<PAGE>
Exhibit (4)(a)
ONE HUNDRED FIRST SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS,
SERIES 2005 DUE APRIL 1, 2035
----------------
DATED AS OF APRIL 1, 2005
----------------
CONSUMERS ENERGY
COMPANY
TO
JPMORGAN CHASE BANK, N.A.
TRUSTEE
Counterpart ____ of 90
<PAGE>
ONE HUNDRED FIRST SUPPLEMENTAL INDENTURE, dated as of April 1,
2005
(hereinafter 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, in 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, in the Borough of
Manhattan, The City of 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, Morgan Guaranty Trust
Company
of New York merged with and into The Chase
Manhattan Bank which thereafter 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
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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 pursuant to a Trust Indenture, dated as of April 1,
2005
(the "MSF Trust Indenture") by and between
the Michigan Strategic Fund, a
Michigan public body corporate and politic
of the State of Michigan (the
"Issuer"), and JPMorgan Chase Bank, N.A.,
as trustee (together with any
successor trustee thereto, the "MSF Trust
Indenture Trustee"), the Issuer has
agreed to issue and sell $35,000,000
principal amount of its Variable Rate
Limited Obligation Revenue Bonds (Consumers
Energy Company Project)
Collateralized Series 2005 (hereinafter
sometimes called the "MSF Bonds"), in
order to provide funds to finance the costs
of constructing, acquiring,
improving and installing certain solid
waste disposal facilities of the Company;
and
2
<PAGE>
WHEREAS the MSF Trust Indenture provides, among other things,
for
credit enhancement on the MSF Bonds;
and
WHEREAS Financial Guaranty Insurance Corporation, a New York
stock
insurance company ("FGIC") has agreed to
provide such credit enhancement on the
MSF Bonds through the issuance of its
municipal bond new issue insurance policy
(the "Policy") which insures certain
payments of principal of and interest on
the MSF Bonds, as specified therein;
and
WHEREAS the Company has entered into a Loan Agreement, dated as
of
April 1, 2005 with the Issuer (the "Loan
Agreement") in connection with the
issuance of the MSF Bonds and pursuant to
such Loan Agreement the Company has
agreed to issue a new series of bonds under
the Indenture in order to secure the
payment of the MSF Bonds; and
WHEREAS for such purposes the Company desires to issue a new
series
of bonds, to be designated Series 2005 due
April 1, 2035, each of which bonds
shall also bear the descriptive title
"First Mortgage Bond" (hereinafter
provided for and hereinafter sometimes
referred to as the "Series 2005 Bonds"),
the bonds of which series are to be issued
as registered bonds without coupons
and are to bear interest at the rates per
annum specified herein and are to
mature on April 1, 2035; and
WHEREAS each of the registered bonds without coupons of the
Series
2005 Bonds and the Trustee's Authentication
Certificate thereon are to be
substantially in the following form:
[FORM OF REGISTERED BOND OF THE SERIES 2005 BONDS]
[FACE]
CONSUMERS ENERGY COMPANY
FIRST MORTGAGE BOND, SERIES 2005 DUE APRIL 1, 2035
No.
$35,000,000
Notwithstanding any provisions hereof or in the Indenture, this
bond
is not assignable or transferable except as
may be required to effect a transfer
to any successor trustee under the Trust
Indenture, dated as of April 1, 2005
between the Michigan Strategic Fund and
JPMorgan Chase Bank, N.A., as trustee,
or, subject to compliance with applicable
law, as may be involved in the course
of the exercise of rights and remedies
consequent upon an Event of Default under
said Trust Indenture.
CONSUMERS ENERGY COMPANY, a Michigan corporation (hereinafter
called
the "Company"), for value received, hereby
promises to pay to JPMorgan Chase
Bank, N.A., as trustee, or registered
assigns, the principal sum of Thirty-Five
Million Dollars ($35,000,000) or such
lesser principal amount as shall be equal
to the aggregate principal amount of the
MSF
3
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Bonds (as defined below) outstanding on
April 1, 2035 and to pay to the
registered holder hereof interest on said
sum at the rate and in the manner as
set forth in the MSF Bonds (as defined
below), until the principal hereof shall
have become due and payable, payable in
each year on each interest payment date
for the MSF Bonds (herein referred to as an
"interest payment date").
