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<PAGE>
EXHIBIT 4ai
ONE HUNDRED THIRD SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS,
2005-1 COLLATERAL SERIES (INTEREST BEARING)
--------------
DATED AS OF MAY 18, 2005
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CONSUMERS ENERGY COMPANY
TO
JPMORGAN CHASE BANK, N.A.
TRUSTEE
Counterpart ____ of 80
<PAGE>
THIS ONE HUNDRED THIRD SUPPLEMENTAL INDENTURE, dated as of May
18, 2005
(herein sometimes referred to as "this Supplemental Indenture"),
made and
entered into by and between CONSUMERS ENERGY COMPANY, a
corporation organized
and existing under the laws of the State of Michigan, with its
principal
executive office and place of business at One Energy Plaza,
Jackson, Jackson
County, Michigan 49201, formerly known as Consumers Power
Company (hereinafter
sometimes referred to as the "Company"), and JPMORGAN CHASE
BANK, N.A., a
national banking association organized under the laws of the
United States of
America, with its corporate trust offices at 4 New York Plaza,
New York, New
York 10004 (hereinafter sometimes referred to as the "Trustee"),
as Trustee
under the Indenture dated as of September 1, 1945 between
Consumers Power
Company, a Maine corporation (hereinafter sometimes referred to
as the "Maine
corporation"), and City Bank Farmers Trust Company (Citibank,
N.A., successor,
hereinafter sometimes referred to as the "Predecessor Trustee"),
securing bonds
issued and to be issued as provided therein (hereinafter
sometimes referred to
as the "Indenture"),
WHEREAS at the close of business on January 30, 1959, City Bank
Farmers
Trust Company was converted into a national banking association
under the title
"First National City Trust Company"; and
WHEREAS at the close of business on January 15, 1963, First
National
City Trust Company was merged into First National City Bank;
and
WHEREAS at the close of business on October 31, 1968, First
National
City Bank was merged into The City Bank of New York, National
Association, the
name of which was thereupon changed to First National City Bank;
and
WHEREAS effective March 1, 1976, the name of First National City
Bank
was changed to Citibank, N.A.; and
WHEREAS effective July 16, 1984, Manufacturers Hanover Trust
Company
succeeded Citibank, N.A. as Trustee under the Indenture; and
WHEREAS effective June 19, 1992, Chemical Bank succeeded by
merger to
Manufacturers Hanover Trust Company as Trustee under the
Indenture; and
WHEREAS effective July 15, 1996, The Chase Manhattan Bank
(National
Association), merged with and into Chemical Bank which
thereafter was renamed
The Chase Manhattan Bank; and
WHEREAS effective November 11, 2001, The Chase Manhattan Bank
merged
with Morgan Guaranty Trust Company of New York and the surviving
corporation was
renamed JPMorgan Chase Bank; and
WHEREAS effective November 13, 2004, JPMorgan Chase Bank
converted to a national banking association and changed its name
to JPMorgan
Chase Bank, N.A.; and
<PAGE>
WHEREAS the Indenture was executed and delivered for the purpose
of
securing such bonds as may from time to time be issued under and
in accordance
with the terms of the Indenture, the aggregate principal amount
of bonds to be
secured thereby being limited to $5,000,000,000 at any one time
outstanding
(except as provided in Section 2.01 of the Indenture), and the
Indenture
describes and sets forth the property conveyed thereby and is
filed in the
Office of the Secretary of State of the State of Michigan and is
of record in
the Office of the Register of Deeds of each county in the State
of Michigan in
which this Supplemental Indenture is to be recorded; and
WHEREAS the Indenture has been supplemented and amended by
various
indentures supplemental thereto, each of which is filed in the
Office of the
Secretary of State of the State of Michigan and is of record in
the Office of
the Register of Deeds of each county in the State of Michigan in
which this
Supplemental Indenture is to be recorded; and
WHEREAS the Company and the Maine corporation entered into an
Agreement
of Merger and Consolidation, dated as of February 14, 1968,
which provided for
the Maine corporation to merge into the Company; and
WHEREAS the effective date of such Agreement of Merger and
Consolidation was June 6, 1968, upon which date the Maine
corporation was merged
into the Company and the name of the Company was changed from
