Exhibit 4.3


 


EXECUTION COPY


 




 





 


ITC HOLDINGS CORP.


 


and


 


 


BNY MIDWEST TRUST COMPANY


as Trustee


 


 


INDENTURE


 


Dated as of


 


July 16, 2003


 


 


Providing for Issuance of
Securities


 




 





 



















TABLE OF CONTENTS


 


	
  ARTICLE 1 Definitions and Other
  Provisions of General Application

  	
   

  
	
  Section 1.1 Definitions

  	
   

  
	
  “Acquired Indebtedness”

  	
   

  
	
  “Acquisition”

  	
   

  
	
  “Act”

  	
   

  
	
  “Affiliate”

  	
   

  
	
  “Attributable
  Debt”

  	
   

  
	
  “Attributable Value”

  	
   

  
	
  “Authenticating Agent”

  	
   

  
	
  “Board of Directors”

  	
   

  
	
  “Board
  Resolution”

  	
   

  
	
  “Business
  Day”

  	
   

  
	
  “Capitalized Lease Obligation”

  	
   

  
	
  “Capital
  Stock”

  	
   

  
	
  “Commission”

  	
   

  
	
  “Company”

  	
   

  
	
  “Company Request” and “Company Order”

  	
   

  
	
  “Consolidated Capitalization”

  	
   

  
	
  “Consolidated
  FFO”

  	
   

  
	
  “Consolidated Interest Expense”

  	
   

  
	
  “Consolidated Rental Payments”

  	
   

  
	
  “Corporate Trust Office”

  	
   

  
	
  “Corporation”

  	
   

  
	
  “Covenant Defeasance”

  	
   

  
	
  “Defaulted Interest”

  	
   

  
	
  “Defeasance”

  	
   

  
	
  “Depositary”

  	
   

  
	
  “Disqualified Capital Stock”

  	
   

  
	
  “Equity
  Interests”

  	
   

  
	
  “Event
  of Default”

  	
   

  
	
  “Exchange
  Act”

  	
   

  
	
  “Existing Indebtedness”

  	
   

  
	
  “Federal Bankruptcy Act”

  	
   

  
	
  “First Mortgage Indenture”

  	
   

  
	
  “FFO Coverage Ratio”

  	
   

  
	
  “Funded Indebtedness”

  	
   

  
	
  “Global
  Security”

  	
   

  
	
  “Holder”

  	
   

  
	
  “Indebtedness”

  	
   

  
	
  “Indenture”

  	
   

  
	
  “Independent”

  	
   

  



 


i





















 


	
  “Interest”

  	
   

  
	
  “Interest Payment Date”

  	
   

  
	
  “Investment Company Act”

  	
   

  
	
  “Lien”

  	
   

  
	
  “Maturity”

  	
   

  
	
  “Net Tangible Assets”

  	
   

  
	
  “Notice
  of Default”

  	
   

  
	
  “Officer”

  	
   

  
	
  “Officers’ Certificate”

  	
   

  
	
  “Opinion of Counsel”

  	
   

  
	
  “Original Issue Discount Security”

  	
   

  
	
  “Outstanding”

  	
   

  
	
  “Paying
  Agent”

  	
   

  
	
  “Permitted Encumbrances”

  	
   

  
	
  “Permitted Indebtedness”

  	
   

  
	
  “Periodic
  Offering”

  	
   

  
	
  “Person”

  	
   

  
	
  “Place
  of Payment”

  	
   

  
	
  “Predecessor Securities”

  	
   

  
	
  “Property”

  	
   

  
	
  “Purchase Money Indebtedness”

  	
   

  
	
  “Redemption
  Date”

  	
   

  
	
  “Redemption
  Price”

  	
   

  
	
  “Regular Record Date”

  	
   

  
	
  “Reference
  Period”

  	
   

  
	
  “Refinancing Indebtedness”

  	
   

  
	
  “Related
  Business”

  	
   

  
	
  “Repayment
  Date”

  	
   

  
	
  “Repayment
  Price”

  	
   

  
	
  “Responsible Officer”

  	
   

  
	
  “Revolving Credit Agreement”

  	
   

  
	
  “Sale and Leaseback Transaction”

  	
   

  
	
  “Securities
  Act”

  	
   

  
	
  “Security”

  	
   

  
	
  “Security
  Register”

  	
   

  
	
  “Security Registrar”

  	
   

  
	
  “Special Record Date”

  	
   

  
	
  “Stated
  Maturity”

  	
   

  
	
  “Subsidiary”

  	
   

  
	
  “Trust Indenture Act”

  	
   

  
	
  “Trustee”

  	
   

  
	
  “U.S. Government Obligations”

  	
   

  
	
  “Vice
  President”

  	
   

  
	
  Section 1.2
  Compliance Certificates and Opinions

  	
   

  
	
  Section 1.3
  Form of Documents Delivered to Trustee

  	
   

  
	
  Section 1.4
  Acts of Holders

  	
   

  



 


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  Section 1.5
  Notices, etc., to Trustee and Company

  	
   

  
	
  Section 1.6
  Notices to Holders; Waiver

  	
   

  
	
  Section 1.7
  Conflict with Trust Indenture Act

  	
   

  
	
  Section 1.8
  Effect of Headings and Table of Contents

  	
   

  
	
  Section 1.9
  Successors and Assigns

  	
   

  
	
  Section 1.10
  Separability Clause

  	
   

  
	
  Section 1.11
  Benefits of Indenture

  	
   

  
	
  SECTION 1.12
  GOVERNING LAW

  	
   

  
	
  Section 1.13
  Submission to Jurisdiction

  	
   

  
	
  Section 1.14
  Waiver of Jury Trial

  	
   

  
	
  Section 1.15
  Legal Holidays

  	
   

  
	
  Section 1.16 Counterparts

  	
   

  
	
  Section 1.17 No Recourse Against
  Others

  	
   

  



 


	
  ARTICLE 2 Security Forms

  	
   

  
	
  Section 2.1 Forms Generally

  	
   

  
	
  Section 2.2 Forms of Securities

  	
   

  
	
  Section 2.3 Form of Trustee’s
  Certificate of Authentication

  	
   

  
	
  Section 2.4 Securities Issuable in the
  Form of a Global Security

  	
   

  



 


	
  ARTICLE 3 The Securities

  	
   

  
	
  Section 3.1 General Title; General
  Limitations; Issuable in Series; Terms of Particular Series

  	
   

  
	
  Section 3.2
  Denominations

  	
   

  
	
  Section 3.3
  Execution, Authentication, Delivery and Dating

  	
   

  
	
  Section 3.4 Temporary Securities

  	
   

  
	
  Section 3.5 Registration, Transfer and
  Exchange

  	
   

  
	
  Section 3.6 Mutilated, Destroyed, Lost
  and Stolen Securities

  	
   

  
	
  Section 3.7 Payment of Interest;
  Interest Rights Preserved

  	
   

  
	
  Section 3.8 Persons Deemed Owners

  	
   

  
	
  Section 3.9 Cancellation

  	
   

  
	
  Section 3.10 Computation of Interest

  	
   

  
	
  Section 3.11 Periodic Offering of
  Securities

  	
   

  
	
  Section 3.12 CUSIP Numbers

  	
   

  



 


	
  ARTICLE 4 Satisfaction and Discharge

  	
   

  
	
  Section 4.1 Satisfaction and Discharge
  of Indenture

  	
   

  
	
  Section 4.2 Application of Trust Money

  	
   

  



 


	
  ARTICLE 5 Remedies

  	
   

  
	
  Section 5.1 Events of Default

  	
   

  
	
  Section 5.2 Acceleration of Maturity;
  Rescission and Annulment

  	
   

  
	
  Section 5.3 Collection of Indebtedness
  and Suits for Enforcement by Trustee

  	
   

  
	
  Section 5.4 Trustee May File
  Proofs of Claim

  	
   

  
	
  Section 5.5 Trustee May Enforce
  Claims Without Possession of Securities

  	
   

  
	
  Section 5.6 Application of Money
  Collected

  	
   

  
	
  Section 5.7 Limitation on Suits

  	
   

  



 


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  Section 5.8 Unconditional Right of
  Holders to Receive Principal, Premium and Interest

  	
   

  
	
  Section 5.9 Restoration of Rights and
  Remedies

  	
   

  
	
  Section 5.10 Rights and Remedies
  Cumulative

  	
   

  
	
  Section 5.11 Delay or Omission Not
  Waiver

  	
   

  
	
  Section 5.12 Control by Holders

  	
   

  
	
  Section 5.13 Waiver of Defaults

  	
   

  
	
  Section 5.14 Undertaking for Costs

  	
   

  
	
  Section 5.15 Waiver of Stay or
  Extension Laws

  	
   

  



 


	
  ARTICLE 6 The Trustee

  	
   

  
	
  Section 6.1 Certain Duties and
  Responsibilities

  	
   

  
	
  Section 6.2 Notice of Defaults

  	
   

  
	
  Section 6.3 Certain Rights of Trustee

  	
   

  
	
  Section 6.4 Not Responsible for
  Recitals or Issuance of Securities

  	
   

  
	
  Section 6.5 May Hold Securities

  	
   

  
	
  Section 6.6 Money Held in Trust

  	
   

  
	
  Section 6.7 Compensation and
  Reimbursement

  	
   

  
	
  Section 6.8 Disqualification;
  Conflicting Interests

  	
   

  
	
  Section 6.9 Corporate Trustee
  Required; Eligibility

  	
   

  
	
  Section 6.10 Resignation and Removal;
  Appointment of Successor

  	
   

  
	
  Section 6.11 Acceptance of Appointment
  by Successor

  	
   

  
	
  Section 6.12 Merger, Conversion,
  Consolidation or Successor to Business

  	
   

  
	
  Section 6.13 Preferential Collection
  of Claims Against Company

  	
   

  
	
  Section 6.14 Appointment of
  Authenticating Agent

  	
   

  



 


	
  ARTICLE 7 Holders’ Lists and Reports
  by Trustee and Company

  	
   

  
	
  Section 7.1 Company to Furnish Trustee
  Names and Addresses of Holders

  	
   

  
	
  Section 7.2 Preservation of Information;
  Communications to Holders

  	
   

  
	
  Section 7.3 Reports by Trustee

  	
   

  
	
  Section 7.4 Statement by Officers as
  to Default

  	
   

  



 


	
  ARTICLE 8 Consolidation, Merger,
  Conveyance, Transfer or Lease

  	
   

  
	
  Section 8.1 Company May Consolidate,
  etc.

  	
   

  
	
  Section 8.2 Successor Corporation
  Substituted

  	
   

  



 


	
  ARTICLE 9 Supplemental Indentures

  	
   

  
	
  Section 9.1 Supplemental Indenture
  Without Consent of Holders

  	
   

  
	
  Section 9.2 Supplemental Indentures
  With Consent of Holders

  	
   

  
	
  Section 9.3 Execution of Supplemental
  Indentures

  	
   

  
	
  Section 9.4 Effect of Supplemental
  Indentures

  	
   

  
	
  Section 9.5 Reference in Securities to
  Supplemental Indentures

  	
   

  



 


	
  ARTICLE 10 Covenants

  	
   

  
	
  Section 10.1 Payment of Principal,
  Premium and Interest

  	
   

  
	
  Section 10.2 Maintenance of Office or
  Agency

  	
   

  
	
  Section 10.3 Money for Security
  Payments to Be Held in Trust

  	
   

  
	
  Section 10.4 Statement as to
  Compliance

  	
   

  



 


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  Section 10.5 Corporate Existence

  	
   

  
	
  Section 10.6 Waiver of Certain
  Covenants

  	
   

  
	
  Section 10.7 Further Assurances

  	
   

  
	
  Section 10.8 Limitation on Incurrence
  of Debt

  	
   

  
	
  Section 10.9 Restrictions on Liens

  	
   

  
	
  Section 10.10 Restrictions on Sale and
  Leaseback Transactions

  	
   

  
	
  Section 10.11 Reports

  	
   

  



 


	
  ARTICLE 11 Redemption of Securities

  	
   

  
	
  Section 11.1 Applicability of Article

  	
   

  
	
  Section 11.2 Election to Redeem;
  Notice to Trustee

  	
   

  
	
  Section 11.3 Selection by Trustee of
  Securities to Be Redeemed

  	
   

  
	
  Section 11.4 Notice of Redemption

  	
   

  
	
  Section 11.5 Deposit of Redemption
  Price

  	
   

  
	
  Section 11.6 Securities Payable on
  Redemption Date

  	
   

  
	
  Section 11.7 Securities Redeemed in
  Part

  	
   

  



 


	
  ARTICLE 12 Sinking Funds

  	
   

  
	
  Section 12.1 Applicability of Article

  	
   

  
	
  Section 12.2 Satisfaction of Sinking
  Fund Payments with Securities

  	
   

  
	
  Section 12.3 Redemption of Securities
  for Sinking Fund

  	
   

  



 


	
  ARTICLE 13 Defeasance and Covenant
  Defeasance

  	
   

  
	
  Section 13.1 Company’s Right with
  Respect to Defeasance or Covenant Defeasance

  	
   

  
	
  Section 13.2 Defeasance and Discharge

  	
   

  
	
  Section 13.3 Covenant Defeasance

  	
   

  
	
  Section 13.4 Conditions to Defeasance
  or Covenant Defeasance

  	
   

  
	
  Section 13.5 Deposited Money and U.S.
  Government Obligations to Be Held in Trust; Miscellaneous Provisions

  	
   

  
	
  Section 13.6 Reinstatement

  	
   

  



 


	
  ARTICLE 14 Immunity of Incorporators,
  Stockholders, Officers and Directors

  	
   

  
	
  Section 14.1 Liability Solely
  Corporate

  	
   

  



 


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EXECUTION COPY


 


INDENTURE
dated as of July 16, 2003 (the “Indenture”),
between ITC HOLDINGS CORP., a
corporation duly organized and existing under the laws of the State of Michigan
(hereinafter called the “Company”),
having its principal place of business at 1901 South Wagner, Ann Arbor,
Michigan, 48103-9715 and BNY MIDWEST
TRUST COMPANY, a corporation duly organized and existing under the
laws of the State of Illinois, as trustee hereunder (the “Trustee”).


 


RECITALS OF THE COMPANY


 


The Company
has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its debentures, notes, bonds or other
evidences of indebtedness (herein called the “Securities”),
to be issued in one or more series as in this Indenture provided.


 


All things
necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.


 


AGREEMENTS OF THE PARTIES


 


To set forth
or to provide for the establishment of the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, and in consideration
of the premises and the purchase of Securities by the Holders thereof, it is
mutually covenanted and agreed as follows, for the equal and proportionate
benefit of all Holders of the Securities or of a series thereof, as the case
may be:


 


ARTICLE 1


 


Definitions and
Other Provisions

of General Application


 


Section 1.1   Definitions.


 


For all purposes of this
Indenture and of any indenture supplemental hereto, except as otherwise
expressly provided or unless the context otherwise requires:


 


(a)                                  the
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;


 


(b)                                 all
other terms used herein which are defined in the Trust Indenture Act or by
Commission rule under the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;


 


(c)                                  all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with United States generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such
United States accounting principles as are generally accepted at the date of
such computation;


 





















 


(d)                                 all
references in this instrument to designated “Articles,”
“Sections” and other subdivisions
are to the designated Articles, Sections and other subdivisions of this
instrument.  The words “herein,” “hereof”
and “hereunder” and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and


 


(e)                                  “including” and words of similar import
shall be deemed to be followed by “without
limitation.”


