ARTICLE VIII. MISCELLANEOUS SECTION 8.01. Successors and Assigns. All guarantees and agreements contained in this Guarantee Agreement shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Preferred Securities then outstanding. Except in connection with a consolidation, merger or sale involving the Guarantor that is permitted under Article VIII of the Indenture, the Guarantor shall not assign its obligations hereunder. SECTION 8.02. Amendments. Except with respect to any changes which do not adversely affect the rights of Holders (in which case no consent of Holders will be required), this Guarantee Agreement may only be amended with the prior approval of the Holders of not less than 66 2/3% in liquidation amount of all the outstanding Preferred Securities. The provisions of Article VI of the Trust Agreement concerning meetings of Holders shall apply to the giving of such approval. SECTION 8.03. Notices. Any notice, request or other communication required or permitted to be given hereunder shall be in writing, duly signed by the party giving such notice, and delivered, telecopied or mailed by first class mail as follows: (a) if given to the Guarantor, to the address set forth below or such other address as the Guarantor may give notice of to the Holders of the Preferred Securities: -15- 20 Ohio Edison Company 76 South Main Street Akron, Ohio Attention: Treasurer Facsimile no. (216) 384-3772. (b) if given to the Issuer, in care of the Trustee, at the Issuer's (and the Trustee's) address set forth below or such other address as the Trustee on behalf of the Issuer may give notice to the Holders of the Preferred Securities: Ohio Edison Financing Trust c/o The Bank of New York 101 Barclay Street, Floor 21 West New York, NY 10286 Facsimile No.: (212) 815-5915. Attention: Corporate Trust Department with copy to: The Bank of New York 101 Barclay Street, Floor 21 West New York, New York 10286 Facsimile No: (212) 815-5915. Attention: Corporate Trust Department (c) if given to any Holder of Preferred Securities, at the address set forth on the books and records of the Issuer. All notices hereunder shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. SECTION 8.04. Benefit. This Guarantee Agreement is solely for the benefit of the Holders of the Preferred Securities and, subject to Section 3.01(a), is not separately transferable from the Preferred Securities. SECTION 8.05. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. -16- 21 This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. THIS GUARANTEE AGREEMENT is executed as of the day and year first above written. OHIO EDISON COMPANY By:___________________________ Name: Title: THE BANK OF NEW YORK, as Trustee By:___________________________ Name: Title: -17- EX-5.1 8 EXHIBIT 5.1 1 EXHIBIT 5.1 [Letterhead of Richards, Layton & Finger] August 10, 1995 Ohio Edison Financing Trust c/o Ohio Edison Company 76 South Main Street Akron, Ohio Attention: Treasurer Re: Ohio Edison Company Ladies and Gentlemen: We have acted as special Delaware counsel for Ohio Edison Company, an Ohio corporation ("Ohio Edison"), and Ohio Edison Financing Trust, a Delaware business trust (the "Trust"), in connection with the matters set forth herein. At your request, this opinion is being furnished to you. For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of originals or copies of the following: (a) The Certificate of Trust of the Trust, dated August 8, 1995 (the "Certificate"), as filed in the office of the Secretary of State of the State of Delaware (the "Secretary of State") on August 8, 1995; (b) The Trust Agreement of the Trust, dated as of August 8, 1995, between Ohio Edison and the trustees of the Trust named therein; (c) The preliminary prospectus, dated August 10, 1995 (the "Prospectus"), relating to the __% Trust Preferred Capital Securities, Series A of the Trust representing preferred undivided beneficial interests in the assets of the Trust (each, a "Preferred Security" and collectively, the "Preferred Securities"); 2 (d) The Registration Statement (the "Registration Statement") on Form S-3, including a form of Amended and Restated Trust Agreement of the Trust, to be entered into among Ohio Edison, the trustees of the Trust named therein and the holders, from time to time, of the undivided beneficial interests in the assets of the Trust (the "Trust Agreement"), as proposed to be filed by Ohio Edison and the Trust with the Securities and Exchange Commission on or about August 10, 1995; and (e) A Certificate of Good Standing for the Trust, dated August 10, 1995, obtained from the Secretary of State. Initially capitalized terms used herein and not otherwise defined are used as defined in the Trust Agreement. For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (e) above. In particular, we have not reviewed any document (other than the documents listed in paragraphs (a) through (e) above) that is referred to in