"Consumers Power
Company of Michigan" to "Consumers Power Company"; and
WHEREAS the Company and the Predecessor Trustee entered into
a
Sixteenth Supplemental Indenture, dated as of June 4, 1968,
which provided,
among other things, for the assumption of the Indenture by the
Company; and
WHEREAS said Sixteenth Supplemental Indenture became effective
on the
effective date of such Agreement of Merger and Consolidation;
and
WHEREAS the Company has succeeded to and has been substituted
for the
Maine corporation under the Indenture with the same effect as if
it had been
named therein as the mortgagor corporation; and
WHEREAS effective March 11, 1997, the name of Consumers Power
Company
was changed to Consumers Energy Company; and
WHEREAS, the Company has entered into a Third Amended and
Restated
Credit Agreement dated as of May 18, 2005 (as amended or
otherwise modified from
time to time, the "Credit Agreement") with various financial
institutions and
JPMorgan Chase Bank, N.A., as administrative agent (in such
capacity, the
"Agent") for the Banks (as such term is defined in the Credit
Agreement),
providing for the making of certain financial accommodations
thereunder, and
pursuant to such Credit Agreement the Company has agreed to
issue to the Agent,
as evidence of and security for the Obligations (as such term is
defined in the
Credit Agreement), a new series of bonds under the Indenture;
and
WHEREAS, for such purposes the Company desires to issue a new
series of
bonds, to be designated First Mortgage Bonds, 2005-1 Collateral
Series (Interest
Bearing), each of which
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<PAGE>
bonds shall also bear the descriptive title "First Mortgage
Bond" (hereinafter
provided for and hereinafter sometimes referred to as the
"2005-1 Collateral
Bonds"), the bonds of which series are to be issued as
registered bonds without
coupons and are to bear interest at the rate per annum specified
herein and are
to mature on the Termination Date (as such term is defined in
the Credit
Agreement); and
WHEREAS, each of the registered bonds without coupons of the
2005-1
Collateral Bonds and the Trustee's Authentication Certificate
thereon are to be
substantially in the following form, to wit:
[FORM OF REGISTERED BOND
OF THE 2005-1 COLLATERAL BONDS]
[FACE]
CONSUMERS ENERGY COMPANY
FIRST MORTGAGE BOND
2005-1 COLLATERAL SERIES (INTEREST BEARING)
No. ___ $500,000,000
CONSUMERS ENERGY COMPANY, a Michigan corporation (hereinafter
called
the "Company"), for value received, hereby promises to pay to
JPMorgan Chase
Bank, N.A., as administrative agent (in such capacity, the
"Agent") for the
Banks under and as defined in the Amended and Restated Credit
Agreement dated as
of May 18, 2005 among the Company, the Banks and the Agent (as
amended or
otherwise modified from time to time, the "Credit Agreement"),
or registered
assigns, the principal sum of Five Hundred Million Dollars
($500,000,000) or
such lesser principal amount as shall be equal to the aggregate
principal amount
of the Loans (as defined in the Credit Agreement) and
Reimbursement Obligations
(as defined in the Credit Agreement) included in the Obligations
(as defined in
the Credit Agreement) outstanding on the Termination Date (as
defined in the
Credit Agreement) (the "Maturity Date"), but not in excess,
however, of the
principal amount of this bond, and to pay interest thereon at
the Interest Rate
(as defined below) until the principal hereof is paid or duly
made available for
payment on the Maturity Date, or, in the event of redemption of
this bond, until
the redemption date, or, in the event of default in the payment
of the principal
hereof, until the Company's obligations with respect to the
payment of such
principal shall be discharged as provided in the Indenture (as
defined on the
reverse hereof). Interest on this bond shall be payable on each
Interest Payment
Date (as defined below), commencing on the first Interest
Payment Date next
succeeding May 18, 2005. If the Maturity Date falls on a day
which is not a
Business Day, as defined below, principal and any interest
and/or fees payable
with respect to the Maturity Date will be paid on the
immediately preceding
Business Day. The interest payable, and punctually paid or duly
provided for, on
any Interest Payment Date will, subject to certain exceptions,
be paid to the
person in whose name this bond (or one or more predecessor