 


“Acquired Indebtedness”  means Indebtedness (including Disqualified
Capital Stock) of any Person existing at the time such Person becomes a
Subsidiary of the Company, including by designation, or is merged or
consolidated into or with the Company or one of its Subsidiaries.


 


“Acquisition”
means the purchase as of February 28, 2003 by the Company of all of the
capital stock of International Transmission Company.


 


“Act”, when used with respect to any
Holder, has the meaning specified in Section 1.4.


 


“Affiliate” of any specified Person means any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the purposes
of this definition, “control,” when used with respect to any specified Person,
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.


 


“Attributable Debt” means indebtedness for money borrowed deemed to be incurred
in respect of a Sale and Leaseback Transaction and shall be, at the date of
determination, the present value (discounted at the rate of interest specified
by the terms of such lease), of the total obligations of the lessee for rental
payments during the remaining term of the lease (including any period for which
such lease has or may be extended) included in such Sale and Leaseback
Transaction, after excluding all amounts required to be paid on account of
property taxes as well as maintenance, repairs, insurance, water rates and
other items which do not constitute payments for property rights.


 


“Attributable Value”
in respect of any Sale and Leaseback Transaction means, as of the time of
determination, the lesser of (i) the sale price of the Property so leased
multiplied by a fraction the numerator of which is the remaining portion of the
base term of the lease included in such Sale and Leaseback Transaction and the
denominator of which is the base term of such lease, and (ii) the total
obligation (discounted to present value at the rate of interest specified by
the terms of such lease) of the lessee for rental payments (other than amounts
required to be paid on account of property taxes as well as maintenance,
repairs, insurance, water rates and other items which do not constitute
payments for property rights) during the remaining portion of the base term of
the lease included in such Sale and Leaseback Transaction.


 


2





















 


“Authenticating Agent”
means any Person authorized by the Trustee pursuant to Section 6.14 to act
on behalf of the Trustee to authenticate Securities of one or more series under
Section 6.14.


 


“Board of Directors”
means either the board of directors of the Company or any duly authorized
committee of that board.


 


“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Board of Directors of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.


 


“Business Day”when
used with respect to a Place of Payment or any other particular location
specified in the Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking institutions or trust
companies in such Place of Payment, New York, New York, Chicago, Illinois,
Detroit, Michigan or such other location are generally authorized or required
by law, regulation or executive order to remain closed.


 


“Capitalized Lease Obligation”
means, as to any Person, the obligations of such Person under a lease that are
required to be classified and accounted for as capital lease obligations under
generally accepted accounting principles (but excluding any amounts required to
be paid by such Person (regardless of whether designated as rents or additional
rents) on account of maintenance, repairs, insurance, taxes and similar
charges) and, for purposes of this definition, the amount of such obligations
at any date shall be the capitalized amount of such obligations at such date,
determined in accordance with generally accepted accounting principles.


 


“Capital Stock”
means (a) in the case of a Corporation, corporate stock, (b) in the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person, but in each case excluding any debt securities convertible into such
stock, interests or other equivalents.


 


“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.


 


“Company” means the Person named as the “Company”
in the first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Company” shall mean such successor Person.


 


“Company
Request” and “Company
Order” mean, respectively, a written request or order signed in
the name of the Company by any two of the following: its Chairman of the Board,
its Vice Chairman of the Board, its President, any of its Vice Presidents, its
Treasurer


 


3





















 


or Assistant Treasurer, its
Controller or Assistant Controller, its Secretary or Assistant Secretary, its
principal financial officer, its principal accounting officer or any other
officer, employee or agent of the Company duly authorized by a Board Resolution,
and delivered to the Trustee.


 


“Consolidated Capitalization”
of the Company means consolidated total assets less consolidated non-interest
bearing current liabilities, all as shown by a consolidated balance sheet of
the Company and its Subsidiaries prepared in accordance with generally accepted
accounting principles at the date of such balance sheet.


 


“Consolidated FFO”
means, for any period, the sum, without duplication, of: (1) Consolidated
Net Income for such period; (2) the consolidated interest expense of the
Company and its Subsidiaries that was capitalized during such period; (3) the
consolidated deferred taxes of the Company and its Subsidiaries for such
period; (4) consolidated depreciation, amortization and other non-cash
charges, and extraordinary charges of the Company and its Subsidiaries that
were deducted in determining such Consolidated Net Income for such period; (5) the
consolidated allowance for funds used during construction of the Company and
its Subsidiaries for such period; and (6) any non-recurring fees, charges
or other expenses (including acquisition integration costs and fees) incurred
in connection with the Acquisition within one year of the initial issuance of
Securities under this Indenture, in any such case to the extent such fees,
charges or other expenses were deducted in computing such Consolidated Net
Income, provided that
Consolidated FFO shall exclude changes in the Company’s working capital on a
consolidated basis for such period, in each case, determined in accordance with
generally accepted accounting principles.


 


“Consolidated Interest Expense” means, for any period, the sum, without duplication, of: (1) the
consolidated net interest expense of the Company and its Subsidiaries for such
period to the extent such expense was deducted in computing Consolidated Net
Income (including, without limitation, amortization of original issue discount,
the interest component of any deferred payment obligations, the interest
component of all payments associated with Capitalized Lease Obligations,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers’ acceptance financing, and net payments (if any) pursuant
to interest swap and hedging obligations (but excluding commitment fees and other
periodic bank charges)); (2) the consolidated interest expense of the
Company and its Subsidiaries that was capitalized during such period; (3) the
interest expense paid or due and payable by the Company or any of its
Subsidiaries on Indebtedness of another Person that is guaranteed, or for which
credit support is provided for by Indebtedness of the type described in clause (b) of
the definition of “Indebtedness”, by the Company or one of its Subsidiaries or
secured by a lien on assets of the Company or one of its Subsidiaries (whether
or not such guarantee or lien is called upon); (4) imputed interest in respect of Attributable Debt; (5) one-third of Consolidated Rental Payments; and
(6) the product of (a) all cash dividend payments (and
non-cash dividend payments in the case of a Person that is a Subsidiary) on any
series of preferred stock of such Person payable to a party other than the
Company or one of its wholly owned Subsidiaries, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined Federal, state and local statutory tax rate of such Person,
expressed as a decimal, on a consolidated basis and in accordance with
generally accepted accounting principles.


 


4





















 


“Consolidated Net
Income” means, with respect to any Person for any
period, the aggregate of the net income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with generally
accepted accounting principles, provided
that: (1) the net income (but not loss) of any Person that is not the
Company or a Subsidiary of the Company or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount of dividends
or distributions paid in cash to the referent Person or a wholly owned
subsidiary thereof; (2) the net income of any Subsidiary of the Company
shall be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that net income is not at the date
of determination permitted without any prior governmental approval (which has
not been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its shareholders; (3) the
cumulative effect of a change in accounting principles (effected either through
cumulative effect adjustment or a retroactive application) shall be excluded; (4) all
other extraordinary gains and extraordinary losses shall be excluded; (5) losses
on extinguishment of debt shall be excluded; and (6) any impairment charge
related to goodwill shall be excluded.


 


“Consolidated Rental Payments” of any Person means, for any period, the aggregate rental
obligations of such Person and its Subsidiaries (not including taxes,
insurance, maintenance and similar expenses that the lessee is obligated to pay
under the terms of the relevant leases), determined on a consolidated basis in
accordance with generally accepted accounting principles, payable in respect of
such period (net of income from subleases thereof not including taxes,
insurance, maintenance and similar expenses that the sublessee is obligated to
pay under the terms of such sublease), whether or not such obligations are
reflected as liabilities or commitments on a consolidated balance sheet of such
Person and its Subsidiaries or in the notes thereto, excluding, however, in any
event, (i) that portion of Consolidated Interest Expense of such Person
representing payments by such Person or any of its Subsidiaries in respect of
Capitalized Lease Obligations (net of payments to such Person or any of its
Subsidiaries under subleases qualifying as capitalized lease subleases to the
extent that such payments would be deducted in determining Consolidated
Interest Expense) and (ii) the aggregate amount of amortization of
obligations of such Person and its Subsidiaries in respect of such Capitalized
Lease Obligations for such period (net of payments to such Person or any of its
Subsidiaries and subleases qualifying as capitalized lease subleases to the
extent that such payments could be deducted in determining such amortization
amount).


 


“Corporate Trust Office”
means the office of the Trustee in Chicago, Illinois, at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of the execution and delivery of this Indenture, as
originally executed and delivered, is located at 2 N. LaSalle Street,
Suite 1020, Chicago, Illinois 60630,
Attention: Corporate Trust Administration.


 


“Corporation”
means a corporation, association, company, joint-stock company or business
trust.


 


“Covenant Defeasance”
has the meaning specified in Section 13.3.


 


“Defaulted Interest”
has the meaning specified in Section 3.7.


 


5





















 


“Defeasance” has
the meaning specified in Section 13.2.


 


“Depositary”
means, unless otherwise specified by the Company pursuant to either Section 2.4
or Section 3.1, with respect to Securities of any series issuable or
issued as a Global Security, The Depository Trust Company, New York, New York,
or any successor thereto registered as a clearing agency under the Exchange Act
or other applicable statute or regulation.


 


“Disqualified Capital Stock”
means with respect to any Person, (a) Equity Interests of such Person
that, by its terms or by the terms of any security into which it is
convertible, exercisable or exchangeable, is, or upon the happening of an event
or the passage of time or both would be, required to be redeemed or repurchased
including at the option of the holder thereof by such Person or any of its
Subsidiaries, in whole or in part, on or prior to the Stated Maturity of the
Securities and (b) any Equity Interests of any Subsidiary of such Person
other than any common equity with no preferences or privileges, and no
redemption or repayment provisions.


 


“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire
Capital Stock or partnership, participation or membership interests (but
excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).


 


“Event of Default”
has the meaning specified in Section 5.1.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended.


 


“Existing Indebtedness”
means the Indebtedness of the Company and its Subsidiaries in existence on the
date of first issuance of the Securities under the Indenture, reduced to the
extent such amounts are repaid, refinanced or retired.


 


“fair
market value” means the price that would be paid in an
arm’s-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to
buy, as determined in good faith by the Company.


 


“Federal Bankruptcy Act”
has the meaning specified in Section 6.13.


 


“First Mortgage Indenture”
means the First Mortgage and Deed of Trust, dated as of July 15, 2003,
between International Transmission Company and BNY Midwest Trust Company, as
trustee thereunder, as the same may be amended, supplemented or otherwise
modified and in effect from time to time.


 


“FFO Coverage Ratio”
of any Person means, for any period, the ratio of (1) Consolidated FFO
plus the consolidated interest expense of the Company and its Subsidiaries, to
the extent paid in cash, to (2) Consolidated Interest Expense plus the
consolidated allowance for funds used during construction, debt portion, of the
Company and its Subsidiaries, each determined for such period.


 


In the event
that the Company or any of its Subsidiaries incurs, assumes, guarantees or
redeems any Indebtedness (other than revolving credit borrowings under existing


 


6





















 


credit facilities) or issues
preferred stock subsequent to the commencement of the Reference Period for
which the FFO Coverage Ratio is being calculated but prior to the date on which
the event for which the calculation of the FFO Coverage Ratio is made (the “Calculation Date”), which Indebtedness or
preferred stock remains outstanding on the Calculation Date, then the FFO
Coverage Ratio shall be calculated giving pro
forma effect to such incurrence, assumption, guarantee or redemption
of Indebtedness, or such issuance or redemption of preferred stock, and to the
discharge of any other Indebtedness or preferred stock repaid, repurchased,
defeased or otherwise discharged with the proceeds of such new Indebtedness or
preferred stock, as if the same had occurred at the beginning of the applicable
Reference Period.


 


For purposes
of making the computation referred to above, acquisitions that have been made
by the Company or any of its Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the
Reference Period or subsequent to such Reference Period and on or prior to the
Calculation Date shall be deemed to have occurred on the first day of the
Reference Period.


 


“First
Supplemental Indenture” means the indenture supplemental
hereto dated as of July 16, 2003.


 


“Funded Indebtedness”
means notes, bonds, debentures or other similar evidences of Indebtedness for
money borrowed which by its terms matures at or is extendible or renewable at
the option of the obligor to a date more than 12 months after the date of the
incurrence of such Indebtedness.


 


“Global Security”
means, with respect to any series of Securities issued hereunder, a Security
which is executed by the Company and authenticated and delivered by the Trustee
to the Depositary or pursuant to the Depositary’s instruction, all in
accordance with this Indenture and an indenture supplemental hereto, if any, or
Board Resolution and pursuant to a Company Request, which shall be registered
in the name of the Depositary or its nominee and which shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all of the Outstanding Securities of such series or any portion thereof to be
issued in book-entry form, in either case having the same terms, including the
same original issue date, date or dates on which principal is due, and interest
rate or method of determining interest.


 


“Holder”, when used with respect to any
Security, means the Person in whose name such Security is registered in the
Security Register.


 


“Indebtedness”
means, with respect to any Person (without duplication), (a) any liability
of such Person (1) for borrowed money or under any reimbursement
obligation relating to a letter of credit, financial bond or similar instrument
or agreement, (2) evidenced by a bond, note, debenture or similar
instrument or agreement (including a purchase money obligation) given in
connection with the acquisition of any business, properties or assets of any
kind (other than a trade payable or a current liability arising in the ordinary
course of business or a performance bond or similar obligation), (3) for
the payment of money relating to any obligations under any capital lease of
real or personal property or (4) under any agreement or instrument in
respect of an interest rate or currency swap, exchange or hedging transaction
or other financial derivatives transaction; (b) any liability of others
described in the preceding


 


7





















 


clause (a) that the Person
has guaranteed or that is otherwise its legal liability; and (c) any
amendment, supplement, modification, deferral, renewal, extension or refunding
of any liability of the types referred to in clauses (a) and (b) above
and all Disqualified Capital Stock of such Person (measured at the greater of
its voluntary or involuntary maximum fixed repurchase price plus accrued and
unpaid dividends). For the purpose of determining any particular amount of
Indebtedness under this definition, guarantees of (or obligations with respect
to letters of credit or financial bonds supporting) Indebtedness otherwise
included in the determination of such amount shall not be included.


 


For purposes
hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock
which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Capital Stock as if such Disqualified
Capital Stock were purchased on any date on which Indebtedness shall be required
to be determined pursuant to the Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Capital Stock, such
fair market value to be determined in good faith by the board of directors of
the issuer (or managing general partner of the issuer) of such Disqualified
Capital Stock.


 


The amount of
any Indebtedness outstanding as of any date shall be (1) the accreted
value thereof, in the case of any Indebtedness issued with original issue
discount, but the accretion of original issue discount in accordance with the
original terms of Indebtedness issued with an original issue discount will not
be deemed to be an incurrence and (2) the principal amount thereof, in the
case of any other Indebtedness.  The
amount of any Indebtedness that is a contingent obligation shall be deemed to
be an amount equal to the stated amount of the primary obligation in respect of
which such contingent obligation is made or, if not stated, the reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.


 


“Indenture” or “this
Indenture” means this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as
contemplated by Section 3.1; provided, however, that if at
any time more than one Person is acting as Trustee under this instrument due to
the appointment of one or more separate Trustees for any one or more separate
series of Securities pursuant to Section 6.10, “Indenture” shall mean,
with respect to such series of Securities for which any such Person is Trustee,
this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and including the terms of the
particular series of Securities for which such Person is Trustee established as
contemplated by Section 3.1, exclusive, however, of any provisions or
terms which relate solely to other series of Securities for which such Person
is not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.