Under a Trust Indenture dated as of April 1, 2005 (hereinafter
sometimes referred to as the "MSF Trust
Indenture"), between the Michigan
Strategic Fund (hereinafter sometimes
called "MSF") and JPMorgan Chase Bank,
N.A., as trustee (hereinafter, together
with any successor trustee thereto,
sometimes called the "MSF Trust Indenture
Trustee"), MSF has issued Variable
Rate Limited Obligation Revenue Bonds
(Consumers Energy Company Project)
Collateralized Series 2005 (hereinafter
sometimes referred to as "MSF Bonds").
This bond was originally issued to MSF and
simultaneously and irrevocably
assigned by the MSF to the MSF Trust
Indenture Trustee so as to secure the
payment of the MSF Bonds. Payments of
principal of, or premium, if any, or
interest on, the MSF Bonds shall constitute
payments on this bond as further
provided herein and in the supplemental
indenture pursuant to which this bond
has been issued.
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.
4
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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.
Dated:
CONSUMERS ENERGY COMPANY
By: _____________________________
Its:_____________________________
Attest:
_____________________________
Assistant Secretary
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
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, SERIES 2005 DUE APRIL 1, 2035
The interest payable on any interest payment date will, subject
to
certain exceptions provided in the
Indenture hereinafter mentioned, be paid to
the person in whose name this bond is
registered at the close of business on the
record date, which shall be the first day
of the month
5
<PAGE>
in which such interest payment is due
(whether or not a business day). The
principal of and the premium, if any, and
the interest on this bond shall be
payable at the office or agency of the
Company in the City of Jackson, Michigan
designated for that purpose, in any coin or
currency of the United States of
America which at the time of payment is
legal tender for public and private
debts.
Upon
payment of the principal of, or premium, if any, or interest
on, the MSF Bonds, whether at maturity or
prior to maturity by redemption or
otherwise or upon provision for the payment
thereof having been made in
accordance with Article VIII of the MSF
Trust Indenture, the principal of, and
premium, if any, on the Series 2005 Bonds
and the interest thereon then due
shall, to the extent of such payment of
principal, premium or interest, be
deemed fully paid and the obligation of the
Company thereunder to make such
payment shall forthwith cease and be
discharged and, in the case of the payment
of principal and premium, if any, such
Series 2005 Bonds shall be surrendered
for cancellation or presented for
appropriate notation to the Trustee. Upon
cancellation of any MSF Bond purchased by
the Company pursuant to Article III of
the MSF Trust Indenture, in accordance with
Section 3.06(a) thereof, the
principal of the Series 2005 Bonds shall,
to the extent of the principal amount
of the MSF Bonds so cancelled, be deemed
fully paid and the obligation of the
Company under the Series 2005 Bonds to make
payment of such principal shall
forthwith cease and be discharged and
Series 2005 Bonds in a principal amount
equal to the principal amount of the MSF
Bonds so cancelled shall be surrendered
for cancellation or presented for
appropriate notation to the Trustee. 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 premium, if
any, and interest on the Series 2005 Bonds,
so far as such payments at the time
have become due, has been fully satisfied
and discharged pursuant to the
foregoing sentence unless and until the
Trustee shall have received a written
notice from the MSF Trust Indenture Trustee
signed by one of its officers
stating (i) that timely payment of
principal of, or premium or interest on, the
MSF Bonds has not been made, (ii) that the
Company is in arrears as to the
payments required to be made by it to the
MSF Trust Indenture Trustee pursuant
to the Loan Agreement after giving effect
to any available moneys in the Bond
Fund provided by the MSF Trust Indenture,
and (iii) the amount of the arrearage.
This bond is one of the bonds issued and to be issued from time
to
time under and in accordance with and all
secured by an Indenture dated as of
September 1, 1945, given by the Company (or
its predecessor of the same name, a
Maine corporation) to City Bank Farmers
Trust Company (JPMorgan Chase Bank,
N.A., successor) (hereinafter sometimes
referred to as the "Trustee"), and
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.
6
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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.
This bond is not redeemable by the operation of the improvement
fund
or the maintenance and replacement
provisions of the Indenture or by the use of
proceeds of released property.