bonds) is registered
at the close of business on the Record Date (as defined below);
provided,
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<PAGE>
however, that interest payable on the Maturity Date will be
payable to the
person to whom the principal hereof shall be payable. Should the
Company default
in the payment of interest ("Defaulted Interest"), the Defaulted
Interest shall
be paid to the person in whose name this bond (or one or more
predecessor bonds)
is registered on a subsequent record date fixed by the Company,
which subsequent
record date shall be fifteen (15) days prior to the payment of
such Defaulted
Interest. As used herein, (A) "Business Day" shall mean any day,
other than a
Saturday or Sunday, on which banks generally are open in New
York, New York for
the conduct of substantially all of their commercial lending
activities and on
which interbank wire transfers can be made on the Fedwire
system; (B) "Interest
Payment Date" shall mean each date on which Obligations
constituting interest
and/or fees are due and payable from time to time pursuant to
the Credit
Agreement; (C) "Interest Rate" shall mean a rate of interest per
annum, adjusted
as necessary, to result in an interest payment equal to the
aggregate amount of
Obligations constituting interest and fees due under the Credit
Agreement on the
applicable Interest Payment Date; and (D) "Record Date" with
respect to any
Interest Payment Date shall mean the day (whether or not a
Business Day)
immediately next preceding such Interest Payment Date.
Payment of the principal of and interest on this bond will be
made in
immediately available funds at the office or agency of the
Company maintained
for that purpose in the City of Jackson, Michigan, 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.
The provisions of this bond are continued on the reverse hereof
and
such continued provisions shall for all purposes have the same
effect as though
fully set forth at this place.
This bond shall not be valid or become obligatory for any
purpose
unless and until it shall have been authenticated by the
execution by the
Trustee or its successor in trust under the Indenture of the
certificate hereon.
IN WITNESS WHEREOF, Consumers Energy Company has caused this
bond to be executed in its name by its Chairman of the Board,
its President or
one of its Vice Presidents by his or her signature or a
facsimile thereof, and
its corporate seal or a facsimile thereof to be affixed hereto
or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries by his
or her signature or a facsimile thereof.
CONSUMERS ENERGY COMPANY
Dated:
By
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Printed
-----------------------------
Title
-------------------------------
Attest:
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<PAGE>
TRUSTEE'S AUTHENTICATION CERTIFICATE
This is one of the bonds, of the series designated therein,
described
in the within-mentioned Indenture.
JPMORGAN CHASE BANK, N.A., Trustee
By
-------------------------------------
Authorized Officer
[REVERSE]
CONSUMERS ENERGY COMPANY
FIRST MORTGAGE BOND
2005-1 COLLATERAL SERIES (INTEREST BEARING)
This bond is one of the bonds of a series designated as First
Mortgage
Bonds, 2005-1 Collateral Series (Interest Bearing) (sometimes
herein referred to
as the "2005-1 Collateral Bonds") issued under and in accordance
with and
secured by an Indenture dated as of September 1, 1945, given by
the Company (or
its predecessor, Consumers Power Company, a Maine corporation)
to City Bank
Farmers Trust Company (JPMorgan Chase Bank, N.A., successor)
(hereinafter
sometimes referred to as the "Trustee"), together with
indentures supplemental
thereto, heretofore or hereafter executed, to which indenture
and indentures
supplemental thereto (hereinafter referred to collectively as
the "Indenture")
reference is hereby made for a description of the property
mortgaged and
pledged, the nature and extent of the security and the rights,
duties and
immunities thereunder of the Trustee and the rights of the
holders of said bonds
and of the Trustee and of the Company in respect of such
security, and the
limitations on such rights. By the terms of the Indenture, the
bonds to be
secured thereby are issuable in series which may vary as to
date, amount, date
of maturity, rate of interest and in other respects as provided
in the
Indenture.