 


“Independent”,
when used with respect to any specified Person, means such a Person who (1) is
in fact independent, (2) does not have any direct material financial
interest in


 


8





















 


the Company or in any other
obligor upon the Securities or in any Affiliate of the Company or of such other
obligor, (3) is not connected with the Company or such other obligor or
any Affiliate of the Company or of such other obligor, as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions, and (4) is approved by the Trustee in the exercise of
reasonable care.  Each certificate or
opinion required by any provision of this Indenture to be made by a Person that
is Independent shall contain a statement of the signers thereof that such
Person has read this definition and is Independent within the meaning hereof.


 


“Interest”, when used with respect to an
Original Issue Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.


 


“Interest Payment Date”,
when used with respect to any series of Securities, means the Stated Maturity
of any installment of interest on those Securities.


 


“Investment Company Act”
means the Investment Company Act of 1940, as amended.


 


“Lien” means, with respect to any
Property, any mortgage or deed of trust, pledge, hypothecation, assignment,
security interest, lien, encumbrance, or other security arrangement of any kind
or nature whatsoever on or with respect to such Property (including any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).


 


“Maturity”, when used with respect to any
Securities, means the date on which the principal of any such Security or an
installment of principal becomes due and payable as therein or herein provided,
whether on a Repayment Date, at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.


 


“Net Tangible Assets”
means the amount shown as total assets on the consolidated balance sheet of the
Company prepared in accordance with generally accepted accounting principles on
the date of such balance sheet, less the following:  (i) intangible assets including such
items as goodwill, trademarks, tradenames, patents and unamortized debt
discount and expense and other regulatory assets carried as an asset on the
balance sheet; and (ii) appropriate adjustments, if any, on account of
minority interests.


 


“Notice of Default”
means a written notice of the kind specified in Section 5.1(d).


 


“Officer” means the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President, the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary, in each case of the Company.


 


“Officers’ Certificate” means a certificate signed by any two of
the following: the Chairman of the Board, the Vice Chairman of the Board, the
President or a Vice President, the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary,
in each case of the Company, its principal financial officer, its principal
accounting officer or any other officer, employee or agent of the Company duly
authorized by a Board Resolution, and delivered to the Trustee.  Wherever this Indenture requires that an


 


9





















 


Officers’ Certificate be signed
also by an engineer or an accountant or other expert, such engineer, accountant
or other expert (except as otherwise expressly provided in this Indenture) may
be in the employ of the Company.


 


“Opinion of Counsel”
means a written opinion of counsel, who may (except as otherwise expressly
provided herein) be an employee of or counsel to the Company.  Such counsel shall be reasonably acceptable
to the Trustee.


 


“Original
Issue Discount Security” means any Security deemed
an Original Issue Discount Security for Federal income tax purposes.


 


“Outstanding”, when
used with respect to Securities of any series, means, as of the date of
determination, all such Securities theretofore authenticated and delivered
under this Indenture, except:


 


(a)                                  such
Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;


 


(b)                                 such
Securities for whose payment or redemption money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture and provision therefor satisfactory
to the Trustee has been made;


 


(c)                                  Securities
as to which Defeasance has been effected pursuant to Section 13.2; and


 


(d)                                 such
Securities in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, or which shall have
been paid pursuant to the terms of Section 3.6 (except with respect to any
such Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a Person in whose hands such Security is a legal, valid
and binding obligation of the Company).


 


In determining whether the
Holders of the requisite principal amount of such Securities Outstanding have
given, made or taken any request, demand, authorization, direction, notice,
consent or waiver hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding shall
be the amount of the principal thereof which would be due and payable as of
such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.2,
(B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 3.1, (C) the
principal amount of a Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding shall be the U.S. dollar
equivalent, determined as of such date in the manner provided as contemplated
by Section 3.1, of the principal amount of such Security (or, in the case
of a Security described in clause (A) or (B) above, of the amount
determined as provided in such clause), and (D) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such


 


10





















 


other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer of the Trustee actually knows to be
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor upon the Securities or any Affiliate of
the Company or such other obligor shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee certifies to the Trustee the pledgee’s right to act as owner with
respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor.


 


“Paying Agent”
means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.


 


“Permitted Encumbrances”
has the meaning specified in Section 10.9.


 


“Permitted Indebtedness”
means:


 


(1)                                  International
Transmission Company may incur Indebtedness that is not prohibited by
applicable legal and regulatory requirements, including the rules and
regulations of the Federal Energy Regulatory Commission (including without
limitation Indebtedness incurred under the Revolving Credit Agreement up to
$25.0 million and the First Mortgage Indenture);


 


(2)                                  the Company may incur
Indebtedness evidenced by the Securities issued pursuant to the First
Supplemental Indenture up to the amount being issued on the date of first
issuance of the Securities under the Indenture;


 


(3)                                  the Company and any
Subsidiary may incur Refinancing Indebtedness with respect to (a) any
Indebtedness permitted to be incurred by the Company or such Subsidiary
pursuant to clauses (1), (2), (3) and (4) of this definition, as the
case may be, or (b) that was incurred pursuant to the Debt Incurrence
Ratio test in Section 10.8;


 


(4)                                  the Company and its
Subsidiaries may incur Existing Indebtedness;


 


(5)                                  the Company and its
Subsidiaries may incur Indebtedness solely in respect of bankers acceptances,
letters of credit, surety bonds and performance bonds or guarantees (to the
extent that such incurrence does not result in the incurrence of any obligation
to repay any obligation relating to borrowed money or other Indebtedness), all
in the ordinary course of business;


 


(6)                                  the Company or any of
its Subsidiaries may incur intercompany Indebtedness between or among the
Company and any of its Subsidiaries; provided,
however, that:


 


(a)                                   if
the Company is the obligor on such Indebtedness, such Indebtedness shall not be
secured and shall be expressly subordinated to the prior payment in full in
cash of all obligations with respect to the Securities; and


 


11





















 


(b)                                  (i) any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Subsidiary of
the Company and (ii) any sale or other transfer of any such Indebtedness
to a Person that is not either the Company or a Subsidiary of the Company will
be deemed, in each case, to constitute an incurrence of such Indebtedness by
the Company or such Subsidiary, as the case may be, that was not permitted by
this clause (6);


 


(7)                                  any Subsidiary of the
Company may guarantee any Indebtedness of the Company or another Subsidiary of
the Company that was permitted to be incurred pursuant to the Indenture;


 


(8)                                  the Company and its
Subsidiaries may incur interest swap and hedging obligations that are incurred for
the purpose of fixing or hedging interest rate or currency risk with respect to
any fixed or floating rate Indebtedness that is permitted by the Indenture to
be outstanding or any receivable or liability the payment of which is
determined by reference to a foreign currency;


 


(9)                                  the Company and its
Subsidiaries may incur Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or from
guarantees or letters of credit, surety bonds or performance bonds securing the
performance of the Company or any of its Subsidiaries in connection with the
disposition of a portion of the business or assets of a Subsidiary of the
Company in a principal amount not to exceed 10% of the gross proceeds (with proceeds
other than cash or cash equivalents being valued at the fair market value
thereof as determined by the Company’s Board of Directors in good faith)
actually received by the Company or any of its Subsidiaries in connection with
such disposition;


 


(10)                            the Company and its
Subsidiaries may incur Purchase Money Indebtedness; provided, that


 


(a)                                   the
aggregate amount of such Indebtedness incurred after the date of first issuance
of the Securities under the Indenture pursuant to this clause (10) shall
not exceed $10.0 million at any time outstanding, and


 


(b)                                  in
each case, such Indebtedness shall not constitute more than 100% of the cost
(determined in accordance with generally accepted accounting principles in good
faith by the Company’s Board of Directors), as applicable, of the property so
purchased, constructed, improved or leased;


 


(11)                            the Company and its
Subsidiaries may incur Capitalized Lease Obligations so long as the aggregate
amount of such Capitalized Lease Obligations incurred after the date of first
issuance of the Securities under the Indenture pursuant to this clause (11)
shall not exceed $10.0 million at any time outstanding;


 


(12)                            the Company and its
Subsidiaries may incur Indebtedness arising solely by virtue of banker’s liens,
rights of set-off or similar rights and remedies as to deposit accounts or


 


12





















 


other funds maintained with a depository
institution; provided that such
deposit account is not intended by the Company to provide collateral to the
depository institution; and


 


(13)                            the
Company and its Subsidiaries may incur Indebtedness in an aggregate amount
outstanding at any time pursuant to this clause (13) of up to
$10.0 million.


 


“Periodic Offering”
means an offering of Securities of a series from time to time the specific
terms of which Securities, including without limitation the rate or rates of
interest (or formula for determining the rate or rates of interest), if any,
thereon, the Stated Maturity or Maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company
or its agents upon the issuance of such Securities.


 


“Person” means any individual,
corporation, partnership, joint venture, limited liability company,
association, company, trust, unincorporated organization or government or any
agency or political subdivision thereof.


 


“Place of Payment”
means, with respect to any series of Securities issued hereunder, the city or
political subdivision in which the Paying Agent is located and so designated
with respect to the series of Securities in question in accordance with the
provisions of Section 3.1, which if not so designated shall be The City of
New York.


 


“Predecessor Securities”
of any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered
under Section 3.6 in exchange for or in lieu of a lost, mutilated,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, mutilated, destroyed or stolen Security.


 


“Property” of
any Person shall mean all such Person’s (i) property and assets and (ii) rights
to and interests in all property and assets.


 


“Purchase Money Indebtedness”
of any Person means any Capitalized Lease Obligation of such Person or any
other Indebtedness of such Person, in either case to any seller or other Person
incurred to finance the acquisition (including in the case of a Capitalized
Lease Obligation, the lease), construction, installation or improvement of any
after-acquired real or personal tangible property which, in the reasonable good
faith judgment of the Company’s Board of Directors, is directly related to a
Related Business of the Company and which is incurred concurrently or within
180 days following such acquisition, construction, installation or
improvement.


 


“Redemption Date”
when used with respect to any Security to be redeemed, means the date fixed for
such redemption by or pursuant to this Indenture.


 


“Redemption Price”,
when used with respect to any Security to be redeemed, means the price
specified in such Security or pursuant to this Indenture at which it is to be
redeemed pursuant to this Indenture or, if not specified, 100% of the
outstanding principal amount thereof.


 


13





















 


“Regular Record Date”
for the interest payable on the Securities of any series on any Interest
Payment Date means the date specified in such Securities of any series or
pursuant to this Indenture as the Regular Record Date, irrespective of whether
such date is a Business Day.


 


“Reference Period”  with regard to any Person means the four full
fiscal quarters (or such lesser period during which such Person has been in
existence, which in the case of International Transmission Company and the
Company shall be deemed to be the period commencing February 28, 2003) for
which internal financial statements are available ended immediately preceding
any date upon which any determination is to be made pursuant to the terms of
the Securities or the Indenture.


 


“Refinancing Indebtedness”  means Indebtedness (including Disqualified
Capital Stock):  (1) issued in
exchange for, or the proceeds from the issuance and sale of which are used to
repay, redeem, defease, refund, refinance, discharge or otherwise retire for
value, in whole or in part, or (2) constituting an amendment, modification
or supplement to, or a deferral or renewal of ((1) and (2) above are,
collectively, a “Refinancing”), any Indebtedness (including Disqualified
Capital Stock), in a principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, not to exceed (after deduction of reasonable
fees and expenses incurred in connection with the Refinancing plus the amount
of any premium paid in connection with such Refinancing) the lesser of (a) the
principal amount or, in the case of Disqualified Capital Stock, liquidation
preference, of the Indebtedness (including Disqualified Capital Stock) so
Refinanced, and (b) if such Indebtedness being Refinanced was issued with
an original issue discount, the accreted value thereof (as determined in
accordance with generally accepted accounting principles) at the time of such
Refinancing; provided, that (i) such
Refinancing Indebtedness shall only be used to refinance outstanding
Indebtedness (including Disqualified Capital Stock) of such Person issuing such
Refinancing Indebtedness, (ii) such Refinancing Indebtedness shall (x) not
have an average life shorter than the Indebtedness (including Disqualified
Capital Stock) to be so refinanced at the time of such Refinancing and (y) in
all respects, be no less contractually subordinated or junior, if applicable,
to the rights of Holders of the Securities than was the Indebtedness (including
Disqualified Capital Stock) to be refinanced, and (iii) if such
Refinancing Indebtedness is subordinated to the Securities, such Refinancing
Indebtedness shall have a final stated maturity or redemption date, as applicable,
no earlier than the final stated maturity or redemption date, as applicable, of
the Indebtedness (including Disqualified Capital Stock) to be so refinanced or,
if sooner, 91 days after the Stated Maturity of the Securities.


 


“Related Business”  means the business conducted (or proposed to
be conducted) by the Company and its Subsidiaries as of the date of first
issuance of the Securities under the Indenture and any and all businesses that
in the good faith judgment of the Company’s Board of Directors are materially
related businesses or reasonable extensions or expansions thereof.


 


“Repayment Date”,
when used with respect to any Security to be repaid at the option of the
Holder, means the date fixed for such repayment in such Security or pursuant to
this Indenture.


 


14





















 


“Repayment Price”,
when used with respect to any Security to be repaid at the option of the
Holder, means the price specified in such Security or pursuant to this
Indenture at which it is to be repaid pursuant to such Security.


 


“Responsible Officer”,
when used with respect to the Trustee, means any officer of the Trustee within
the Corporate Trust Administration group of the Trustee (or any successor group
of the Trustee) located at the Corporate Trust Office of the Trustee who has
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.


 


“Revolving Credit Agreement”
means the revolving credit agreement, dated as of July 16, 2003, between
and among the Company, the lenders party thereto, the administrative agent
thereunder and the other parties thereto from time to time, as the same may be
amended, supplemented or otherwise modified and in effect from time to time
including any successor or replacement agreement whether by the same or any
other agent, lender or group of lenders.


 


“Sale and Leaseback Transaction”
has the meaning specified in Section 10.10.


 


“Securities Act”
means the Securities Act of 1933, as amended.


 


“Security” has
the meaning stated in the first recital of this Indenture and more particularly
means any Security authenticated and delivered under this Indenture; provided,
however, that if at any time there is more than one Person acting as
Trustee under this Indenture, “Security” with respect to the Indenture as to
which such Person is Trustee shall have the meaning stated in the first recital
of this Indenture and shall more particularly mean a Security authenticated and
delivered under this Indenture, exclusive, however, of a Security of any series
as to which such Person is not Trustee.


 


“Security Register”
shall have the meaning specified in Section 3.5.


 


“Security Registrar”
means the Person who keeps the Security Register specified in Section 3.5.


 


“Special Record Date”
for the payment of any Defaulted Interest (as defined in Section 3.7)
means a date fixed by the Trustee pursuant to Section 3.7.


 


“Stated Maturity”,
when used with respect to any Security or any installment of principal thereof
or interest thereon, means the date specified in such Security as the fixed
date on which the principal of such Security or such installment of principal
or interest is due and payable.


 


“Subsidiary”
means any Corporation or other business entity of which the Company owns or
controls (either directly or through one or more other Subsidiaries) more than
50% of the issued share capital or other ownership interests, in each case
having ordinary voting power to elect or appoint directors, managers or
trustees of such Corporation or other business entity (whether or not Capital
Stock or other ownership interests or any other class or classes shall or might
have voting power upon the occurrence of any contingency).


 


15





















 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended.


