<PAGE>
EXHIBIT 10(e)
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
-------------------------------
Printed
-------------------------
Title
----------------------------
Attest:
----------------------
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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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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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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 after such cons