The 2005-1 Collateral Bonds are to be issued and delivered to
the Agent
in order to evidence and secure the obligation of the Company
under the Credit
Agreement to make payments to the Banks under the Credit
Agreement and to
provide the Banks the benefit of the lien of the Indenture with
respect to the
2005-1 Collateral Bonds.
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<PAGE>
The obligation of the Company to make payments with respect to
the
principal of 2005-1 Collateral Bonds shall be fully or
partially, as the case
may be, satisfied and discharged to the extent that, at the time
that any such
payment shall be due, the then due principal of the Loans and/or
the
Reimbursement Obligations included in the Obligations shall have
been fully or
partially paid. Satisfaction of any obligation to the extent
that payment is
made with respect to the Loans and/or the Reimbursement
Obligations means that
if any payment is made on the principal of the Loans and/or the
Reimbursement
Obligations, a corresponding payment obligation with respect to
the principal of
the 2005-1 Collateral Bonds shall be deemed discharged in the
same amount as the
payment with respect to the Loans and/or the Reimbursement
Obligations
discharges the outstanding obligation with respect to such Loans
and/or
Reimbursement Obligations. No such payment of principal shall
reduce the
principal amount of the 2005-1 Collateral Bonds.
The obligation of the Company to make payments with respect to
the
interest on 2005-1 Collateral Bonds shall be fully or partially,
as the case may
be, satisfied and discharged to the extent that, at the time
that any such
payment shall be due, the then due interest and/or fees under
the Credit
Agreement shall have been fully or partially paid. Satisfaction
of any
obligation to the extent that payment is made with respect to
the interest
and/or fees under the Credit Agreement means that if any payment
is made on the
interest and/or fees under the Credit Agreement, a corresponding
payment
obligation with respect to the interest on the 2005-1 Collateral
Bonds shall be
deemed discharged in the same amount as the payment with respect
to the Loans
and/or the Reimbursement Obligations discharges the outstanding
obligation with
respect to such Loans and/or Reimbursement Obligations.
The Trustee may at any time and all times conclusively assume
that the
obligation of the Company to make payments with respect to the
principal of and
interest on this bond, so far as such payments at the time have
become due, has
been fully satisfied and discharged unless and until the Trustee
shall have
received a written notice from the Agent stating (i) that timely
payment of
principal and interest on the 2005-1 Collateral Bonds has not
been made, (ii)
that the Company is in arrears as to the payments required to be
made by it to
the Agent in connection with the Obligations pursuant to the
Credit Agreement,
and (iii) the amount of the arrearage.
If an Event of Default (as defined in the Credit Agreement)
with
respect to the payment of the principal of the Loans and/or the
Reimbursement
Obligations shall have occurred, it shall be deemed to be a
default for purposes
of Section 11.01 of the Indenture in the payment of the
principal of the 2005-1
Collateral Bonds equal to the amount of such unpaid principal or
Reimbursement
Obligations (but in no event in excess of the principal amount
of the 2005-1
Collateral Bonds). If an Event of Default (as defined in the
Credit Agreement)
with respect to the payment of interest on the Loans and/or the
Reimbursement
Obligations or any fees shall have occurred, it shall be deemed
to be a default
for purposes of Section 11.01 of the Indenture in the payment of
the interest on
the 2005-1 Collateral Bonds equal to the amount of such unpaid
interest or fees.
This bond is not redeemable except upon written demand of the
Agent
following the occurrence of an Event of Default under the Credit
Agreement and
the acceleration of the Obligations, as provided in Section 9.2
of the Credit
Agreement. This bond is not redeemable by
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<PAGE>
the operation of the improvement fund or the maintenance and
replacement
provisions of the Indenture or with the proceeds of released
property.