This bond is redeemable on the respective dates and in the
respective principal amounts which
correspond to the redemption dates for, and
the principal amounts to be redeemed of,
the MSF Bonds, including provision for
redemption upon demand of the MSF Trust
Indenture Trustee following the
occurrence of an Event of Default under the
MSF Trust Indenture and the
acceleration of the MSF Bonds.
This bond shall not be assignable or transferable except as may
be
required to effect a transfer to any
successor trustee under the MSF Trust
Indenture, or, subject to compliance with
applicable law, as may be involved in
the course of the exercise of rights and
remedies consequent upon an Event of
Default under the MSF Trust Indenture. Any
such transfer shall be effected at
the Investor Services Department of the
Company, as transfer agent (hereinafter
referred to as "corporate trust office").
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 said corporate
trust office of the 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.
No recourse shall be had for the payment of the principal of or
premium, if any, 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.
7
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[End of Form of Registered Bond of the Series 2005 Bonds.]
- - - - - - - - - - - - - - -
AND WHEREAS all acts and things necessary to make the Series
2005
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 $35,000,000 principal amount of
Series 2005 Bonds proposed to be issued
initially 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, alienate 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 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
8
<PAGE>
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 one series of 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. Series 2005 Bonds shall be issued in
the aggregate principal amount of
$35,000,000, shall mature on April 1, 2035
and shall be issued only as
registered bonds without coupons in
denominations of $5,000 and any multiple
thereof. The serial numbers of the Series
2005 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. Series 2005 Bonds shall bear
interest at the rates per annum
effective from time to time with respect to
the MSF Bonds, until the principal
thereof shall have become due and payable,
specified in the title thereof,
payable on each interest payment date for
the MSF Bonds in each year. The
principal of and the premium, if any, and
the interest on said bonds shall be
payable in any coin or currency of the
United States of America which at the
time of payment is legal tender for public
and private debts, at the office or
agency of the Company in the City of
Jackson, Michigan designated for that
purpose.
9
<PAGE>
Upon payment of the principal of, and premium, if any, or
interest
on the MSF Bonds, whether at maturity or
prior to maturity by redemption or
otherwise, or upon provision for payment
thereof having been made in accordance
with Article VIII of the MSF Trust
Indenture, the principal of, and premium, if
any, on the Series 2005 Bonds and the
interest thereon then due shall, to the
extent of such payment of principal,
premium or interest, be deemed fully paid
and the obligation of the Company
thereunder to make such payment shall
forthwith cease and be discharged, and, in
the case of such payment of principal
and premium, if any, such Series 2005 Bonds
shall be surrendered for
cancellation or presented for appropriate
notation to the Trustee. Upon
cancellation of any MSF Bond purchased by
the Company pursuant to Article III of
the MSF Trust Indenture, in accordance with
Section 3.06(a) thereof, the
principal of the Series 2005 Bonds shall,
to the extent of the principal amount
of the MSF Bonds so cancelled, be deemed
fully paid and the obligation of the
Company under the Series 2005 Bonds to make
payment of such principal shall
forthwith cease and be discharged and
Series 2005 Bonds in a principal amount
equal to the principal amount of the MSF
Bonds so cancelled shall be surrendered
for cancellation or presented for
appropriate notation to the Trustee. 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 premium, if
any, and interest on the Series 2005 Bonds,
so far as such payments at the time
have become due, has been fully satisfied
and discharged pursuant to the
foregoing sentence unless and until the
Trustee shall have received a written
notice from the MSF Trust Indenture Trustee
signed by one of its officers
stating (i) that timely payment of
principal of, or premium or interest on, the
MSF Bonds has not been made, (ii) that the
Company is in arrears as to the
payments required to be made by it to the
MSF Trust Indenture Trustee pursuant
to the Loan Agreement after giving effect
to any available moneys in the Bond
Fund provided by the MSF Trust Indenture,
and (iii) the amount of the arrearage.
Each Series 2005 Bond is to be irrevocably assigned to, and
registered in the name of the MSF Trust
Indenture Trustee, to secure payment of
the MSF Bonds, the proceeds of which have
been provided for financing the cost
of certain solid waste disposal facilities
pursuant to the provisions of the
Loan Agreement.