or incorporated by reference into the documents reviewed by us. We have assumed that there exists no provision in any document that we have not reviewed that is inconsistent with the opinions stated herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects. With respect to all documents examined by us, we have assumed (i) the authenticity of all documents submitted to us as authentic originals, (ii) the conformity with the originals of all documents submitted to us as copies or forms, and (iii) the genuineness of all signatures. For purposes of this opinion, we have assumed (i) the Trust Agreement and the Certificate are in full force and effect and have not been amended, (ii) except to the extent provided in paragraph 1 below, the due organization or due formation, as the case may be, and valid existence in good standing of each party to the documents examined by us under the laws of the jurisdiction governing its organization or formation, (iii) the legal capacity of natural persons who are parties to the documents examined by us, (iv) the power and authority of each of the parties to the documents examined by us to execute and deliver, and to perform its obligations under, such documents, (v) the due authorization, execution and delivery by all parties thereto of all documents examined by us, (vi) the receipt by each Person to whom a Preferred Security is to be issued by the Trust (collectively, the "Preferred Security Holders") of a Preferred Securities Certificate for such Preferred Security and the payment for the Preferred Security acquired by it, in accordance with the Trust Agreement, the Registration Statement and the Prospectus, and (vii) the issuance and sale of the Preferred -2- 3 Securities to the Preferred Security Holders in accordance with the Trust Agreement, the Registration Statement and the Prospectus. We have not participated in the preparation of the Registration Statement or the Prospectus and assume no responsibility for their contents. This opinion is limited to the laws of the State of Delaware (excluding the securities laws of the State of Delaware), and we have not considered and express no opinion on the laws of any other jurisdiction, including federal laws and rules and regulations relating thereto. Our opinions are rendered only with respect to Delaware laws and rules, regulations and orders thereunder which are currently in effect. Based upon the foregoing, and upon our examination of such questions of law and statutes of the State of Delaware as we have considered necessary or appropriate, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that: 1. The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Business Trust Act, 12 Del. C. Section 3801, et seq. 2. The Preferred Securities will represent valid and, subject to the qualifications set forth in paragraph 3 below, fully paid and nonassessable undivided beneficial interests in the assets of the Trust. 3. The Preferred Security Holders, as beneficial owners of the Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. We note that the Preferred Security Holders may be obligated, pursuant to the Trust Agreement, to (i) provide indemnity and/or security in connection with and pay taxes or governmental charges arising from transfers or exchanges of Preferred Securities Certificates and the issuance of replacement Preferred Securities Certificates and (ii) provide security or indemnity in connection with requests of or directions to the Property Trustee to exercise its rights and powers under the Trust Agreement. We consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. We hereby consent to the use of our name under the heading "Validity of the Securities" in the Prospectus. In giving the foregoing consents, we do not thereby admit that we come within the category of Persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Except as stated above, without our prior written consent, this opinion may not be furnished or quoted to, or relied upon by, any other Person for any purpose. -3- 4 Very truly yours, Richards, Layton & Finger CDK/WAY/db -4- EX-5.2 9 EXHIBIT 5.2 1 Exhibit 5.2 August 10, 1995 Ohio Edison Company 76 South Main Street Akron, Ohio 44308 and Ohio Edison Financing Trust 76 South Main Street Akron, Ohio 44308 Re: Registration Statement on Form S-3 Dear Ladies and Gentlemen: I am Senior Vice President and General Counsel for Ohio Edison Company, an Ohio corporation (the "Company"). In connection with the preparation and filing with the Securities Exchange Commission (the "Commission") of the registration statement on Form S-3 (the "Registration Statement") to register under the Securities Act of 1933, as amended (the "Act"), up to $118,556,702 aggregate principal amount of the Company's junior subordinated debentures (the "Subordinated Debentures") to be issued under the indenture (the "Indenture") to be entered into between the Company and The