In case of certain defaults as specified in the Indenture,
the
principal of this bond may be declared or may become due and
payable on the
conditions, at the time, in the manner and with the effect
provided in the
Indenture. The holders of certain specified percentages of the
bonds at the time
outstanding, including in certain cases specified percentages of
bonds of
particular series, may in certain cases, to the extent and as
provided in the
Indenture, waive certain defaults thereunder and the
consequences of such
defaults.
The Indenture contains provisions permitting the Company and
the
Trustee, with the consent of the holders of not less than
seventy-five per
centum in principal amount of the bonds (exclusive of bonds
disqualified by
reason of the Company's interest therein) at the time
outstanding, including, if
more than one series of bonds shall be at the time outstanding,
not less than
sixty per centum in principal amount of each series affected, to
effect, by an
indenture supplemental to the Indenture, modifications or
alterations of the
Indenture and of the rights and obligations of the Company and
the rights of the
holders of the bonds and coupons; provided, however, that no
such modification
or alteration shall be made without the written approval or
consent of the
holder hereof which will (a) extend the maturity of this bond or
reduce the rate
or extend the time of payment of interest hereon or reduce the
amount of the
principal hereof, or (b) permit the creation of any lien, not
otherwise
permitted, prior to or on a parity with the lien of the
Indenture, or (c) reduce
the percentage of the principal amount of the bonds the holders
of which are
required to approve any such supplemental indenture.
The Company reserves the right, without any consent, vote or
other
action by holders of the 2005-1 Collateral Bonds or any other
series created
after the Sixty-eighth Supplemental Indenture, to amend the
Indenture to reduce
the percentage of the principal amount of bonds the holders of
which are
required to approve any supplemental indenture (other than any
supplemental
indenture which is subject to the proviso contained in the
immediately preceding
sentence) (a) from not less than seventy-five per centum
(including sixty per
centum of each series affected) to not less than a majority in
principal amount
of the bonds at the time outstanding or (b) in case fewer than
all series are
affected, not less than a majority in principal amount of the
bonds of all
affected series, voting together.
No recourse shall be had for the payment of the principal of
or
interest on this bond, or for any claim based hereon, or
otherwise in respect
hereof or of the Indenture, to or against any incorporator,
stockholder,
director or officer, past, present or future, as such, of the
Company, or of any
predecessor or successor company, either directly or through the
Company, or
such predecessor or successor company, or otherwise, under any
constitution or
statute or rule of law, or by the enforcement of any assessment
or penalty, or
otherwise, all such liability of incorporators, stockholders,
directors and
officers, as such, being waived and released by the holder and
owner hereof by
the acceptance of this bond and being likewise waived and
released by the terms
of the Indenture.
This bond shall be exchangeable for other registered bonds of
the same
series, in the manner and upon the conditions prescribed in the
Indenture, upon
the surrender of such bonds at the Investor Services Department
of the Company,
as transfer agent. However, notwithstanding
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<PAGE>
the provisions of Section 2.05 of the Indenture, no charge shall
be made upon
any registration of transfer or exchange of bonds of said series
other than for
any tax or taxes or other governmental charge required to be
paid by the
Company.
The Agent shall surrender this bond to the Trustee when all of
the
principal of and interest on the Loans and Reimbursement
Obligations arising
under the Credit Agreement, and all of the fees payable pursuant
to the Credit
Agreement with respect to the Obligations shall have been duly
paid, and the
Credit Agreement shall have been terminated.