 


“Trustee” means the Person named as the “Trustee”
in the first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall mean and include each Person who is then a Trustee
hereunder. If at any time there is more than one such Person, “Trustee” as used
with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of that series.


 


“U.S. Government Obligations”
means securities that are (1) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged or (2) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof or any other Person, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act), as custodian with respect to any obligation or a specific
payment of principal of or interest on any such obligation held by such
custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the obligation or the
specific payment of principal of or interest on the obligation evidenced by
such depository receipt.


 


“Vice President”,
when used with respect to the Company, means any vice president, whether or not
designated by a number or a word or words added before or after the title “vice
president,” including an assistant vice president.


 


Section 1.2   Compliance Certificates and Opinions.  Upon any application or request by the
Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee (a) an Officers’
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and (b) an
Opinion of Counsel stating that in the opinion of counsel providing such Opinion
all such conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.


 


Every
certificate or opinion with respect to compliance by or on behalf of the
Company with a condition or covenant provided for in this Indenture (except for
the written statement required by Section 10.4) shall include:


 


(1)                                  a
statement that each individual signing such certificate or opinion has read
such covenant or condition and the definitions herein relating thereto;


 


(2)                                  brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;


 


16





















 


(3)                                  a
statement that, in the opinion of each such officer, the officer has made such
examination or investigation as is necessary to enable the person to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and


 


(4)                                  a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.


 


Section 1.3   Form of Documents Delivered to
Trustee.  In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to the
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.


 


Any
certificate or opinion of an Officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which such certificate or opinion is based are erroneous. Any
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters
is in the possession of the Company, unless counsel providing such Opinion of
Counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.


 


Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.


 


Section 1.4   Acts of Holders  (a)  Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by
this Indenture to be given, made or taken by Holders of any series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.


 


(b)                                    The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness to such execution or by the
certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof.


 


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Where such execution is by an
officer of a Corporation or a member of a partnership, on behalf of such Corporation
or partnership, such certificate or affidavit shall also constitute sufficient
proof of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.


 


(c)                                     The
ownership of Securities shall be proved by the Security Register.


 


(d)                                    If
the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other action, the Company may, at its
option, by Board Resolution, fix in advance a record date for the determination
of Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Securities
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Securities Outstanding shall be computed as of the record date;
provided that no such authorization, agreement or consent by the Holders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than 180 days after the record
date.


 


(e)                                     Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Security shall bind every future Holder and the
Holder of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon whether
or not notation of such action is made upon such Security.


 


(f)                                       Without
limiting the foregoing, a Holder entitled hereunder to give or take any such
action with regard to any particular Security may do so with regard to all or
any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any different part of such principal amount.


 


Section 1.5   Notices, etc., to Trustee and Company.  Except as otherwise provided herein, any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,


 


(a)                                  the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attn: Corporate Trust Administration, with a
courtesy copy to the Trustee’s counsel (which shall not constitute Notice to
the Trustee): Bryan Cave LLP, 1290 Avenue of the Americas, New York, New York
10104, Attn: Robert E. Pedersen, Esq., or


 


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(b)                                 the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (except as otherwise expressly provided herein or, in the case of a
request for repayment, as specified in the Security carrying the right to
repayment) if in writing and mailed by courier to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company or telecopied and confirmed by mail.


 


Section 1.6   Notices to Holders; Waiver.  Where this Indenture or any Security provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein or in such Security expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at its address as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. 
Where this Indenture or any Security provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice.  Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.


 


In case, by
reason of the suspension of regular mail service as a result of a strike, work
stoppage or otherwise, it shall be impractical to mail notice of any event
to any Holder when such notice is required to be given pursuant to any
provision of this Indenture, then any method of notification as shall be
satisfactory to the Trustee and the Company shall be deemed to be a sufficient
giving of such notice.


 


Section 1.7   Conflict with Trust Indenture Act.  This Indenture may, but is not as of the date
first written above required to be, qualified under and subject to the Trust
Indenture Act.  If this Indenture shall
become qualified under and subject to the Trust Indenture Act, then if any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under the Trust Indenture Act to be a part of
and govern this Indenture, the latter provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture
Act, to the extent then applicable, which may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
to be excluded, as the case may be. 
Except as expressly provided otherwise herein, any reference herein to a
requirement under the Trust Indenture Act shall apply only upon and so long as
this Indenture shall become qualified under and subject to the Trust Indenture
Act.


 


Section 1.8   Effect of Headings and Table of Contents.  The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.


 


Section 1.9   Successors and Assigns.  All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.


 


19





















 


Section 1.10   Separability Clause.  In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.


 


Section 1.11   Benefits of Indenture.  Nothing in this Indenture or in any Securities,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any Authenticating Agent, any Paying Agent, the
Security Registrar, and their successors hereunder and the Holders of
Securities (or such of them as may be affected thereby), any benefit or any
legal or equitable right, remedy or claim under this Indenture.


 


SECTION 1.12   GOVERNING
LAW.  THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK EXCEPT, IF THIS INDENTURE SHALL BECOME QUALIFIED UNDER
AND SUBJECT TO THE TRUST INDENTURE ACT, TO THE EXTENT THAT THE TRUST INDENTURE
ACT SHALL BE APPLICABLE.


 


Section 1.13   Submission to Jurisdiction. 
The Company irrevocably agrees that any legal suit, action or proceeding
arising out of or based upon this Indenture or the Securities of any series may
be instituted in the federal courts of the United States of America located in
the City of New York or the courts of the State of New York in each case
located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and irrevocably submits
to the jurisdiction of such courts in any such suit, action or proceeding.  The Company hereby irrevocably and unconditionally
waives any objection to the laying of venue of any lawsuit, action or other
proceeding in the Specified Courts, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such lawsuit, action or other proceeding brought in any such court has been
brought in an inconvenient forum.


 


Section 1.14   Waiver of Jury Trial.  Each of the Company and the Trustee hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating
to this Indenture, the Securities and the transactions contemplated hereby.


 


Section 1.15   Legal Holidays.  Except as may be otherwise specified with
respect to any particular Securities, in any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date, Redemption Date
or at the Stated Maturity, and no interest shall accrue on such payment for the
period from and after such Interest Payment Date, Redemption Date or at the
Stated Maturity, as the case may be.


 


Section 1.16   Counterparts.  This instrument may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.


 


20





















 


Section 1.17   No Recourse
Against Others. 
A director, officer, employee or shareholder, as such, of the Company,
shall not have liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. 
By accepting a Security, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.


 


ARTICLE 2


 


Security Forms


 


Section 2.1   Forms Generally.  The Securities of each series shall be in
substantially the forms set forth in this Article 2, or in such other form
as shall be established by or pursuant to a Board Resolution and set forth in
an Officers’ Certificate or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with applicable laws or regulations
or with the rules of any securities exchange or Depositary therefor, or as
may, consistently herewith, be determined by the Officers executing such
Securities, as evidenced by their execution of the Securities. Any portion of
the text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.  If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.


 


The definitive
Securities shall be printed, typewritten, mimeographed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined by the
Officers of the Company executing such Securities, as evidenced by their
execution of such Securities, subject, with respect to the Securities of any
series, to the rules of any securities exchange on which such Securities
are listed.


 


Section 2.2   Forms of Securities.  Each Security shall be in the form of Exhibit A
hereto or in one of the forms approved from time to time by or pursuant to a
Board Resolution or established in one or more indentures supplemental hereto.
Prior to the delivery of a Security to the Trustee for authentication in any
form approved by or pursuant to a Board Resolution, the Company shall deliver
to the Trustee the Board Resolution by or pursuant to which such form of
Security has been approved, which Board Resolution shall have attached thereto
a true and correct copy of the form of Security which has been approved thereby
or, if a Board Resolution authorizes a specific person or persons to approve a
form of Security, a certificate of such person or persons approving the form of
Security attached thereto. Any form of Security approved by or pursuant to a
Board Resolution must be acceptable as to form to the Trustee, such acceptance
to be evidenced by the Trustee’s authentication of Securities in that form or a
certificate signed by a Responsible Officer of the Trustee and delivered to the
Company.


 


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Section 2.3   Form of
Trustee’s Certificate of Authentication.  The form of Trustee’s Certificate of
Authentication for any Security issued pursuant to this Indenture shall be
substantially as follows:


 


TRUSTEE’S CERTIFICATE OF
AUTHENTICATION


 


This is one of
the Securities of the series designated therein referred to in the
within-mentioned Indenture.


 


	
  Dated:

  	
   

  	
   

  	
  BNY MIDWEST
  TRUST COMPANY,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


Section 2.4   Securities
Issuable in the Form of a Global Security.  (a) If the Company establishes pursuant
to Sections 2.2 and 3.1 that the Securities of a particular series are to be
issued in whole or in part in the form of one or more Global Securities, then
the Company shall execute and the Trustee or its agent shall, in accordance
with Section 3.3 and the Company Request delivered to the Trustee or its
agent thereunder, authenticate and make available for delivery such Global
Security or Securities which (i) shall represent, and shall be denominated
in an amount equal to the aggregate principal amount of, the Outstanding
Securities of such series to be represented by such Global Security or
Securities or such portion thereof as the Company shall specify in a Company
Request, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or its nominee, (iii) shall be made available
for delivery by the Trustee or its agent to the Depositary or pursuant to the
Depositary’s instruction and (iv) shall bear the legends with respect to
Global Securities substantially to the effect set forth in Exhibit A.


 


(b)                                 Notwithstanding
any other provisions of this Section 2.4 or of Section 3.5, but
subject to the provisions of paragraph (c) below, unless the terms of a
Global Security expressly permit such Global Security to be exchanged in whole
or in part for individual Securities, a Global Security may be transferred, in
whole but not in part and in the manner provided in Section 3.5, only to a
nominee of the Depositary for such Global Security, to the Depositary, to a
successor Depositary for such Global Security selected or approved by the Company
or to a nominee of such successor Depositary.


 


(c)                                  (i)                                     If
at any time the Depositary for a Global Security notifies the Company that it
is unwilling or unable to continue as Depositary for such Global Security or if
at any time the Depositary for the Securities for such series ceases to be a
clearing agency registered under the Exchange Act or other applicable statute
or regulation, the Company shall appoint a successor Depositary with respect to
such Global Security. If a successor Depositary for such Global Security is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company will execute, and the
Trustee or its agent, upon receipt of a Company Request for the authentication and
delivery of individual Securities of such series in exchange for such Global
Security, will authenticate and make available for delivery, individual
Securities of such series of like tenor and terms in an


 


22





















 


aggregate principal amount
equal to the principal amount of the Global Security in exchange for such
Global Security.


 


(ii)                               The
Company may at any time and in its sole discretion determine that the
Securities of any series or portion thereof issued or issuable in the form of
one or more Global Securities shall no longer be represented by such Global
Security or Securities. In such event the Company will execute, and the Trustee
or its agent, upon receipt of a Company Request for the authentication and
delivery of individual Securities of such series in exchange in whole or in
part for such Global Security, will authenticate and make available for
delivery individual Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such Global Security or Securities representing such series or portion
thereof in exchange for such Global Security or Securities.


 


(iii)                            If
specified by the Company pursuant to Sections 2.2 and 3.1 with respect to
Securities issued or issuable in the form of one or more Global Securities, the
Depositary for such Global Security or Securities may surrender such Global
Security or Securities in exchange in whole or in part for individual
Securities of such series of like tenor and terms in definitive form on such
terms as are acceptable to the Company and such Depositary. Thereupon the
Company shall execute, and the Trustee or its agent shall authenticate and make
available for delivery, without service charge, (1) to each Person
specified by such Depositary a new Security or Securities of the same series of
like tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such Person’s
beneficial interest in the Global Security or Securities and (2) to such
Depositary a new Global Security or Securities of like tenor and terms and in
an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security or Securities and the
aggregate principal amount of Securities delivered to the Holders thereof.


 


(iv)                           In any
exchange provided for in any of the preceding four paragraphs, the Company will
execute and the Trustee or its agent will authenticate and make available for
delivery individual Securities in definitive registered form in authorized
denominations. Upon the exchange of the entire principal amount of a Global
Security for individual Securities, such Global Security shall be cancelled by
the Trustee or its agent. Except as provided in the immediately preceding
paragraph, Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or the Security Registrar. The Trustee or the Security
Registrar shall deliver such Securities to the Persons in whose names such
Securities are so registered.


 


ARTICLE 3


 


The Securities


 


Section 3.1   General
Title; General Limitations; Issuable in Series; Terms of Particular Series.  The aggregate principal amount of securities
which may be authenticated and delivered and Outstanding under this Indenture
is not limited.


 


23





















 


The Securities
issued under this Indenture may be issued in one or more series up to an
aggregate principal amount of Securities as from time to time may be authorized
by the Board of Directors. The Securities shall be direct, unsecured (unless
one or more series of Securities is secured pursuant to the provision of a
supplement to this Indenture) obligations of the Company and shall rank without
preference or priority among themselves and pari passu with all existing and
future unsecured and unsubordinated Indebtedness of the Company, provided, that
if any existing or future Indebtedness of the Company or any Subsidiary or any
other Person is secured by any Lien on any Property of the Company or any
Subsidiary, whether such Lien is assumed or created or otherwise brought into
existence prior to the issuance of any Securities under this Indenture or
thereafter, then such Securities shall be secured to the extent provided in Section 10.9
hereof. All Securities of each series under this Indenture shall in all
respects be equally and ratably entitled to the benefits hereof with respect to
such series without preference, priority or distinction on account of the actual
time of the authentication and delivery or Stated Maturity of the Securities of
such series.


 


Each series of
Securities shall be created either by or pursuant to a Board Resolution or by
or pursuant to an indenture supplemental hereto. The Securities of each such
series may bear such date or dates, be payable at such place or places, have
such Stated Maturity or Maturities, bear interest at such rate or rates (which
may be fixed or floating), from such date or dates, payable in such
installments and on such dates and at such place or places to the Holders of
Securities registered as such on the related Regular Record Dates, or may bear
no interest, and may be redeemable or repayable at such Redemption Price or
Prices or Repayment Price or Prices, as the case may be, whether at the option
of the Holder or otherwise, and upon such terms, all as shall be provided for
in or pursuant to the Board Resolution or in or pursuant to the supplemental
indenture creating that series. There may also be established in or pursuant to
a Board Resolution and, subject to Section 3.3, set forth, or determined
in the manner provided, in an Officers’ Certificate, or pursuant to a
supplemental indenture prior to the issuance of Securities of each such series,
provision for:


 


(a)                                     the
title of the Securities of the series (which shall distinguish the Securities
of the series from all other series of Securities);


 


(b)                                    any
limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Sections 3.4,
3.5, 3.6, 9.6 or 11.7 hereof and except for any Securities which, pursuant to Section 3.3
hereof, are deemed never to have been authenticated and delivered hereunder);


 


(c)                                     the
Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name the Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest;


 


(d)                                    the
date or dates on which the principal or installments of principal of any
Securities of the series is payable and any rights to extend such date or dates
and the duration of such extension;


 


24





















 


(e)                                     the
rate or rates (which may be fixed or variable) per annum at which the
Securities of the series will bear interest or the method by which such rate or
rates shall be determined, the date from which such interest will accrue or the
method by which such date or dates shall be determined and the right (if any)
to extend such dates and the duration of such extension;


 


(f)                                       the
obligation, if any, of the Company to redeem, repay or purchase any Securities
of the series pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof, and the period or periods within which, the price
or prices at which and the terms and conditions upon which any Securities of
the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;


 


(g)                                    if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which any Securities of the series shall be issuable;


 


(h)                                    if
other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.2 hereof;


 


(i)                                        if
other than such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public or private debts, the coin or
currency in which payment of the principal of (and premium, if any) and
interest, if any, on the Securities of the series shall be payable and the
manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition of “Outstanding”
in Section 1.1;


 


(j)                                        if
the principal of (and premium, if any) or interest, if any, on the Securities
of the series are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency other than that in which the Securities are
stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;


 


(k)                                     if
the amount of payments of principal of (and premium, if any) or interest, if
any, on the Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the Securities are
stated to be payable or pursuant to a formula, the manner in which such amounts
shall be determined;


 


(l)                                        any
provisions permitted by this Indenture relating to Events of Default or
covenants of the Company with respect to such series of Securities;


 


(m)                                  if
the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated
Maturity, the amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be
determined);


 


25


















 


(n)                                    if
applicable, that the Securities of the series, in whole or any specified part,
shall not be defeasible pursuant to Section 13.2 or Section 13.3 or
both such Sections and, if other than by a Company Order, the manner in which
any election by the Company to defease such Securities shall be evidenced;


 


(o)                                    if
applicable, that any Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the
respective Depositaries for such Global Securities, the form of any legend or
legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Exhibit A and any circumstances in addition to
or in lieu of those set forth in Sections 2.4, 3.4 and 3.5 in which any such
Global Security may be exchanged in whole or in part for Securities registered,
and any transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the Depositary for such Global
Security or a nominee thereof;


 


(p)                                    providing
collateral to the Trustee to secure payment of the principal of (and premium,
if any) and interest on the Securities of any series, and provisions for the
release of any such collateral; and


 


(q)                                    any
other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture), including, without limitation, any terms
required or appropriate to establish one or more series of Securities issued in
a Periodic Offering.