Series 2005 Bonds shall not be assignable or transferable except
as
may be required to effect a transfer to any
successor trustee under the MSF
Trust Indenture, or, subject to compliance
with applicable law, as may be
involved in the course of the exercise of
rights and remedies consequent upon an
Event of Default under the MSF Trust
Indenture. Any such transfer shall be
transferred at the Investor Services
Department of the Company, as transfer
agent (hereinafter and in the Series 2005
Bonds referred to as "corporate trust
office"). Series 2005 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 said corporate trust office of
the 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.
10
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SECTION 2. Series 2005 Bonds shall be redeemed on the
respective
dates and in the respective principal
amounts which correspond to the redemption
dates for, and the principal amounts to be
redeemed of, the MSF Bonds.
In the event the Company elects or is required to redeem any
MSF
Bonds prior to maturity in accordance with
the provisions of the MSF Trust
Indenture, the Company may on the same date
redeem the Series 2005 Bonds in
principal amounts and at prices
corresponding to the MSF Bonds so redeemed. In
the event of an optional redemption of any
MSF Bonds, the Company agrees to give
the Trustee notice of any such redemption
of the Series 2005 Bonds on the same
date as it gives notice of the optional
redemption of the MSF Bonds to the MSF
Trust Indenture Trustee.
Series 2005 Bonds are not redeemable by the operation of the
improvement fund or the maintenance and
replacement provisions of the Indenture
or by the use of proceeds of released
property.
SECTION 3. In the event of an Event of Default under the MSF
Trust
Indenture and the acceleration of all MSF
Bonds, the Series 2005 Bonds shall be
redeemable in whole upon receipt by the
Trustee of a written demand (hereinafter
called a "Redemption Demand") from the MSF
Trust Indenture Trustee stating that
there has occurred under the MSF Trust
Indenture both an Event of Default and a
declaration of acceleration of payment of
principal, accrued interest and
premium, if any, on the MSF Bonds,
specifying the last date to which interest on
the MSF Bonds has been paid (such date
being hereinafter referred to as the
"Initial Interest Accrual Date") and
demanding redemption of the Series 2005
Bonds. The Trustee shall, within five days
after receiving such Redemption
Demand, mail a copy thereof to the Company
marked to indicate the date of its
receipt by the Trustee. Promptly upon
receipt by the Company of such copy of a
Redemption Demand, the Company shall fix a
date on which it will redeem the
Series 2005 Bonds so demanded to be
redeemed (hereinafter called the "Demand
Redemption Date"). Notice of the date fixed
as the Demand Redemption Date shall
be mailed by the Company to the Trustee at
least ten days prior to such Demand
Redemption Date. The date to be fixed by
the Company as and for the Demand
Redemption Date may be any date up to and
including the earlier of (x) the 60th
day after receipt by the Trustee of the
Redemption Demand or (y) the maturity
date of the Series 2005 Bonds; provided,
however, that if the Trustee shall not
have received such notice fixing the Demand
Redemption Date on or before the
10th day preceding the earlier of such
dates, the Demand Redemption Date shall
be deemed to be the earlier of such dates.
The Trustee shall mail notice of the
Demand Redemption Date (such notice being
hereinafter called the "Demand
Redemption Notice") to the MSF Trust
Indenture Trustee not more than ten nor
less than five days prior to the Demand
Redemption Date.
Each of the Series 2005 Bonds shall be redeemed by the Company
on
the Demand Redemption Date therefor upon
surrender thereof by the MSF Trust
Indenture Trustee to the Trustee at a
redemption price equal to the principal
amount thereof plus accrued interest
thereon at the rate then in effect with
respect to such bond from the Initial
Interest Accrual Date to the Demand
Redemption Date plus an amount equal to the
aggregate premium, if any, due and
payable on such Demand Redemption Date on
all MSF Bonds; provided, however, that
in the event of a receipt by the Trustee of
a notice that, pursuant to Section
9.02 of the MSF Trust
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Indenture, the MSF Trust Indenture Trustee
has terminated proceedings to enforce
any right under the MSF Trust Indenture,
then any Redemption Demand shall
thereby be rescinded by the MSF Trust
Indenture Trustee, and no Demand
Redemption Notice shall be given, or, if
already given, shall be automatically
annulled; but no such rescission or
annulment shall extend to or affect any
subsequent default or impair any right
consequent thereon.
SECTION 4. The Company reserves the right, without any consent,
vote
or other action by the holder of the Series
2005 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
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
12
<PAGE>
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 inde