[END OF FORM OF REGISTERED BOND
OF THE 2005-1 COLLATERAL BONDS]
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AND WHEREAS all acts and things necessary to make the 2005-1
Collateral
Bonds (the "Collateral Bonds"), when duly executed by the
Company and
authenticated by the Trustee or its agent and issued as
prescribed in the
Indenture, as heretofore supplemented and amended, and this
Supplemental
Indenture provided, the valid, binding and legal obligations of
the Company, and
to constitute the Indenture, as supplemented and amended as
aforesaid, as well
as by this Supplemental Indenture, a valid, binding and legal
instrument for the
security thereof, have been done and performed, and the
creation, execution and
delivery of this Supplemental Indenture and the creation,
execution and issuance
of bonds subject to the terms hereof and of the Indenture, as so
supplemented
and amended, have in all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, of the
acceptance and
purchase by the holders thereof of the bonds issued and to be
issued under the
Indenture, as supplemented and amended as above set forth, and
of the sum of One
Dollar duly paid by the Trustee to the Company, and of other
good and valuable
considerations, the receipt whereof is hereby acknowledged, and
for the purpose
of securing the due and punctual payment of the principal of and
premium, if
any, and interest on all bonds now outstanding under the
Indenture and the
$500,000,000 principal amount of the Collateral Bonds and all
other bonds which
shall be issued under the Indenture, as supplemented and amended
from time to
time, and for the purpose of securing the faithful performance
and observance of
all covenants and conditions therein, and in any indenture
supplemental thereto,
set forth, the Company has given, granted, bargained, sold,
released,
transferred, assigned, hypothecated, pledged, mortgaged,
confirmed, set over,
warranted, alienated and conveyed and by these presents does
give, grant,
bargain, sell, release, transfer, assign, hypothecate, pledge,
mortgage,
confirm, set over, warrant, alien and convey unto JPMorgan Chase
Bank, N.A., as
Trustee, as provided in the Indenture, and its successor or
successors in the
trust thereby and hereby created and to its or their assigns
forever, all the
right, title and interest of the Company in and to all the
property, described
in Section 11 hereof, together (subject to the provisions of
Article X of the
Indenture) with the tolls, rents, revenues, issues, earnings,
income, products
and profits thereof, excepting, however, the property, interests
and rights
specifically excepted from the lien of the Indenture as set
forth in the
Indenture.
TOGETHER WITH all and singular the tenements, hereditaments
and
appurtenances belonging or in any wise appertaining to the
premises, property,
franchises and rights, or any thereof, referred to in the
foregoing granting
clause, with the reversion and reversions, remainder
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<PAGE>
and remainders and (subject to the provisions of Article X of
the Indenture) the
tolls, rents, revenues, issues, earnings, income, products and
profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to
the aforesaid premises, property, franchises and rights and
every part and
parcel thereof.
SUBJECT, HOWEVER, with respect to such premises, property,
franchises
and rights, to excepted encumbrances as said term is defined in
Section 1.02 of
the Indenture, and subject also to all defects and limitations
of title and to
all encumbrances existing at the time of acquisition. TO HAVE
AND TO HOLD all
said premises, property, franchises and rights hereby conveyed,
assigned,
pledged or mortgaged, or intended so to be, unto the Trustee,
its successor or
successors in trust and their assigns forever;
BUT IN TRUST, NEVERTHELESS, with power of sale for the equal
and
proportionate benefit and security of the holders of all bonds
now or hereafter
authenticated and delivered under and secured by the Indenture
and interest
coupons appurtenant thereto, pursuant to the provisions of the
Indenture and of
any supplemental indenture, and for the enforcement of the
payment of said bonds
and coupons when payable and the performance of and compliance
with the
covenants and conditions of the Indenture and of any
supplemental indenture,
without any preference, distinction or priority as to lien or
otherwise of any
bond or bonds over others by reason of the difference in time of
the actual
authentication, delivery, issue, sale or negotiation thereof or
for any other
reason whatsoever, except as otherwise expressly provided in the
Indenture; and
so that each and every bond now or hereafter authenticated and
delivered
thereunder shall have the same lien, and so that the principal
of and premium,
if any, and interest on every such bond shall, subject to the
terms thereof, be
equally and proportionately secured, as if it had been made,
executed,
authenticated, delivered, sold and negotiated simultaneously
with the execution
and delivery thereof.