 


All Securities
of any one series (other than Securities offered in a Periodic Offering) shall
be substantially identical except as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
and set forth in the Officers’ Certificate referred to above or in any such
indenture supplemental hereto.


 


If any of the
terms of the series, including the form of Security of such series, are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action setting forth the terms of such series shall
be certified by the Secretary or an Assistant Secretary or other authorized
officer of the Company, and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.3 hereof for the
authentication and delivery of such series of Securities.


 


With respect
to Securities of a series offered in a Periodic Offering, such Board Resolution
and Officers’ Certificate or supplemental indenture may provide general terms
or parameters for Securities of such series and provide either that the
specific terms of particular Securities of such series shall be specified in a
Company Order or that such terms shall be determined by the Company or its
agents in accordance with other procedures specified in a Company Order as
contemplated by the third paragraph of Section 3.3.


 


Any terms or
provisions in respect of the Securities of any series issued under this
Indenture may be determined pursuant to this Section by providing in a
Board Resolution or supplemental indenture for the method by which such terms
or provisions shall be determined.


 


Section 3.2   Denominations.  The Securities of each series shall be
issuable in registered form without coupons, except as otherwise expressly
provided in an applicable


 


26





















 


Officers’ Certificate or a
supplemental indenture, in such denominations as shall be specified as
contemplated by Section 3.1 hereof. In the absence of any such provisions
with respect to the Securities of any series, the Securities of that series
shall be issuable only in U.S. dollars in fully registered form without coupons
in denominations of $1,000 and any integral multiple thereof.


 


Section 3.3   Execution, Authentication, Delivery and Dating.  The Securities shall be executed on behalf of
the Company by: its Chairman of the Board, its Vice Chairman of the Board, its
President, one of its Vice Presidents or its Treasurer.  The signature of any of these Officers on the
Securities may be manual or facsimile.


 


Securities
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers, employees or agents of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.


 


The Company
may at any time and from time to time after the execution and delivery of this
Indenture deliver Securities of any series executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, or, in the case of Securities
offered in a Periodic Offering, from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents,
promptly confirmed in writing by the Company) acceptable to the Trustee as may
be specified from time to time by a Company Order for the specific terms of the
Securities being so offered; and the Trustee shall, in accordance with a
Company Order, authenticate and make available for delivery such Securities as
provided in this Indenture and not otherwise.


 


Prior to any
such authentication and delivery, the Trustee shall be entitled to receive, in
addition to any Officers’ Certificate and Opinion of Counsel required to be
furnished to the Trustee pursuant to Section 1.2, the Board Resolution and
any certificate relating to the issuance of the series of Securities required
to be furnished pursuant to Section 2.2 and the Board Resolution and
Officers’ Certificate or supplemental indenture required to be furnished
pursuant to Section 3.1, and shall be fully protected in relying upon, an
Opinion of Counsel stating that:


 


(a)                                  if
the form or forms of such Securities have been established by or pursuant to
Board Resolution as permitted by Section 2.1 hereof, that such form has
been established in conformity with the provisions of this Indenture;


 


(b)                                 the
terms of such Securities have been established in conformity with the
provisions of this Indenture; and


 


(c)                                  such
Securities, when completed by appropriate insertions and executed and delivered
by the Company to the Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute the legal, valid and
binding obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency,


 


27





















 


reorganization
and other similar laws of general applicability relating to or affecting the
enforcement of creditors’ rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not materially affect
the rights of Holders of such Securities;


 


provided,
however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of Securities of such
series, and in such case the opinions described in clauses (b) and (c) above
may state, respectively, that


 


(i)                                  if the terms of
such Securities are to be established pursuant to a Company Order or pursuant
to such procedures as may be specified from time to time by a Company Order,
all as contemplated by a Board Resolution or action taken pursuant thereto,
such terms will have been duly authorized by the Company and established in
conformity with the provisions of this Indenture; and


 


(ii)                               that such Securities, when completed
by appropriate insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued and
delivered by the Company and paid for, all in accordance with any agreement of
the Company relating to the offering, issuance and sale of such Securities,
will be duly issued under this Indenture and will constitute the legal, valid
and binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other similar laws
of general applicability relating to or affecting generally the enforcement of
creditors’ rights, to general equitable principles and to such other
qualifications as such counsel shall conclude do not materially affect the
rights of Holders of such Securities;


 


and, if the
authentication and delivery relates to a new series of Securities created by an
indenture supplemental hereto, also stating that all laws and requirements with
respect to the form and execution by the Company of the supplemental indenture
with respect to that series of Securities have been complied with; the Company
has corporate power to execute and deliver any such supplemental indenture and
has taken all necessary corporate action for those purposes; and any such
supplemental indenture has been executed and delivered and constitutes the
legal, valid and binding obligation of the Company enforceable in accordance
with its terms subject to bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and to general principles of equity; and


 


(d)                                 that
no consent, approval, authorization, order, registration or qualification of or
with any court or any governmental agency or body having jurisdiction over the
Company is required for the execution and delivery of such Securities by the
Company, except such as have been obtained (except that no opinion need be
expressed as to the state securities or Blue Sky laws).


 


The Trustee
shall not be required to authenticate and deliver any such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee’s
own rights, duties


 


28





















 


or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.


 


Unless
otherwise provided in the form of Security for any series, all Securities shall
be dated the date of their authentication.


 


No Security
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein manually executed
by the Trustee or an Authenticating Agent, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, together with a written statement
(which need not comply with Section 1.2 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.


 


Section 3.4   Temporary Securities.  Pending the preparation of definitive
Securities of any series, the Company may execute, and, upon receipt of the
documents required by Section 3.3, together with a Company Order, the
Trustee shall authenticate and make available for delivery, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officer or officers executing such Securities may determine, as evidenced by
their execution of such Securities.


 


If temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge to
the Holder; and upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor and aggregate principal amount. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.


 


Upon any
exchange of a portion of a temporary Global Security for a definitive Global
Security or for the individual Securities represented thereby pursuant to this Section 3.4
or Section 3.5, the temporary Global Security shall be endorsed by the Trustee
to reflect the reduction of the principal amount evidenced thereby, whereupon
the principal amount of such temporary Global Security shall be reduced for all
purposes by the amount so exchanged and endorsed.


 


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Section 3.5   Registration,
Transfer and Exchange.  The Company shall keep or cause the Security
Registrar to keep a register (herein sometimes referred to as the “Security Register”) in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities, or of Securities of a particular series, and
for transfers of Securities or of Securities of such series; provided, however,
that there shall be only one Securities Register for each series of
Securities.  Any such register shall be
in written form or in any other form capable of being converted into written
form within a reasonable time.  If a
Person other than the Trustee maintains any such Security Register, at all
reasonable times the information contained in such register or registers shall
be available for inspection by the Trustee at the office or agency to be
maintained by the Company as provided in Section 10.2.


 


Subject to Section 2.4,
upon surrender for registration of transfer of any Security of any series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee or its agent shall authenticate and make
available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like tenor, aggregate principal amount and Stated
Maturity.


 


Subject to Section 2.4,
at the option of the Holder, unless otherwise provided with respect to any
series of Securities pursuant to Section 3.1, Securities of any series may
be exchanged for other Securities of the same series of any authorized
denominations and of a like tenor, aggregate principal amount and Stated
Maturity, upon surrender of the Securities to be exchanged at such office or
agency maintained by the Company in any Place of Payment for such series.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee or its agent shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.


 


All Securities
issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.


 


Every Security
presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Security Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.


 


Unless
otherwise provided in the Security to be registered for transfer or exchange,
no service charge shall be imposed on any Holder for any registration of
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Security) require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with
registration of any transfer or exchange of Securities, other than exchanges
pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.


 


The Company
may but shall not be required (i) to issue, register the transfer of or
exchange any Security of any series during a period beginning at the opening of
business 15 days


 


30





















 


before the day of the mailing of a notice of redemption of Securities
of such series selected for redemption under Section 11.3 and ending at
the close of business on the date of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except for the portion of such Security not so selected for redemption.


 


None of the
Company, the Trustee, any agent of the Company or Trustee, (including any
Paying Agent or the Security Registrar) will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.


 


None of the
Company, the Trustee or any agent of the Company or the Trustee shall have any
responsibility or obligation to any participant in the Depositary, any Person
claiming a beneficial ownership interest in the Securities under or through the
Depositary or any such participant, or any other Person which is not shown on
the Security Register as being a Holder, with respect to (1) the
Securities; (2) the accuracy of any records maintained by the Depositary
or any such participant; (3) the payment by the Depositary or any such
participant of any amount in respect to the principal of or premium or interest
on the Securities; (4) any notice which is permitted or required to be
given to Holders of Securities under this Indenture; or (5) any consent
given or other action taken by the Depositary as Holder of Securities.


 


The Trustee
shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture, the
Securities or applicable law with respect to any transfer of any interest in
any Security (including any transfers between or among Depositary participants
or owners of beneficial interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence, if any, as
are expressly required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.


 


The Company
initially appoints the Trustee to act as Security Registrar for the Securities
on its behalf. The Company may at any time and from time to time authorize any
Person to act as Security Registrar in place of the Trustee with respect to any
series of Securities issued under this Indenture.


 


Section 3.6   Mutilated,
Destroyed, Lost and Stolen Securities.  If (a) any mutilated Security is
surrendered to the Trustee or the Company, or the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and (b) there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them and their
agents harmless, then, in the absence of actual notice to the Company and the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee or its agents shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for such mutilated Security, a new Security of like
tenor, series, Stated Maturity and principal amount, bearing a number not
contemporaneously Outstanding.


 


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In case any
such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.


 


Upon the
issuance of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee, any Paying Agent and any Securities Registrar)
connected therewith.


 


Every new
Security of any series issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security or in exchange for such mutilated Security
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and such new Security shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of the same series duly issued hereunder.


 


The provisions
of this Section are exclusive and shall preclude (to the extent lawful)
all other rights and remedies of any Holder with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.


 


Section 3.7   Payment of
Interest; Interest Rights Preserved.  Unless otherwise provided with respect to any
series of Securities pursuant to Section 3.1, interest on any Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.


 


Any interest
on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease
to be payable to the Holder on the relevant Regular Record Date by virtue of
its having been such Holder; and, except as hereinafter provided, such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or clause (b) below:


 


(a)                                  The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner.  The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each such Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. 
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the


 


32





















 


proposed
payment.  The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given to each
Holder of such series in the manner set forth in Section 1.6, not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (b).


 


(b)                                 The
Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.


 


Subject to the
foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of, or in exchange for, or in lieu of
any other Security, shall carry the rights to interest accrued and unpaid, and
to accrue, which rights were carried by such other Security.


 


Section 3.8   Persons Deemed Owners.  Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of such Security as its owner for
the purpose of receiving payment of principal of (and premium, if any), and
(subject to Section 3.7) interest on, such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.


 


None of the
Company, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.


 


No holder of
any beneficial interest in any Global Security held on its behalf by a
Depositary (or its nominee) shall have any rights under this Indenture with
respect to such Global Security or any Security represented thereby, and such
Depositary may be treated by the Company, the Trustee, and any agent of the
Company or the Trustee as the owner of such Global Security or any Security
represented thereby for all purposes whatsoever.


 


Notwithstanding
the foregoing, with respect to any Global Security, nothing herein shall
prevent the Company, the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary, as a Holder, with respect to such Global Security
or shall impair, as between such Depositary and owners of beneficial interests
in such Global Security, the operation of customary


 


33





















 


practices governing the
exercise of the rights of such Depositary (or its nominee) as Holder of such
Global Security.


 


Section 3.9   Cancellation.  All Securities surrendered for payment,
redemption, repurchase, registration of transfer, conversion or exchange or for
credit against any sinking fund, if any, shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee.  No Security shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this Section, except
as expressly permitted by this Indenture. 
All cancelled Securities held by the Trustee shall be disposed of in
accordance with the Trustee’s then customary practice for disposing of
securities, unless otherwise directed by a Company Order and subject to any
applicable document retention requirements of the Commission.


 


Section 3.10   Computation
of Interest. 
Unless otherwise provided as contemplated in Section 3.1, interest
on the Securities of any series shall be calculated on the basis of a 360-day
year of twelve 30-day months.


 


Section 3.11   Periodic
Offering of Securities.  Notwithstanding any contrary provision
herein, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary for the Company to deliver to the Trustee an
Officers’ Certificate, Board Resolution, supplemental indenture, Opinion of
Counsel or Company Request otherwise required pursuant to Sections 2.2, 3.1 and
3.3 at or prior to the time of authentication of each Security of such series
if such documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first Security of such series to
be issued; provided that any subsequent request by the Company to the Trustee
to authenticate Securities of such series upon original issuance shall
constitute a representation and warranty by the Company and its counsel that as
of the date of such request, the statements made in the Officers’ Certificate
and opinions made in the Opinion of Counsel delivered pursuant to Section 1.2
and 3.3, respectively, were true and correct as if made on such date.


 


An Officers’
Certificate, supplemental indenture or Board Resolution delivered by the
Company to the Trustee in the circumstances set forth in the immediately
preceding paragraph may provide that Securities which are the subject thereof
will be authenticated and delivered by the Trustee or its agent on original
issue from time to time upon the written order of a person or persons
designated in such Officers’ Certificate, supplemental indenture or Board
Resolution and that such person or persons are authorized to determine, consistent
with such Officers’  Certificate,
supplemental indenture or Board Resolution, such terms and conditions of the
Securities as are specified in such Officers’ Certificate, supplemental
indenture or Board Resolution.