Bank of New York, as Trustee, up to $115,000,000 aggregate liquidation amount of preferred securities (the "Preferred Securities") to be issued by Ohio Edison Financing Trust, a Delaware statutory business trust sponsored by the Company (the "Trust") and created by a trust agreement dated as of the date hereof (the "Original Trust Agreement") which is to be amended and restated by an amended and restated trust agreement (together with the Original Trust Agreement, the "Trust Agreement") providing for the issuance and sale of the Preferred Securities, and the related guarantee to be delivered concurrently therewith by Ohio Edison and The Bank of New York, as Trustee under the guarantee (the "Guarantee"), I have examined (i) the Registration Statement and exhibits thereto, including the prospectus comprising a part thereof (the "Prospectus"); (ii) the Company's Articles of Incorporation and Code of Regulations, both as amended; (iii) documents issued by public officials as to the 2 -2- August 10, 1995 existence of the Company and the Trust under the laws of the States of Ohio and Delaware; (iv) the Indenture, in substantially the form filed as Exhibit 4.3 to the Registration Statement; (v) the Guarantee, in substantially the form filed as Exhibit 4.6 to the Registration Statement; (vi) a certificate of trust of the Trust, as filed with the Secretary of State of the State of Delaware (the "Certificate"); (vii) the Trust Agreement, in substantially the form filed as Exhibits 4.2 and 4.3 to the Registration Statement; and (viii) such other documents and records of the Company and the Trust, and such matters of law, as I considered to be necessary to enable me to render this opinion. For purposes of this opinion, I have assumed (i) the Trust Agreement and the Certificate are in full force and effect and have not been amended, (ii) the due organization or due formation, as the case may be, and valid existence in good standing of each party to the documents examined by me under the laws of the jurisdiction governing its organization or formation, (iii) the legal capacity of natural persons who are parties to the documents examined by me, (iv) the power and authority of each of the parties to the documents examined by me to execute and deliver, and to perform its obligation under, such documents, (v) the due authorization, execution and delivery by all parties thereto of all documents examined by me, (vi) the receipt by each person to whom a Preferred Security is to be issued by the Trust (collectively, the "Preferred Security Holders") of a Preferred Securities Certificate for such Preferred Security and the payment for the Preferred Security acquired by it, in accordance with the Trust Agreement, the Registration Statement and the Prospectus, and (vii) the issuance and sale of the Preferred Securities to the Preferred Security Holders in accordance with the Trust Agreement, the Registration Statement and the Prospectus. I have not participated in the preparation of the Registration Statement or the Prospectus and assume no responsibility for their contents. Based on the foregoing, I am of the opinion that: 1. The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Ohio. 2. Subject to final approval by the Board of Directors of the Company (or by the committee or person to whom the Board delegates the authority to grant such final approval) of (i) the terms of the Subordinated Debentures and the Guarantee, as well as the final terms of the Trust Agreement and (ii) the terms of sale of the Preferred 3 -3- August 10, 1995 Securities and the Subordinated Debentures, the Company has duly and validly authorized the issuance of the Subordinated Debentures, and the execution and delivery of the Indenture and the Guarantee. 3. Subject to clauses (i) and (ii) of paragraph 2 above, the Subordinated Debentures, when issued, sold and delivered as contemplated in the Registration Statement and the Prospectus and in accordance with the authorization thereof by the Board of Directors of the Company (or by the committee or person to whom the Board delegates such authority) and executed and authenticated in accordance with the Indenture, will be valid, legal and binding obligations of the Company, enforceable in accordance with their terms against the Company, except as may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). 4. Subject to clauses (i) and (ii) of paragraph 2 above, the Guarantee will be a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), provided (i) the Preferred Securities have been issued in accordance with the terms and provisions of the Trust Agreement and (ii) the Preferred Securities and the Guarantee have each been issued and delivered as contemplated in the Registration Statement and the Prospectus. Paragraphs 3 and 4 of this opinion are subject to the Registration Statement's becoming effective with no stop order with respect thereto having been issued by the Commission, and to the order which has been issued by The Public Utilities Commission of Ohio remaining in effect, authorizing the issuance of the Preferred Securities, the Subordinated Debentures and the Guarantee on the terms contemplated in the Registration Statement and the Prospectus. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my 4 -4- August 10, 1995 name under the caption "Validity of the Securities" in the Prospectus. In rendering this opinion, I have relied as to all matters governed by the laws of the State of Delaware upon the opinion of Richards, Layton & Finger, P.A., special Delaware counsel for the Company and the Trust, which is being filed as an exhibit to the Registration Statement. Very truly yours, Anthony J. Alexander Senior Vice President & General Counsel of Ohio Edison Company EX-8.1 10 EXHIBIT 8.1 1 EXHIBIT 8.1 August 10, 1995 Ohio Edison Company 76 South Main Street Akron, Ohio 44308 Ohio Edison Financing Trust c/o Ohio Edison Company 76 South Main Street Akron, Ohio 44308 Re: Ohio Edison Financing Trust ___% Trust Preferred Capital Securities Ladies and Gentlemen: As counsel to Ohio Edison Company (the "Company") and Ohio Edison Financing Trust (the "Issuer"), we have assisted in the preparation of the prospectus (the "Prospectus") that forms a part of the registration statement on Form S-3 (File No. 33-_________) under the Securities Act of 1933 (the "Act"), as filed with the Securities and Exchange Commission on the date hereof (the "Registration Statement"), covering the issuance of up to $115,000,000 aggregate liquidation amount of ___% Trust Preferred Capital Securities, Series A, by the Issuer, and the issuance of up to $118,556,702 aggregate principal amount of ___% Junior Subordinated Debentures, Series A, Due 2025, by the Company to the Issuer. Unless otherwise defined herein, all terms used herein shall have the meanings ascribed to them in the Prospectus. We have examined and relied upon the Registration Statement and, in each case as filed as an exhibit to the Registration Statement, (i) the form of Amended and Restated Trust Agreement among the Company, as Depositor, and the several trustees named therein, (ii) the form of Indenture between the Company and The Bank of New York, as Trustee, and (iii) the form of Guarantee Agreement between the Company, as Guarantor, and The Bank of New York, as Trustee. 2 Based on the foregoing and on our consideration of such other information as we have deemed necessary and appropriate, we hereby confirm, subject to the qualifications contained therein, our opinion as set forth in the Prospectus under the caption "United States Taxation." We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the heading "United States Taxation" in the Prospectus. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act. Very truly yours, Winthrop, Stimson, Putnam & Roberts EX-12.1 11 EXHIBIT 12.1 1 EXHIBIT 12.1 OHIO EDISON COMPANY CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
Twelve Months Year Ended December 31, Ended --------------------------------------------------- June 30, 1990 1991 1992 1993 1994 1995 -------- -------- -------- -------- -------- -------- (Dollars in Thousands) (Unaudited) EARNINGS AS DEFINED IN REGULATION S-K: Income before extraordinary items . . . . . . . . . . . . . $281,676 $264,823 $276,986 $ 24,523 $303,531 $310,208 Interest and other charges, before reduction for amounts capitalized . . . . . . . . . . . . . . . . . . . . . . . . 329,520 324,017 296,292 285,169 283,849 280,685 Provision for income taxes . . . . . . . . . . . . . . . . . 170,804 173,725 147,407 32,431 188,886 192,288 Interest element of rentals charged to income (a) . . . . . 126,804 125,777 117,224 104,700 108,463 109,590 -------- -------- -------- -------- -------- -------- Earnings as defined . . . . . . . . . . . . . . . . $908,804 $888,342 $837,909 $446,823 $884,729 $892,771 ======== ======== ======== ======== ======== ======== FIXED CHARGES AS DEFINED IN REGULATION S-K: Interest on long-term debt . . . . . . . . . . . . . . . . . $293,993 $288,599 $275,835 $262,861 $259,554 $253,161 Other interest expense . . . . . . . . . . . . . . . . . . . 25,545 27,696 13,958 16,445 18,931 22,736 Subsidiary's preferred stock dividend requirements . . . . . 9,982 7,722 6,499 5,863 5,364 4,788 Adjustment to subsidiary's preferred stock dividends to state on a pre-income tax basis . . . . . . . . . . . . . . 6,009 5,018 3,420 7,659 3,294 2,925 Interest element of rentals charged to income (a) . . . . . 126,804 125,777 117,224 104,700 108,463 109,590 -------- -------- -------- -------- -------- -------- Fixed charges as defined . . . . . . . . . . . . . . $462,333 $454,812 $416,936 $397,528 $395,606 $393,200 ======== ======== ======== ======== ======== ======== CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES (b) . . . . . 1.97 1.95 2.01 1.12 2.24 2.27 ==== ==== ==== ==== ==== ====