AND IT IS EXPRESSLY DECLARED by the Company that all bonds
authenticated and delivered under and secured by the Indenture,
as supplemented
and amended as above set forth, are to be issued, authenticated
and delivered,
and all said premises, property, franchises and rights hereby
and by the
Indenture and indentures supplemental thereto conveyed,
assigned, pledged or
mortgaged, or intended so to be, are to be dealt with and
disposed of under,
upon and subject to the terms, conditions, stipulations,
covenants, agreements,
trusts, uses and purposes expressed in the Indenture, as
supplemented and
amended as above set forth, and the parties hereto mutually
agree as follows:
SECTION 1. There is hereby created a series of bonds (the
"2005-1
Interest Bearing Collateral Bonds") designated as hereinabove
provided, which
shall also bear the descriptive title "First Mortgage Bond", and
the form
thereof shall be substantially as hereinbefore set forth (the
"Sample Bond").
The 2005-1 Interest Bearing Collateral Bonds shall be issued in
the aggregate
principal amount of $500,000,000, shall mature on the
Termination Date (as such
term is defined in the Credit Agreement) and shall be issued
only as registered
bonds without coupons in denominations of $1,000 and any
multiple thereof. The
serial numbers of the Collateral Bonds shall be such as may be
approved by any
officer of the Company, the execution thereof by any such
officer either
manually or by facsimile signature to be conclusive evidence of
such approval.
The Collateral Bonds are to be issued to and registered in the
name of the Agent
under
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<PAGE>
the Credit Agreement (as such terms are defined in the Sample
Bond) to evidence
and secure any and all Obligations (as such term is defined in
the Credit
Agreement) of the Company under the Credit Agreement.
The 2005-1 Collateral Bonds shall bear interest as set forth in
the
Sample Bond. The principal of and the interest on said bonds
shall be payable as
set forth in the Sample Bond.
The obligation of the Company to make payments with respect to
the
principal of 2005-1 Interest Bearing Collateral Bonds shall be
fully or
partially, as the case may be, satisfied and discharged to the
extent that, at
the time that any such payment shall be due, the then due
principal of the Loans
and/or the Reimbursement Obligations included in the the
Obligations shall have
been fully or partially paid. Satisfaction of any obligation to
the extent that
payment is made with respect to the Loans and/or the
Reimbursement Obligations
means that if any payment is made on the principal of the Loans
and/or the
Reimbursement Obligations, a corresponding payment obligation
with respect to
the principal of the 2005-1 Collateral Bonds shall be deemed
discharged in the
same amount as the payment with respect to the Loans and/or the
Reimbursement
Obligations discharges the outstanding obligation with respect
to such Loans
and/or Reimbursement Obligations. No such payment of principal
shall reduce the
principal amount of the 2005-1 Collateral Bonds.
The obligation of the Company to make payments with respect to
the
interest on 2005-1 Collateral Bonds shall be fully or partially,
as the case may
be, satisfied and discharged to the extent that, at the time
that any such
payment shall be due, the then due interest and/or fees under
the Credit
Agreement, shall have been fully or partially paid. Satisfaction
of any
obligation to the extent that payment is made with respect to
the interest
and/or fees under the Credit Agreement means that if any payment
is made on the
interest and/or fees under the Credit Agreement, a corresponding
payment
obligation with respect to the interest on the 2005-1 Collateral
Bonds shall be
deemed discharged in the same amount as the payment with respect
to the interest
and/or fees discharges the outstanding obligation with respect
to such interest
and/or fees.
The Trustee may at any time and all times conclusively assume
that the
obligation of the Company to make payments with respect to the
principal of and
interest on the Collateral Bonds, so far as such payments at the
time have
become due, has been fully satisfied and discharged unless and
until the Trustee
shall have received a written notice from the Agent stating (i)
that timely
payment of principal and interest on the 2005-1 Collateral Bonds
has not been
made, (ii) that the Company is in arrears as to the payments
required to be made
by it to the Agent pursuant to the Credit Agreement, and (iii)
the amount of the
arrearage.
