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Exhibit 4.1 ONE HUNDRED NINTH SUPPLEMENTAL
INDENTURE Providing among other things for FIRST
MORTGAGE BONDS, 2008-1 Collateral Series (Interest
Bearing) Dated as of September 11, 2008
CONSUMERS ENERGY COMPANY TO THE BANK OF NEW
YORK MELLON, TRUSTEE Counterpart
of 90
THIS ONE HUNDRED NINTH
SUPPLEMENTAL INDENTURE, dated as of September 11, 2008 (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, in Jackson, Jackson County, Michigan 49201,
formerly known as Consumers Power Company (hereinafter sometimes
referred to as the " Company "), and THE BANK OF NEW YORK
MELLON (as successor to The Bank of New York), a New York banking
corporation, with its corporate trust offices at 101 Barclay St.,
New York, New York 10286 (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, the name of JPMorgan Chase Bank was changed to JPMorgan Chase
Bank, N.A.; and
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WHEREAS, effective October 2,
2006, The Bank of New York assumed the rights and obligations of
JPMorgan Chase Bank, N.A. under the Indenture; and
WHEREAS, effective July 1, 2008,
the name of The Bank of New York was changed to The Bank of New
York Mellon; and 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 Revolving Credit Agreement dated as of
September 11, 2008 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "
Credit Agreement ") with various financial institutions and
Union Bank of California, 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
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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, 2008-1 Collateral Series (Interest Bearing),
each of which bonds shall also bear the descriptive title "First
Mortgage Bond" (hereinafter provided for and hereinafter sometimes
referred to as the " 2008-1 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 2008-1 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 2008-1 COLLATERAL BONDS] [FACE]
CONSUMERS ENERGY COMPANY
FIRST MORTGAGE BOND
2008-1 COLLATERAL SERIES (INTEREST BEARING)
No. 1 $150,000,000
CONSUMERS ENERGY COMPANY, a Michigan
corporation (hereinafter called the " Company "), for value
received, hereby promises to pay to Union Bank of California, N.A.,
as administrative agent (in such capacity, the " Agent ")
for the Banks under and as defined in the Revolving Credit
Agreement, dated as of September 11, 2008, among the Company,
the Banks named therein and from time to time party thereto, Union
Bank of California, N.A., as an LC Issuer (as defined therein), and
the Agent (as amended, amended and restated, supplemented or
otherwise modified from time to time, the " Credit Agreement
"), or registered assigns, the principal sum of One Hundred and
Fifty Million Dollars ($150,000,000) 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
September 11, 2008. If the
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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,
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 and Los Angeles, California 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.
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CONSUMERS ENERGY COMPANY
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Dated:
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By:
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Printed:
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Title:
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Attest:
TRUSTEE’S AUTHENTICATION CERTIFICATE
This is one of the bonds, of the
series designated therein, described in the within-mentioned
Indenture.
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THE BANK OF NEW YORK MELLON, Trustee
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By:
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Authorized Officer
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[REVERSE] CONSUMERS ENERGY COMPANY FIRST MORTGAGE BOND
2008-1 COLLATERAL SERIES (INTEREST BEARING)
This bond is one of the bonds of a
series designated as First Mortgage Bonds, 2008-1 Collateral Series
(Interest Bearing) (sometimes herein referred to as the "2008-1
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 (The Bank of
New York Mellon, 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 2008-1 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
2008-1 Collateral Bonds. The
obligation of the Company to make payments with respect to the
principal of 2008-1 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
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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 2008-1 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 2008-1 Collateral Bonds.
The obligation of the Company to make
payments with respect to the interest on 2008-1 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 2008-1 Collateral Bonds shall be deemed discharged
in the same amount as the payment with respect to the interest
and/or fees under the Credit Agreement discharges the outstanding
obligation under the Credit Agreement 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 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 2008-1 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 2008-1 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 2008-1 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 2008-1 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 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
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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 2008-1
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 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
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all of the fees payable pursuant to the Credit Agreement with
respect to the Obligations, shall have been duly paid, no Facility
LC shall be outstanding, and the Credit Agreement (including,
without limitation, all Commitments thereunder) shall have been
terminated. [END OF FORM OF REGISTERED BOND OF THE 2008-1
COLLATERAL BONDS] AND WHEREAS
all acts and things necessary to make the 2008-1 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 $150,000,000
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
The Bank of New York Mellon, 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
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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 " 2008-1 Collateral
Bonds ") designated as hereinabove provided, which shall also
bear the descriptive title "First Mortgage Bond", and the forms
thereof shall be substantially as hereinbefore set forth
(collectively, the " Sample Bond "). The 2008-1 Collateral
Bonds shall be issued in the aggregate principal amount of
$150,000,000, 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 the Credit Agreement (as such terms are defined in
the Sample Bonds) to evidence and secure any and all Obligations
(as such term is defined in the Credit Agreement) of the Company
under the Credit Agreement.
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The 2008-1 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 2008-1
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 2008-1 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 2008-1 Collateral Bonds.
The obligation of the Company to make
payments with respect to interest on 2008-1 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 2008-1 Collateral Bonds shall be deemed discharged in the same
amount as the payment with respect to the interest and/or fees
under the Credit Agreement discharges the outstanding obligation
under the Credit Agreement 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
2008-1 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. 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.
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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 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.
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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
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