_______________________________ (a) Includes the interest element of rentals where determinable plus 1/3 of rental expense where no readily defined interest element can be determined. (b) These ratios exclude fixed charges applicable to the guarantee of the debt of a coal supplier aggregating $16,922,000, $13,298,000, $9,762,000, $8,565,000, $7,424,000 and $6,874,000 for each of the five years ended December 31, 1994, and the twelve months ended June 30, 1995, respectively. EX-12.2 12 EXHIBIT 12.2 1 EXHIBIT 12.2 OHIO EDISON COMPANY CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES PLUS PREFERRED AND PREFERENCE STOCK DIVIDEND REQUIREMENTS (PRE-INCOME TAX BASIS)
Twelve Year Ended December 31, Months Ended --------------------------------------------------- June 30, 1990 1991 1992 1993 1994 1995 -------- -------- -------- -------- -------- -------- (Dollars in Thousands) (Unaudited) EARNINGS AS DEFINED IN REGULATION S-K: Income before extraordinary items . . . . . . . . . . $281,676 $264,823 $276,986 $ 24,523 $303,531 $310,208 Interest and other charges, before reduction for amounts capitalized . . . . . . . . . . . . . . . 329,520 324,017 296,292 285,169 283,849 280,685 Provision for income taxes . . . . . . . . . . . . . . 170,804 173,725 147,407 32,431 188,886 192,288 Interest element of rentals charged to income (a) . . . . . . . . . . . . . . . . . . . . . 126,804 125,777 117,224 104,700 108,463 109,590 -------- -------- -------- -------- -------- -------- Earnings as defined . . . . . . . . . . . . . $908,804 $888,342 $837,909 $446,823 $884,729 $892,771 ======== ======== ======== ======== ======== ======== FIXED CHARGES AS DEFINED IN REGULATION S-K PLUS PREFERRED AND PREFERENCE STOCK DIVIDEND REQUIREMENTS (PRE-INCOME TAX BASIS): Interest on long-term debt . . . . . . . . . . . . . . $293,993 $288,599 $275,835 $262,861 $259,554 $253,161 Other interest expense . . . . . . . . . . . . . . . . 25,545 27,696 13,958 16,445 18,931 22,736 Preferred and preference stock dividend requirements . . . . . . . . . . . . . . . . . . . . . 37,610 32,476 30,425 29,570 27,043 26,403 Adjustment to preferred and preference stock dividends to state on a pre-income tax basis . . . . . 22,421 20,887 15,854 38,265 16,444 15,984 Interest element of rentals charged to income (a) . . 126,804 125,777 117,224 104,700 108,463 109,590 -------- -------- -------- -------- -------- -------- Fixed charges as defined plus preferred and preference stock dividend requirements (pre-income tax basis) . . . . . . . . . . . . $506,373 $495,435 $453,296 $451,841 $430,435 $427,874 ======== ======== ======== ======== ======== ======== CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES PLUS PREFERRED AND PREFERENCE STOCK DIVIDEND REQUIREMENTS (PRE-INCOME TAX BASIS) (b) . . . . . . . . . . . . . . . . . 1.79 1.79 1.85 0.99(c) 2.06 2.09 ==== ==== ==== ==== ==== ====
_______________________________ (a) Includes the interest element of rentals where determinable plus 1/3 of rental expense where no readily defined interest element can be determined. (b) These ratios exclude fixed charges applicable to the guarantee of the debt of a coal supplier aggregating $16,922,000, $13,298,000, $9,762,000, $8,565,000, $7,424,000 and $6,874,000 for each of the five years ended December 31, 1994, and the twelve months ended June 30, 1995, respectively. (c) Earnings were deficient in 1993 by $5,018,000 to cover fixed charges plus preferred stock dividend requirements. EX-15.1 13 EXHIBIT 15.1 1 EXHIBIT 15.1 August 9, 1995 Ohio Edison Company and Ohio Edison Financing Trust: We are aware that Ohio Edison Company and Ohio Edison Financing Trust have incorporated by reference in this Registration Statement Ohio Edison Company's Form 10-Q for the quarters ended March 31, 1995 and June 30, 1995, which include our reports dated May 4, 1995 and August 2, 1995, respectively, covering the unaudited interim financial information contained therein. Pursuant to Regulation C of the Securities Act of 1933, that report is not considered a part of the registration statement prepared or certified by our firm or a report prepared or certified by our firm within the meaning of Sections 7 and 11 of the Act. Very truly yours, ARTHUR ANDERSEN LLP EX-23.1 14 EXHIBIT 23.1 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated February 3, 1995, included or incorporated by reference in Ohio Edison Company's Annual Report on Form 10-K for the year ended December 31, 1994, and to all references to our Firm included in this registration statement. ARTHUR ANDERSEN LLP Cleveland, Ohio August 9, 1995 EX-24.1 15 EXHIBIT 24.1 1 EXHIBIT 24.1 August 10, 1995 POWER OF ATTORNEY H. P. Burg N. C. Brink c/o Ohio Edison Company 76 South Main Street Akron, Ohio 44308 J. H. Byington M. F. Cusick c/o Winthrop, Stimson, Putnam & Roberts One Battery Park Plaza New York, New York 10004 Dear Sirs: Ohio Edison Company (the "Company") and Ohio Edison Financing Trust (the "Issuer") propose to file with the Securities and Exchange Commission a registration statement or registration statements on Form S-3 under the Securities Act of 1933 with respect to the issuance of up to $115,000,000 aggregate liquidation amount of ___% Trust Preferred Capital Securities, Series A, by the Issuer, and the issuance of up to $118,556,702 aggregate principal amount of ___% Junior Subordinated Debentures, Series A, Due 2025, by the Company to the Issuer. The undersigned directors and officers of said Company, individually as a director and/or as an officer of said Company, hereby make, constitute and appoint each of you the true and lawful attorney for each of the undersigned, and in each of the names, places and steads of the undersigned, and hereby authorize 2 you or any one of you to execute, as such attorney-in-fact for each of the undersigned directors and officers, and cause to be filed with said Commission, said registration statement and any appropriate amendment or amendments thereto, to be accompanied by a prospectus and any appropriately amended prospectus and by any necessary exhibits. Very truly yours, /s/ W. R. HOLLAND /s/ CAROL A. CARTWRIGHT _________________________ _________________________ W. R. HOLLAND CAROL A. CARTWRIGHT /s/ DONALD C. BLASIUS /s/ R. L. LOUGHHEAD _________________________ ________________________ DONALD C. BLASIUS R. L. LOUGHHEAD /s/ ROBERT H. CARLSON /s/ GLENN H. MEADOWS _________________________ ________________________ ROBERT H. CARLSON GLENN H. MEADOWS /s/ ROBERT M. CARTER /s/ PAUL J. POWERS _________________________ ________________________ ROBERT M. CARTER PAUL J. POWERS /s/ CHARLES W. RAINGER /s/ GEORGE M. SMART _________________________ ________________________ CHARLES W. RAINGER GEORGE M. SMART /s/ JESSE T. WILLIAMS, SR. /s/ H. P. BURG _________________________ _________________________ JESSE T. WILLIAMS, SR. H. P. BURG
-2- EX-25.1 16 EXHIBIT 25.1 1 EXHIBIT 25.1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _________________ FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________ _________________ THE BANK OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-5160382 (Jurisdiction of incorporation (I.R.S. Employer if not a U.S. national bank) Identification No.) 48 Wall Street, New York, New York 10286 (Address of principal executive offices) (Zip code)
_________________ OHIO EDISON FINANCING TRUST (Exact name of obligor as specified in its charter) Delaware To be Applied For (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 76 South Main Street Akron, Ohio 44308 (Address of principal executive offices) (Zip code)
_________________ [__]% Trust Preferred Capital Securities, Series A* (Title of the indenture securities) *Specific title to be determined in connection with sale of Trust Preferred Capital Securities 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006 State of New York and Albany, N.Y. 12203 Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045 Federal Deposit Insurance Corporation 550 17th Street, N.W., Washington, D.C. 20429 New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers. Yes. ITEM 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the trustee, describe each such affiliation. None. (See Note on page 2.)* ITEM 16. LIST OF EXHIBITS. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the Commission's Rules of Practice. 1. -A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.) 4. -A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.) 6. -The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.) 7. -A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. (Exhibit 7 to Form T-1 of The Bank of New York filed as Exhibit 25.1 to Registration Statement No. 33-59953.) __________________________________ *Pursuant to General Instruction B, the Trustee has responded only to Items 1, 2 and 16 of this form since to the best of the knowledge of the Trustee the obligor is not in default under any indenture under which the Trustee is a trustee. 3 NOTE Inasmuch as this Form T-1 is being filed prior to the ascertainment by the Trustee of all facts on which to base a responsive answer to Item 2, the answer to said Item is based on incomplete information. Item 2 may, however, be considered as correct unless amended by an amendment to this Form T-1. SIGNATURE Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 8th day of August, 1995. THE BANK OF NEW YORK By: LUCILLE FIRRINCIELI ---------------------------------- Lucille Firrincieli Assistant Vice President -3- EX-25.2 17 EXHIBIT 25.2 1 EXHIBIT 25.2 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _________________ FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________ _________________ THE BANK OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-5160382 (Jurisdiction of incorporation (I.R.S. Employer if not a U.S. national