 


Section 3.12   CUSIP Numbers.  The Company in issuing the Securities may use
“CUSIP”, “ISIN” or other similar numbers (if then generally in use) in addition
to serial


 


34





















 


numbers, and, if so, the
Trustee shall use “CUSIP,” “ISIN” or such other numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such “CUSIP”, “ISIN” or
other numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in such “CUSIP”, “ISIN” or other
numbers.


 


ARTICLE 4


 


Satisfaction and
Discharge


 


Section 4.1   Satisfaction
and Discharge of Indenture.  This Indenture shall, upon Company Request,
cease to be of further effect with respect to any series of Securities (except
as to any surviving rights of registration of transfer or exchange or
replacement of Securities of such series expressly provided for herein or in
the form of security for such series), and the Trustee, on written demand of
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when


 


(a)                                  either


 


(i)                                     all Securities
of that series theretofore authenticated and delivered (other than (1) Securities
of such series which have been mutilated, destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6, and (2) Securities
of such series for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such Trust, as provided in Section 10.3) have
been delivered to the Trustee or its agent cancelled or for cancellation; or


 


(ii)                                  all such Securities of that series
not theretofore delivered to the Trustee or its agent for cancellation


 


(1)           have become due and
payable,


 


(2)           will
become due and payable at their Stated Maturity within one year,


 


(3)           are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, or


 


(4)           are
deemed paid and discharged pursuant to Section 13.2, as applicable,


 


and the
Company, in the case of (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
cancelled or for cancellation, for principal (and premium, if any)


 


35





















 


and interest
to the date of such deposit (in the case of Securities which have become due
and payable), or to the Stated Maturity or Redemption Date, as the case may be;


 


(b)                                 the
Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to the Securities of such series; and


 


(c)                                  the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture with respect to
the Securities of such series have been complied with.


 


Notwithstanding the
satisfaction and discharge of this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee with respect to such
series under Section 6.7, the obligations of the Company to any
Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Trustee under Sections 4.2 and 10.3 shall
survive.


 


Section 4.2   Application
of Trust Money. 
Subject to the provisions of the last paragraph of Section 10.3 and
Section 6.7, all money deposited with the Trustee pursuant to Section 4.1
shall be held in trust and applied by it, in accordance with the provisions of
the series of Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee.


 


ARTICLE 5


 


Remedies


 


Section 5.1   Events of Default.  “Event of
Default,” wherever used herein with respect to Securities of any
series, and unless otherwise provided with respect to Securities of any series
pursuant to Section 3.1(l), means any one of the following events
(whatever the reason for such Event of Default and whether it is voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is either inapplicable
to a particular series (to the extent expressly provided in the form of
Security for such series) or it is specifically deleted or modified in the
supplemental indenture creating such series of Securities or in the form of
Security for such series:


 


(a)                                  default
by the Company in the payment of any principal (or premium, if any) of the
Securities of that series when due and payable, whether at Maturity or
otherwise; or


 


(b)                                 default
by the Company in the payment of any interest upon any Security of that series
when it becomes due and payable, and the continuance of such default for a
period of 30 consecutive days; or


 


36





















 


(c)                                  default
in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series; or


 


(d)                                 default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance of
such default in the performance or breach for a period of 60 consecutive days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice
of Default” hereunder; or


 


(e)                                  a
default under any Indebtedness by the Company or any Subsidiary (including a
default with respect to Securities of any series other than that series) or
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness by the Company
(including this Indenture) or any Subsidiary, whether such Indebtedness now
exists or shall hereafter be created, in an aggregate principal amount
exceeding $15,000,000 (or its equivalent in any other currency or currencies)
which default shall have resulted in such Indebtedness becoming or being
declared due and payable prior to maturity; or


 


(f)                                    the
entry by a court having jurisdiction in the premises of (A) a decree or
order for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under
any applicable Federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its Property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or


 


(g)                                 the
commencement by the Company of a voluntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its Property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its


 


37





















 


inability to
pay its debts generally as they become due, or the taking of corporate action
by the Company in furtherance of any such action; or


 


(h)                                 any
other Event of Default provided with respect to Securities of that series
pursuant to Sections 3.1 or 9.1.


 


Section 5.2   Acceleration
of Maturity; Rescission and Annulment.  If an Event of Default (other than an Event
of Default specified in Section 5.1(f) or 5.1(g)) with respect to
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of that series may declare the
aggregate principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such lesser
portion of the aggregate principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such aggregate principal amount (or specified amount)
shall become immediately due and payable. 
If an Event of Default specified in Section 5.1(f) or 5.1(g) with
respect to Securities of any series at the time Outstanding occurs, the
aggregate principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such lesser
portion of the aggregate principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.


 


At any time
after such a declaration of acceleration with respect to Outstanding Securities
of any series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series, by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences if:


 


(a)                                  the
Company has paid or deposited with the Trustee a sum sufficient to pay


 


(i)                                     all overdue
interest on all Securities of that series,


 


(ii)                                  the principal
of (and premium, if any, on) any Securities of that series which have become
due otherwise than by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,


 


(iii)                               to the extent
that payment of such interest is lawful, interest upon overdue interest at the
rate or rates prescribed therefor in such Securities, and


 


(iv)                              all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and


 


(b)                                all Events of Default
with respect to Securities of that series, other than the non-payment of the
principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 5.13.


 


38





















 


No such rescission shall affect
any subsequent default or impair any right consequent thereon.


 


Section 5.3   Collection
of Indebtedness and Suits for Enforcement by Trustee.  The Company covenants that if:


 


(a)                                 default is made in the
payment of any interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days, or


 


(b)                                default is made in the
payment of the principal of (or premium, if any, on) any Security at the
Maturity thereof,


 


then the Company will, upon
written demand of the Trustee, pay to the Trustee, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


 


If the Company
fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding
to judgment or final decree and may enforce the same against the Company or any
other obligor upon the Securities and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the Property of the Company or
any other obligor upon the Securities, wherever situated.


 


If an Event of
Default with respect to Securities of any series occurs and is continuing, the
Trustee may at its discretion proceed to protect and enforce its rights and the
rights of the Holders of such series by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.


 


Section 5.4   Trustee May File
Proofs of Claim. 
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, moratorium of payments, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other
obligor upon the Securities or the Property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of, and any interest on, the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceedings or otherwise,


 


(a)                                 to file and prove a
claim for the whole amount of principal (and premium, if any) and interest
owing and unpaid in respect of the Securities and take such other actions,
including participating as a member, voting or otherwise, of any official


 


39





















 


committee of creditors appointed in such
matter, to file such other papers or documents as may be necessary and
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee under Section 6.7)
and of the Holders allowed in such judicial proceeding, and


 


(b)                                to collect and receive
any moneys or other property payable or deliverable on any such claims and to
distribute the same;


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official, in any
such judicial proceeding is hereby authorized by each Holder to make such
payment to the Trustee and, in the event that the Trustee consents to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.


 


Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of such Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or
other similar committee.


 


Section 5.5   Trustee May Enforce
Claims Without Possession of Securities.  All rights of action and claims under this
Indenture or the Securities of any series may be prosecuted and enforced by the
Trustee without the possession of any of the Securities of such series or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel, be for the ratable benefit of the Holders
of the Securities of the series in respect of which such judgment has been
recovered.


 


Section 5.6   Application
of Money Collected.  Any money collected by the Trustee with
respect to a series of Securities pursuant to this Article 5 and any other
money or property distributable in respect of the Company’s obligations under
this Indenture after an Event of Default shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or other property on account of principal (or
premium, if any) or interest, upon presentation of the Securities of such
series and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:


 


FIRST:  To the payment of all amounts due the Trustee
(including any predecessor Trustee) under Section 6.7; and


 


SECOND:  To the payment of the amounts then due and
unpaid upon the Securities of that series for principal (and premium, if any)
and interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of


 


40





















 


any kind, according to the amounts due and payable on such Securities
for principal (and premium, if any) and interest, respectively.


 


The Trustee
may fix a record date for any payment pursuant to this Section.


 


Section 5.7   Limitation on Suits.  No Holder of any Security of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless


 


(a)                                  such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to Securities of such series;


 


(b)                                 the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;


 


(c)                                  such
Holder or Holders have furnished to the Trustee indemnity satisfactory to the
Trustee against the costs, expenses and liabilities to be incurred in
compliance with such request;


 


(d)                                 the
Trustee for 60 days after its receipt of such notice, request and furnishing of
indemnity has failed to institute any such proceeding; and


 


(e)                                  no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such series;


 


it being understood and
intended that no one or more Holders of Securities of such series shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of such series, or to obtain or to seek to obtain
priority or preference over any other such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all the Holders of all Securities of such series.


 


Section 5.8   Unconditional
Right of Holders to Receive Principal, Premium and Interest.  Notwithstanding any other provisions in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Sections 3.7 and 12.1) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption or repayment, on the Redemption Date or Repayment Date, as the case
may be) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.


 


Section 5.9   Restoration
of Rights and Remedies.  If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee


 


41





















 


and the Holders shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had
been instituted.


 


Section 5.10   Rights and
Remedies Cumulative.  Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
in the last paragraph of Section 3.6, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.


 


Section 5.11   Delay or
Omission Not Waiver.  No delay in exercising or omission to
exercise any remedy, right or power accruing upon the occurrence of any Event
of Default shall impair the remedy, right or power, or shall be construed to be
a waiver of any Event of Default or acquiescence therein.  Every remedy, right and power may be
exercised from time to time and as often as may be deemed to be expedient.  No waiver of any Event of Default, whether by
the Trustee or by the Holders, shall extend to or shall affect any subsequent
Event of Default or shall impair any remedy, right or power consequent thereon.


 


Section 5.12   Control by Holders.  The Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided that


 


(a)                                  the
Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action so directed may
not lawfully be taken or would conflict with this Indenture or would involve
the Trustee in personal liability;


 


(b)                                 the
Trustee shall not determine that the action so directed would be unjustly
prejudicial to Holders not taking part in such action;


 


(c)                                  such
direction shall be presented by such Holders to the Trustee in a timely manner;
and


 


(d)                                 the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.


 


Section 5.13   Waiver of Defaults.  The Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past or
existing default hereunder with respect to such series and its consequences,
except a default not theretofore cured


 


42





















 


(a)                                  in
the payment of the principal of (or premium, if any) or interest on any
Security of such series, or in the payment of any sinking or purchase fund or
analogous obligation with respect to the Securities of such series, or


 


(b)                                 in
respect of a covenant or provision hereof which under Article 9 cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected.


 


Upon any such
waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.


 


Section 5.14   Undertaking
for Costs. 
All parties to this Indenture agree, and each Holder of any Security by
such Holder’s acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 5.14 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series to which the suit relates against the
Company and not the Trustee, or to any suit instituted by any Holder against
the Company and not the Trustee for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date).


 


Section 5.15   Waiver of
Stay or Extension Laws.  The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


ARTICLE 6


 


The
Trustee


 


Section 6.1   Certain
Duties and Responsibilities.  (a) Except during the continuance of an
Event of Default with respect to any series of Securities,


 


43





















 


(i)                                     the Trustee
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture with respect to the Securities of such series, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and


 


(ii)                                  in the absence
of bad faith on its part, the Trustee may, with respect to Securities of such
series, conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations, or other facts or contents stated
therein).


 


(b)                                 If
an Event of Default with respect to any series of Securities has occurred and
is continuing, the Trustee shall exercise with respect to the Securities of
such series such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.


 


(c)                                  No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that


 


(i)                                this subsection (c) shall
not be construed to limit the effect of subsections (a) or (d) of
this Section 6.1;


 


(ii)                             the Trustee
shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and


 


(iii)                          the Trustee
shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of any series (or
such lesser percentage as provided in this Indenture) relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such series.


 


(d)                                 No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.


 


(e)                                  Whether
or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section 6.1.


 


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Section 6.2   Notice of Defaults.  Within 90 days after the Trustee has received
written notice of any default hereunder with respect to Securities of any
series, the Trustee shall transmit by mail to all Holders of such series, as
their names and addresses appear in the Security Register, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest, if
any, on any Security of such series, or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of such series; and provided  further
that in the case of any default of the character specified in Section 5.1(d) with
respect to Securities of such series, no such notice to Holders of such series
shall be given until at least 30 days after the occurrence thereof.  For the purpose of this Section 6.2, the
term “default,” with respect to
Securities of any series, means any event which is, or after notice or lapse of
time or both would become, an Event of Default with respect to Securities of
such series.


 


Section 6.3   Certain
Rights of Trustee. 
Except as otherwise provided in Section 6.1:


 


(a)                                  the
Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any resolution, Officers’ Certificate or other certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note or other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;


 


(b)                                 any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;


 


(c)                                  whenever
in the administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon an Officers’ Certificate;


 


(d)                                 the
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;


 


(e)                                  the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holder shall have furnished to
the Trustee security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;


 


45





















 


(f)                                    the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
sole discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled upon reasonable request
to examine the books, records and premises of the Company, personally or by
agent or attorney;


 


(g)                                 the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;


 


(h)                                 the
Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;


 


(i)                                     the
Trustee shall not be charged with knowledge of any default (as defined in Section 6.2)
or Event of Default with respect to the Securities of any series, as the case
may be, unless either (i) written notice of such default or Event of
Default, as the case may be, shall have been given to a Responsible Officer of
the Trustee at the Corporate Trust Office of the Trustee from the Company, any
other obligor on the Securities or from any Holder of such Securities in
accordance with Section 1.5 hereof and such notice references this
Indenture or the Securities or (ii) a Responsible Officer of the Trustee
shall have actual knowledge of such default or Event of Default, as the case
may be;


 


(j)                                     the
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and to each agent, custodian and other Person employed to act hereunder; and


 


(k)                                  the
permissive right of the Trustee to take or refrain from taking any actions
enumerated in this Indenture shall not be construed as a duty.


 


Section 6.4   Not
Responsible for Recitals or Issuance of Securities.  The recitals contained herein and in the
Securities (except the Trustee’s certificates of authentication) shall be taken
as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. Neither
the Trustee nor any Authenticating Agent makes any representations as to the
validity or sufficiency of this Indenture or of the Securities.  Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.


 


Section 6.5   May Hold Securities.  The Trustee, any Authenticating Agent, any
Paying Agent, the Security Registrar or any other agent of the Company or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Company with the same rights it would have


 


46





















 


if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.


 


The Trustee
may become and act as Trustee under other indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding in the same manner as if it were not Trustee
hereunder.


 


Section 6.6   Money Held in Trust.  Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by
law.  The Trustee shall be under no
liability for interest on or, except as otherwise expressly provided herein,
investment of, any money received by it hereunder except as the Trustee has
otherwise agreed in writing with the Company.