The Collateral Bonds shall be exchangeable for other registered
bonds
of the same series, in the manner and upon the conditions
prescribed in the
Indenture, upon the surrender of such bonds at the Investor
Services Department
of the Company, as transfer agent. However, notwithstanding the
provisions of
Section 2.05 of the Indenture, no charge shall be made upon any
registration of
transfer or exchange of bonds of said series other than for any
tax or taxes or
other governmental charge required to be paid by the
Company.
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<PAGE>
SECTION 2. The Collateral Bonds are not redeemable by the
operation of
the maintenance and replacement provisions of this Indenture or
with the
proceeds of released property.
SECTION 3. Upon the occurrence of an Event of Default under the
Credit
Agreement and the acceleration of the Obligations, the
Collateral Bonds shall be
redeemable in whole upon receipt by the Trustee of a written
demand from the
Agent stating that there has occurred under the Credit Agreement
both an Event
of Default and a declaration of acceleration of the Obligations
and demanding
redemption of the Collateral Bonds (including a description of
the amount of
principal, interest and fees which comprise such Obligations).
The Company
waives any right it may have to prior notice of such redemption
under the
Indenture. Upon surrender of the Collateral Bonds by the Agent
to the Trustee,
the Collateral Bonds shall be redeemed at a redemption price
equal to the
aggregate amount of the Obligations.
SECTION 4. The Company reserves the right, without any consent,
vote or
other action by the holder of the Collateral Bonds or of any
subsequent series
of bonds issued under the Indenture, to make such amendments to
the Indenture,
as supplemented, as shall be necessary in order to amend Section
17.02 to read
as follows:
SECTION 17.02. With the consent of the holders of not less
than a majority in principal amount of the bonds at the time
outstanding or their attorneys-in-fact duly authorized, or, if
fewer
than all series are affected, not less than a majority in
principal
amount of the bonds at the time outstanding of each series the
rights
of the holders of which are affected, voting together, the
Company,
when authorized by a resolution, and the Trustee may from time
to time
and at any time 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 any
supplemental indenture or modifying the rights and obligations
of the
Company and the rights of the holders of any of the bonds and
coupons;
provided, however, that no such supplemental indenture shall (1)
extend
the maturity of any of the bonds or reduce the rate or extend
the time
of payment of interest thereon, or reduce the amount of the
principal
thereof, or reduce any premium payable on the redemption
thereof,
without the consent of the holder of each bond so affected, or
(2)
permit the creation of any lien, not otherwise permitted, prior
to or
on a parity with the lien of this Indenture, without the consent
of the
holders of all the bonds then outstanding, or (3) reduce the
aforesaid
percentage of the principal amount of bonds the holders of which
are
required to approve any such supplemental indenture, without
the
consent of the holders of all the bonds then outstanding. For
the
purposes of this Section, bonds shall be deemed to be affected
by a
supplemental indenture if such supplemental indenture adversely
affects
or diminishes the rights of holders thereof against the Company
or
against its property. The Trustee may in its discretion
determine
whether or not, in accordance with the foregoing, bonds of
any
particular series would be affected by any supplemental
indenture and
any such determination shall be conclusive upon the holders of
bonds of
such series and all other series. Subject to the
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<PAGE>
provisions of Sections 16.02 and 16.03 hereof, the Trustee shall
not be
liable for any determination made in good faith in connection
herewith.
Upon the written request of the Company, accompanied by a
resolution authorizing the execution of any such
supplemental
indenture, and upon the filing with the Trustee of evidence of
the
consent of bondholders as aforesaid (the instrument or
instruments
evidencing such consent to be dated within one year of such
request),
the Trustee shall join with the Company in the execution of
such
supplemental indenture unless such supplemental indenture
affects the
Trustee's own rights, duties or immunities under this Indenture
or
otherwise, in which case the Trustee may in its discretion but
shall
not be obligated to enter into such supplemental indenture.
It shall not be necessary for the consent of the bondholders
under this Section to approve the particular form of any
proposed
supplemental indenture, but it shall be sufficient if such
consent
shall approve the substance thereof.
The Company and the Trustee, if they so elect, and either
before or aft
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