bank) Identification No.) 48 Wall Street, New York, New York 10286 (Address of principal executive offices) (Zip code)
_________________ OHIO EDISON COMPANY (Exact name of obligor as specified in its charter) Ohio 34-0437786 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 76 South Main Street Akron, Ohio 44308 (Address of principal executive offices) (Zip code)
_________________ Guarantee with respect to Ohio Edison Financing Trust [__]% Trust Preferred Capital Securities, Series A* (Title of the indenture securities) *Specific title to be determined in connection with sale of Trust Preferred Capital Securities 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006 State of New York and Albany, N.Y. 12203 Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045 Federal Deposit Insurance Corporation 550 17th Street, N.W., Washington, D.C. 20429 New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers. Yes. ITEM 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the trustee, describe each such affiliation. None. (See Note on page 2.)* ITEM 16. LIST OF EXHIBITS. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the Commission's Rules of Practice. 1. -A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.) 4. -A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33- 31019.) 6. -The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.) 7. -A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. (Exhibit 7 to Form T-1 of The Bank of New York filed as Exhibit 25.1 to Registration Statement No. 33-59953.) __________________________________ *Pursuant to General Instruction B, the Trustee has responded only to Items 1, 2 and 16 of this form since to the best of the knowledge of the Trustee the obligor is not in default under any indenture under which the Trustee is a trustee. 3 NOTE Inasmuch as this Form T-1 is being filed prior to the ascertainment by the Trustee of all facts on which to base a responsive answer to Item 2, the answer to said Item is based on incomplete information. Item 2 may, however, be considered as correct unless amended by an amendment to this Form T-1. SIGNATURE Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 8th day of August, 1995. THE BANK OF NEW YORK By: LUCILLE FIRRINCIELI ------------------------------- Lucille Firrincieli Assistant Vice President -3- EX-25.3 18 EXHIBIT 25.3 1 EXHIBIT 25.3 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _________________ FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________ _________________ THE BANK OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-5160382 (Jurisdiction of incorporation (I.R.S. Employer if not a U.S. national bank) Identification No.) 48 Wall Street, New York, New York 10286 (Address of principal executive offices) (Zip code)
_________________ OHIO EDISON COMPANY (Exact name of obligor as specified in its charter) Ohio 34-0437786 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 76 South Main Street Akron, Ohio 44308 (Address of principal executive offices) (Zip code)
_________________ [__]% Junior Subordinated Debentures, Series A, Due 2025* (Title of the indenture securities) *Specific title to be determined in connection with sale of Junior Subordinated Debentures 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006 State of New York and Albany, N.Y. 12203 Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045 Federal Deposit Insurance Corporation 550 17th Street, N.W., Washington, D.C. 20429 New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers. Yes. ITEM 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the trustee, describe each such affiliation. None. (See Note on page 2.)* ITEM 16. LIST OF EXHIBITS. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the Commission's Rules of Practice. 1. -A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.) 4. -A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33- 31019.) 6. -The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.) 7. -A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. (Exhibit 7 to Form T-1 of The Bank of New York filed as Exhibit 25.1 to Registration Statement No. 33-59953.) __________________________________ *Pursuant to General Instruction B, the Trustee has responded only to Items 1, 2 and 16 of this form since to the best of the knowledge of the Trustee the obligor is not in default under any indenture under which the Trustee is a trustee. 3 NOTE Inasmuch as this Form T-1 is being filed prior to the ascertainment by the Trustee of all facts on which to base a responsive answer to Item 2, the answer to said Item is based on incomplete information. Item 2 may, however, be considered as correct unless amended by an amendment to this Form T-1. SIGNATURE Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 8th day of August, 1995. THE BANK OF NEW YORK By: LUCILLE FIRRINCIELI ------------------------------- Lucille Firrincieli Assistant Vice President