 


Section 6.7   Compensation
and Reimbursement. 
The Company agrees


 


(a)                                  to
pay to the Trustee from time to time such reasonable compensation as the
Company and the Trustee shall from time to time agree to in writing for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);


 


(b)                                 except
as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, including taxes (other than taxes based
upon, measured by, or determined by the income of the Trustee), disbursements
and advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, bad faith or willful
misconduct; and


 


(c)                                  to
indemnify the Trustee and its directors, officers, employees and agents (each
an “Indemnified Party”) for, and hold each Indemnified Party harmless from and
against any loss, damage, claim, liability or expense (including reasonable
attorney’s fees and expenses) incurred without negligence, bad faith or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the exercise or performance
of the Trustee’s duties hereunder, including the reasonable costs and expenses
(including reasonable attorney’s fees and expenses) of defending itself against
any claim or liability in connection with the exercise or performance of any of
the Trustee’s powers or duties hereunder, or in enforcing the provisions of
this Section.  The Trustee shall notify
the Company promptly of any claim asserted against an Indemnified Party; provided,
however, that failure to so notify the Company shall not relieve the Company of
its obligations under this Section.  The
Company may, subject to the approval of the Trustee (which approval shall not
be unreasonably withheld), defend the claim and the Trustee shall cooperate in
the defense.  Indemnified Parties may
have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel; provided however,
that the Company will not be required to pay such fees and expenses if, subject
to the approval of the Trustee (which approval shall not be unreasonably
withheld), it assumes the Trustee’s defense and there is no conflict of
interest between the Company and the Indemnified Parties in connection


 


47





















 


with such
defense as solely determined by the Trustee; and, provided further however, that notwithstanding the
foregoing, if the failure to provide separate counsel to the Trustee in any
action or proceeding, in the sole judgment of the Trustee, would jeopardize the
reputation or name or otherwise materially adversely affect the business
interest of the Trustee, the Trustee shall be entitled to separate counsel, the
fees and expenses in respect of which shall be borne by the Company.  The Company need not pay for any settlement
made without its written consent (which consent shall not be unreasonably
withheld).  The Company need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through negligence, bad faith or willful misconduct.


 


The
obligations of the Company under this Section 6.7 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless each Indemnified Party shall
constitute additional Indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture, the resignation or removal of the Trustee and
the termination of this Indenture for any reason. As security for the
performance of the obligations of the Company under this Section, the Trustee
shall have a lien prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any) or interest on particular Securities.


 


In addition
and without prejudice to the rights provided to the Trustee under any of the
provisions of this Indenture, when the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 5.1(f) or
Section 5.1(g), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.


 


Any Securities
Registrar, Paying Agent or Authenticating Agent appointed hereunder shall be
entitled to the benefits of Section 6.7(c) as if the indemnity set
forth therefor were specifically afforded to such Securities Registrar, Paying
Agent or Authenticating Agent.


 


“Trustee” for
purposes of this Section shall include any predecessor Trustee and the
Trustee in each of its capacities hereunder and to each agent, custodian and
other person employed to act hereunder; provided, however, that the negligence,
willful misconduct or bad faith of any Trustee hereunder shall not affect the
rights of any other Trustee hereunder.


 


The provisions
of this Section shall survive the satisfaction and discharge of this
Indenture, the resignation or removal of the trustee and the termination of
this Indenture.


 


Section 6.8   Disqualification;
Conflicting Interests.  The Trustee for the Securities of any series
issued hereunder shall be subject to the provisions of Section 310(b) of
the Trust Indenture Act (which, for the purposes of this Section 6.8,
shall be deemed to be applicable regardless of the qualification of this
Indenture under the Trust Indenture Act) during the period of time provided for
therein.  In determining whether the
Trustee has a conflicting interest as defined in Section 310(b) of
the Trust Indenture Act with respect to the Securities of any series, there
shall be excluded for purposes of the conflicting interest provisions of such Section 310(b) the
Securities of every other series issued under this Indenture.  Nothing herein


 


48





















 


shall prevent the Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.


 


Section 6.9   Corporate
Trustee Required; Eligibility.  There shall at all times be a Trustee
hereunder with respect to the Securities of each series, which may be Trustee
hereunder for Securities of one or more other series.  Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. 
If any such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.  If at any time the Trustee with respect to
the Securities of any series shall cease to be eligible in accordance with the
provisions of this Section 6.9, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article 6.


 


Section 6.10   Resignation
and Removal; Appointment of Successor.  (a) No resignation or removal of the
Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
under Section 6.11.


 


(b)                                    The
Trustee may resign at any time with respect to any one or more series of
Securities by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee required by Section 6.11 hereof shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.


 


So long as no
Event of Default or event which, after notice or lapse of time, or both, would
become an Event of Default has occurred and is continuing, if the Company has
delivered to the Trustee a resolution of its Board of Directors appointing a
successor trustee and such successor has accepted such appointment in
accordance with the terms of Section 6.11 hereof, the Trustee will be
deemed to have resigned and the successor will be deemed to have been appointed
as trustee.


 


(c)                                     The
Trustee may be removed at any time with respect to any one or more series of
Securities by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of that series, delivered to the Trustee and to the
Company. If the instrument of acceptance by a successor Trustee required by Section 6.11
hereof shall not have been delivered to the Trustee within 30 days after the
delivery of such Act, the removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.


 


(d)                                    The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of that series as their names and addresses


 


49





















 


appear in the Security
Register.  Each notice shall include the
name of the successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.


 


Section 6.11   Acceptance
of Appointment by Successor.  Every successor Trustee appointed hereunder
shall execute, acknowledge and deliver to the Company and to the predecessor
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the predecessor Trustee shall become effective with respect to
any series as to which it is resigning or being removed as Trustee, and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the predecessor
Trustee with respect to any such series; but, on request of the Company or the
successor Trustee, such predecessor Trustee shall, upon payment of its
reasonable charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the predecessor Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such predecessor Trustee hereunder with respect to
all or any such series, subject nevertheless to its lien provided for in Section 6.7.  Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.


 


In case of the
appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the predecessor Trustee and each
successor Trustee with respect to the Securities of such one or more series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the predecessor Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (ii) if the predecessor Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Securities of that or those series as
to which the predecessor Trustee is not retiring shall continue to be vested in
the predecessor Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall deem
such Trustees to be co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or
removal of the predecessor Trustee shall become effective to the extent
provided therein and each such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but,
on request of the Company or any successor Trustee, such predecessor Trustee
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such predecessor Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates, subject nevertheless to its lien provided for in Section 6.7.


 


50





















 


Upon request
of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.


 


No successor
Trustee with respect to any series of Securities shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible with respect to that series under this Article 6.


 


Section 6.12   Merger,
Conversion, Consolidation or Successor to Business.  Any Person into which the Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and make available for delivery the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.


 


Section 6.13   Preferential
Collection of Claims Against Company.  (a) Subject to subsection (b) of
this Section, if the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within three months prior to a
default, as defined in subsection (c) of this Section, or subsequent
to such a default, then, unless and until such default shall be cured, the
Trustee shall set apart and hold in a special account for the benefit of the
Trustee individually, the Holders of the Securities and the holders of other
indenture securities (as defined in subsection (c) of this Section):


 


(i)                                     an amount equal
to any and all reductions in the amount due and owing upon any claim as such
creditor in respect of principal or interest, effected after the beginning of
such three-month period and valid as against the Company and its other creditors,
except any such reduction resulting from the receipt or disposition of any
property described in paragraph (ii) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon the date
of such default; and


 


(ii)                                  all property
received by the Trustee in respect of any claim as such creditor, either as
security therefor, or in satisfaction or composition thereof, or otherwise,
after the beginning of such three-month period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however, to the rights,
if any, of the Company and its other creditors in such property or such
proceeds.


 


Nothing herein contained,
however, shall affect the right of the Trustee


 


(1)                                  to
retain for its own account (x) payments made on account of any such claim by
any Person (other than the Company) who is liable thereon, and (y) the proceeds
of the bona fide sale of any such claim by the Trustee to a third person, and
(z)


 


51





















 


distributions
made in cash, securities or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings for reorganization pursuant
to the Federal Bankruptcy Act, or applicable state law;


 


(2)                                  to
realize, for its own account, upon any property held by it as security for any
such claim, if such property was so held prior to the beginning of such
three-month period;


 


(3)                                  to
realize, for its own account, but only to the extent of the claim hereinafter
mentioned, upon any property held by it as security for any such claim, if such
claim was created after the beginning of such three-month period and such
property was received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving that at the
time such property was so received the Trustee had no reasonable cause to
believe that a default as defined in subsection (c) of this Section would
occur within three months; or


 


(4)                                  to
receive payment on any claim referred to in paragraph (2) or (3), against
the release of any property held as security for such claim as provided in
paragraph (2) or (3), as the case may be, to the extent of the fair value
of such property.


 


For the
purpose of paragraphs (2), (3) and (4), property substituted after the
beginning of such three-month period for property held as security at the time
of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent
that any claim referred to in any of such paragraphs is created in renewal of
or in substitution for or for the purpose of repaying or refunding any
pre-existing claim of the Trustee as such creditor, such claim shall have the
same status as such pre-existing claim.


 


If the Trustee
is required to account for the assets of its trust, the funds and property held
in such special account and the proceeds thereof shall be apportioned between
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable state law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on
account of the receipt by it from the Company of the funds and property in such
special account and before crediting to the respective claims of the Trustee
and the Holders and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable state law, but after crediting thereon receipts on account of the
Indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term “dividends” shall include any distribution
with respect to such claim, in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable state law,
whether such distribution is made in cash, securities, or other property, but
shall not include any such distribution with respect to the secured portion, if
any, of such claim. The court in which such


 


52





















 


bankruptcy, receivership or proceeding for reorganization is pending
shall have jurisdiction (i) to apportion between the Trustee and the
Holders and the holders of other indenture securities in accordance with the
provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such apportionment, in whole
or in part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and the
Holders and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such
claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.


 


Any Trustee
which has resigned or been removed after the beginning of such three-month
period shall be subject to the provisions of this subsection as though
such resignation or removal had not occurred. If any Trustee has resigned or
been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this subsection if and only if the following
conditions exist:


 


(i)                                     the receipt of
property or reduction of claim, which would have given rise to the obligation
to account, if such Trustee had continued as Trustee, occurred after the
beginning of such three-month period; and


 


(ii)                                  such receipt of
property or reduction of claim occurred within three months after such
resignation or removal.


 


(b)                                 There
shall be excluded from the operation of subsection (a) of this Section 6.13
a creditor relationship arising from


 


(1)                                  the
ownership or acquisition of securities issued under any indenture, or any
security or securities having a maturity of one year or more at the time of
acquisition by the Trustee;


 


(2)                                  advances
authorized by a receivership or bankruptcy court of competent jurisdiction, or
by this Indenture, for the purpose of preserving any property which shall at
any time be subject to the lien of this Indenture or of discharging tax liens
or other prior liens or encumbrances on the trust estate, if notice of such
advances and of the circumstances surrounding the making thereof is given to
the Holders at the time and in the manner provided in this Indenture;


 


(3)                                  disbursements
made in the ordinary course of business in the capacity of trustee under an
indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or
depositary, or other similar capacity;


 


(4)                                  an
Indebtedness created as a result of services rendered or premises rented; or an
Indebtedness created as a result of goods or securities sold in a cash
transaction as defined in subsection (c) of this Section 6.13;


 


53





















 


(5)                                  the
ownership of stock or of the other securities of a Corporation organized under
the provisions of Section 25(a) of the Federal Reserve Act, as
amended, which is directly or indirectly a creditor of the Company; or


 


(6)                                  the
acquisition, ownership, acceptance or negotiation of any drafts, bills of
exchange, acceptances or obligations which fall within the classification of
self-liquidating paper as defined in subsection (c) of this Section 6.13.


 


(c)                                  For
the purpose of this Section 6.13 only:


 


(1)                                  The term “default” means any
failure to make payment in full of the principal of or interest on any of the
Securities or upon the other indenture securities when and as such principal or
interest becomes due and payable.


 


(2)                                  The term “other
indenture securities” means securities upon which the Company is an
obligor (as defined in the Trust Indenture Act) outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this Section 6.13
and (iii) under which a default exists at the time of the apportionment of
the funds and property held in such special account.


 


(3)                                  The term “cash
transaction” means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand.


 


(4)                                  The term “self-liquidating
paper” means any draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.


 


(5)                                  The term “Company” means any
obligor upon the Securities.


 


(6)                                     The
term “Federal Bankruptcy Act”
means the Bankruptcy Code or Title 11 of the United States Code.


 


Section 6.14   Appointment
of Authenticating Agent.  From time to time the Trustee, in its sole
discretion, may appoint one or more Authenticating Agents with respect to one
or more series of Securities with power to act on the Trustee’s behalf and
subject to its direction in the authentication and delivery of Securities of
such series or in connection with transfers and exchanges under Sections 3.4,
3.5, 3.6 and 11.7 hereof as fully to all intents and purposes as though the
Authenticating Agent had been expressly authorized by those Sections of this
Indenture to authenticate and deliver Securities of such series. For all
purposes of this 


 


54





















 


Indenture, the authentication
and delivery of Securities by an Authenticating Agent pursuant to this Section 6.14
shall be deemed to be authentication and delivery of such Securities “by the
Trustee”. Each such Authenticating Agent shall be acceptable to the Company and
shall at all times be a Corporation organized and doing business under the laws
of the United States, any state thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by Federal, state or District of Columbia authority. If such Corporation
publishes reports of condition at least annually pursuant to law or the
requirements of such authority, then for the purposes of this Section 6.14
the combined capital and surplus of such Corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section 6.14, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 6.14.


 


Any
Corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any Corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible
under this Section 6.14, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.


 


An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and, if other than the Company, to the Company.  The Trustee may at any time terminate the
appointment of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and, if other than the Company, to the Company. Upon
receiving such a notice of resignation or upon each a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section 6.14, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 6.14.


 


The Company
agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be
entitled to be reimbursed for any payments made by it subject to the provisions
of Section 6.7.


 


If an
appointment with respect to one or more series of Securities is made pursuant
to this Section 6.14, the Securities of such series may have endorsed
thereon, in addition to the Trustee’s certificate of authentication, an
alternate certificate of authentication in the following form:


 


55





















 


This is one of
the Securities of the series designated therein referred to in the within-mentioned
Indenture.


 


	
  Dated:

  	
   

  	
   

  	
  BNY MIDWEST
  TRUST COMPANY, 

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  as Authenticating Agent

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  



 


ARTICLE 7


 


Holders’ Lists
and Reports by Trustee and Company


 


Section 7.1   Company to
Furnish Trustee Names and Addresses of Holders.  The Company will furnish or cause to be
furnished to the Trustee with respect to the Securities of each series


 


(a)                                     semi-annually,
not later than 15 days after each Regular Record Date, or, in the case of any
series of Securities on which semi-annual interest is not payable, not more
than 15 days after such semi-annual dates as may be specified by the Trustee, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date or semi-annual date, as
the case may be, and


 


(b)                                    at such other times
as the Trustee may request in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished, provided,
however, that if and so long as the Trustee is Security Registrar for
any series of Securities, no such list shall be required to be furnished with
respect to any such series.


 


Section 7.2   Preservation
of Information; Communications to Holders.  (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of Holders
of Securities contained in the most recent list furnished to the Trustee as
provided in Section 7.1 hereof and the names and addresses of Holders of
Securities received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section 7.1
hereof upon receipt of a new list so furnished.


 


(b)                                 If
three or more Holders of Securities of any series (hereinafter referred to as “applicants”) apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such applicant
has owned a Security of such series for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders of Securities of such
series or with the Holders of all Securities with respect to their rights under
this Indenture or under such Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five Business Days after the receipt of such
application, at its election, either


 


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(i)                                     afford
such applicants access to the information preserved at the time by the Trustee
in accordance with Section 7.2(a) hereof, or


 


(ii)                                  inform
such applicants as to the approximate number of Holders of Securities of such
series or all Securities, as the case may be, whose names and addresses appear
in the information preserved at the time by the Trustee in accordance with Section 7.2(a) hereof,
and as to the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.


 


If the Trustee
elects not to afford such applicants access to such information, the Trustee
shall, upon the written request of such applicants, mail to each Holder of a
Security of such series or to all Holders, as the case may be, whose names and
addresses appear in the information preserved at the time by the Trustee in
accordance with Section 7.2(a) hereof, a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses in connection
with such mailing, unless, within five days after such tender, the Trustee
mails to such applicants and files with the Commission, together with a copy of
the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interests of
the Holders of Securities of such series or all Holders, as the case may be, or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, enters an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission finds, after notice
and opportunity for hearing, that all the objections so sustained have been met
and enters an order so declaring, the Trustee shall mail copies of such
material to all Holders of such series or all Holders, as the case may be, with
reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.


 


(c) Every
Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with Section 7.2(b) hereof,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 7.2(b) hereof.


 


Section 7.3   Reports by Trustee.  (a) The term “reporting date” as used in this Section means May 1st.
Within 60 days after the reporting date in each year, beginning in 2004, the
Trustee shall transmit by mail (x) to all Holders, as their names and addresses
appear in the Security Register, (y) to such holders of Securities as have,
within the two years preceding such transmission, filed their names and addresses
with the Trustee for such purpose and (z) except in the case of Subsection (b) below,
to all holders of Securities whose names and addresses have been furnished to
or received by the Trustee pursuant to Section 7.1 hereof, a brief report
dated as of such reporting date with respect to any of the following events
which may have occurred during the 12 months immediately preceding the date of
such report (but if no such event has occurred within such period no report
need be transmitted):


 


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(1)                                  any
change to its eligibility under Section 6.9 hereof and its qualifications
under Section 6.8 hereof;


 


(2)                                  the
creation of or any material change to a relationship specified in Section 310(b)(1) through
Section 310(b)(10) of the Trust Indenture Act;


 


(3)                                  the
character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
which remain unpaid on the date of such report, and for the reimbursement of
which it claims or may claim a lien or charge, prior to that of Securities of
any series, on any property or funds held or collected by it as Trustee, except
that the Trustee shall not be required (but may elect) to report such advances
if such advances so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Securities of such series outstanding on the date of
such report;


 


(4)                                  any
change to the amount, interest rate and maturity date of all other Indebtedness
owing by the Company (or by any other obligor on the Securities) to the Trustee
in its individual capacity, on the date of such report, with a brief
description of any property held as collateral security therefor, except any
Indebtedness based upon a creditor relationship arising in any manner described
in Section 6.13(b)(2), (3), (4) or (6);


 


(5)                                  any
change to the property and funds, if any, physically in the possession of the
Trustee as such on the date of such report;


 


(6)                                  any
additional issue of Securities which the Trustee has not previously reported;
and


 


(7)                                  any
action taken by the Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects the
Securities, except action in respect of a default, notice of which has been or
is to be withheld by the Trustee in accordance with Section 6.2.


 


(b)                                 The
Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, a brief report with respect to the character
and amount of any advances (and if the Trustee elects so to state, the
circumstance surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to subsection (a) of
this Section (or if no such report has yet been so transmitted, since the
date of execution of this instrument) for the reimbursement of which it claims
or may claim a lien or charge, prior to that of the Securities of any series,
on property or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this subsection, except that the Trustee shall
not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Securities outstanding of such series at such time, such report to be
transmitted within 90 days after such time.


 


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(c)                                     A
copy of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange upon which the Securities are
listed, with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.


 


Section 7.4   Statement
by Officers as to Default.  The Company shall deliver to the Trustee, as
promptly as is practicable and in any event within five days after the Company
becomes aware of the occurrence of any Event of Default, or an event which,
with notice or the lapse of time or both, would constitute an Event of Default,
an Officers’ Certificate setting forth the details of such Event of Default or
default and the action which the Company proposes to take with respect thereto.


 


ARTICLE 8


 


Consolidation,
Merger, Conveyance, Transfer or Lease


 


Section 8.1   Company May Consolidate,
etc. Only on Certain Terms. The Company
shall not consolidate with or merge with or into any other Person (whether or
not the Company shall be the surviving corporation) or convey, transfer, sell
or lease its properties and assets substantially as an entirety to any Person
or group of affiliated Persons, in one transaction or a series of related
transactions, unless:


 


(a)                                  the
Corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance, transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall be a
Corporation organized and validly existing under the laws of the United States
of America, any state thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on all the
Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;


 


(b)                                 immediately
after giving effect to such transaction and treating any Indebtedness which
becomes an obligation of the Company or any Subsidiary as a result of such
transaction as having been incurred by the Company or such Subsidiary at the
time of such transaction, no Event of Default, and no event which, after notice
or lapse of time, or both, would become an Event of Default, shall have
happened and be continuing;


 


(c)                                  if,
as a result of any such consolidation or merger or such conveyance, transfer or
lease, properties or assets of the Company would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which would not be
permitted by this Indenture, the Company or such successor Person, as the case
may be, shall take such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all Indebtedness secured
thereby; and


 


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(d)                                 the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel each stating that such consolidation, merger, conveyance, transfer,
sale or lease and such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.


 


Section 8.2   Successor
Corporation Substituted.  Upon any consolidation or merger, or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 8.1 hereof, the
successor Person formed by such consolidation or into which the Company is merged
or to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein. In the event of any such conveyance or transfer, but not
in the case of a lease, the Company as the predecessor Corporation may be
dissolved, wound up or liquidated at any time thereafter and the Company,
except in the case of a lease, shall be discharged from all obligations under
this Indenture and the Securities.


 


ARTICLE 9


 


Supplemental
Indentures


 


Section 9.1   Supplemental
Indenture Without Consent of Holders.  Without the consent of the Holders of any
Securities, the Company, when authorized by or pursuant to a Board Resolution
or a Company Order, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:


 


(a)                                  to
evidence the succession of another Person to the Company, and the assumption by
any such successor of the covenants of the Company herein and in the
Securities;


 


(b)                                 to
add to the covenants of the Company or to surrender any right or power herein
conferred upon the Company, for the benefit of the Holders of the Securities of
any or all series (and if such covenants or the surrender of such right or
power are to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified
series).  Provided, however, that in
respect of any such additional covenant, restriction or condition, such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or may
limit the remedies available to the Trustee upon such default;


 


(c)                                  to
cure any ambiguity or defect, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture or
the Securities or make any other changes herein or therein;


 


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(d)                                 to
add any additional Events of Default for the benefit of the Holders of all or
any series of Securities (and if such additional Events of Default are to be
for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the
benefit of such series);


 


(e)                                  to
modify, eliminate or add to the provisions of this Indenture to such extent as
shall be necessary to effect the qualification of this Indenture under the
Trust Indenture Act, or under any similar federal statute hereafter enacted,
and to add to this Indenture such other provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in
effect at the date as of which this instrument was executed or any
corresponding provision in any similar federal statute hereafter enacted.;


 


(f)                                    to
establish any form of Security, as provided in Article 2, and to provide
for the issuance of any series of Securities as provided in Article 3 and
to set forth the terms thereof, and/or to add to the rights of the Holders of
the Securities of any series;


 


(g)                                 to
secure the Securities pursuant to the requirements of Section 3.1 or Section 10.9
or otherwise;


 


(h)                                 to
establish the form or terms of Securities of any series as permitted by
Sections 2.1, 2.2 and 3.1;


 


(i)                                     to
evidence and provide for the acceptance of appointment by another Person as a
successor Trustee hereunder with respect to one or more series of Securities
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 6.11
hereof; or


 


(j)                                     to
provide for the issuance of Securities in bearer form with coupons as well as
fully registered form.


 


No
supplemental indenture for the purposes identified in clause (b) or (c) above
may be entered into if to do so would adversely affect the interest of the
Holders of Securities of any series.


 


Section 9.2   Supplemental
Indentures With Consent of Holders.  With the consent of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of
each series affected by such supplemental indenture or indentures (voting
together as a class), by Act of said Holders delivered to the Company and the
Trustee, when authorized by or pursuant to a Board Resolution or a Company
Order, the Company and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Securities of each
such


 


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series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent
or affirmative vote of the Holder of each Outstanding Security affected
thereby,


 


(1)                                  change
the Stated Maturity of the principal of, or any installment of principal or
interest, if any, on, any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue Discount
Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2,
or change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Maturity
or the Stated Maturity, as the case may be, thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or the Repayment Date,
as the case may be);


 


(2)                                  reduce
the percentage in aggregate principal amount of the Outstanding Securities of
any series, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or with certain defaults
hereunder and their consequences, or the declaration of certain defaults
hereunder, provided for in this Indenture; or


 


(3)                                  modify
any of the provisions of this Section, Section 5.13 or Section 10.6,
except to increase any percentage, the consent of whose Holders is required
under such Sections, or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and concomitant changes in this Section and
Section 10.6, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 9.1(i).


 


The Company
may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental
hereto. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to consent to
such supplemental indenture whether or not such Holders remain Holders after
such record date; provided, that unless such consent shall have become
effective by virtue of the requisite percentage having been obtained prior to
the date which is 90 days after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled
and of no further effect.


 


A supplemental
indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of the
Holders of Securities of


 


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such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.


 


It shall not
be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.


 


Upon the
request of the Company accompanied by a copy of a resolution of the Board of
Directors certified by its Secretary or Assistant Secretary authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders as aforesaid, 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.


 


Section 9.3   Execution
of Supplemental Indentures.  In executing or accepting the additional
trusts created by any supplemental indenture permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture and to
the effect that such supplemental indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable against the Company in accordance with its
terms (subject to customary exceptions). The Trustee may, but shall not (except
to the extent required in the case of a supplemental indenture entered into
under Sections 9.1(e) or 9.1(i)) be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.


 


Section 9.4   Effect of
Supplemental Indentures.  Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby to the extent
provided therein.  After the
effectiveness of a supplemental indenture, the Company shall deliver to every
Holder of Securities, in the manner provided for in Section 1.6 herein, a
notice briefly describing the nature of the amendments contained in such
supplemental indenture.


 


Section 9.5   Reference
in Securities to Supplemental Indentures.  Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.


 


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ARTICLE 10


 


Covenants


 


Section 10.1   Payment of
Principal, Premium and Interest.  With respect to each series of Securities,
the Company will duly and punctually pay the principal of (and premium, if any)
and interest on such Securities of that series in accordance with their terms
and this Indenture, and will duly comply with all the other terms, agreements
and conditions contained in, or made in this Indenture for the benefit of, the
Securities of such series.


 


Section 10.2   Maintenance
of Office or Agency.  So long as any of the Securities of a series
remain outstanding, the Company will maintain an office or agency in each Place
of Payment where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and
where notice and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and of any change in the location, of such
office or agency. If at any time the Company fails to maintain any such
required office or agency or fails to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.


 


The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.


 


Section 10.3   Money for
Security Payments to Be Held in Trust.  If the Company at any time acts as its own
Paying Agent for any series of Securities, it will, on or before each due date
of the principal of (or premium, if any) or interest on, any of the Securities
of such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (or premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure to so act.


 


Whenever the
Company has one or more Paying Agents for any series of Securities, it will,
not later than 10:00 A.M., New York City time, on or prior to each due
date of the principal of (and premium, if any) or interest on, any Securities
of such series, deposit with a Paying Agent a sum in immediately available
funds sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal (and premium, if any) or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure to so act.


 


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The Company
will cause each Paying Agent other than the Trustee for any series of
Securities to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will


 


(a)                                  hold
all sums held by it for the payment of principal of (and premium, if any) or
interest on Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;


 


(b)                                 give
the Trustee notice of any default by the Company (or any other obligor upon the
Securities of such series) in the making of any such payment of principal (and
premium, if any) or interest on the Securities of such series; and


 


(c)                                  at
any time during the continuance of any such default, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such
Paying Agent for payment in respect of the Securities of such series.


 


The Company may
at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture with respect to any series of Securities or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent in respect
of each and every series of Securities as to which it seeks to discharge this
Indenture or, if for any other purpose, all sums to be held in trust by the
Company in respect of all Securities, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.


 


Subject to
applicable laws regarding abandoned property, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal (and premium, if any) or interest on any Security of
any series and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease. The Trustee or such Paying Agent, before being required to
make any such repayment, may at the request and expense of the Company cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, notice that such money remains, a
notice that such moneys remain unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such moneys then remaining will be repaid
to the Company.


 


The Company
initially authorizes the Trustee to act as Paying Agent for the Securities on
its behalf. The Company may at any time and from time to time authorize one or


 


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more Persons to act as Paying Agent in addition to or in place of the
Trustee with respect to any series of Securities issued under this Indenture.


 


Section 10.4   Statement
as to Compliance. 
The Company will deliver to the Trustee, no later than May 15 in
each year, a written statement signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company,
stating that


 


(a)                                  a
review of the activities of the Company during such year and of the Company’s
performance under this Indenture and under the terms of the Securities has been
made under his supervision; and


 


(b)                                 to
the best of his knowledge, based on such review, the Company has complied with
all conditions and covenants under this Indenture through such year, or, if
there has been a default in the fulfillment of any such obligation (without
regard to any period of grace or requirement of notice provided hereunder) and,
if the Company shall be in default, specifying all such defaults and the nature
and status thereof of which he may have knowledge, specifying each such default
known to him and the nature and status thereof.


 


Section 10.5   Corporate Existence.  Subject to Article 8, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and will use its best efforts to do or cause
to be done all things necessary to preserve and keep in full force and effect
its rights (charter and statutory) and franchises and such rights and
franchises of its Subsidiaries; provided, however, that the
Company shall not be required to preserve or to cause its Subsidiaries to
preserve any such right or franchise if the Board of Directors shall determine
in good faith that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries taken as a whole
and that the loss thereof is not disadvantageous in any material respect to the
Holders.


 


Section 10.6   Waiver of
Certain Covenants. 
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 9.1(b), 10.7, 10.9 or 10.10
hereof, inclusive, with respect to the Securities of any series if before the
time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.


 


Section 10.7   Further Assurances.  The Company shall, at its own cost and
expense, execute and deliver to the Trustee all such other documents,
instruments, and agreements and do all such other acts and things as may be
reasonably required, in the opinion of the Trustee, to enable the Trustee to
exercise and enforce its right under this Indenture and under the documents,
instruments and agreements required under this Indenture and to carry out the
intent of this Indenture.


 


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Section 10.8   Limitation
on Incurrence of Debt.  Except as set forth in this covenant, the
Company will not, and will not permit any of its Subsidiaries to, directly or
indirectly, issue, assume, guaranty, incur, become directly or indirectly
liable with respect to (including as a result of an acquisition), or otherwise
become responsible for, contingently or otherwise (individually and
collectively, to “incur” or, as
appropriate, an “incurrence”), any
Indebtedness (including Disqualified Capital Stock and Acquired Indebtedness),
other than Permitted Indebtedness.


 


Notwithstanding
the foregoing, if:


 


(a)                              no
Event of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be continuing at the
time of, or would occur as a consequence of such incurrence of Indebtedness;
and


 


(b)                             on
the date of such incurrence (the “Incurrence
Date”), the Company’s FFO Coverage Ratio for the Reference Period
immediately preceding the Incurrence Date, after giving effect on a pro forma
basis to such incurrence of such Indebtedness and the use of proceeds thereof,
would be at least 2.0 to 1.0 (the “Debt
Incurrence Ratio”),


 


then the Company and its
Subsidiaries may incur such Indebtedness (including Disqualified Capital
Stock).


 


Indebtedness
(including Disqualified Capital Stock) of any Person which is outstanding at
the time such Person becomes one of the Subsidiaries of the Company (including
upon designation of any subsidiary or other Person as a Subsidiary) or is
merged with or into or consolidated with the Company or one of its Subsidiaries
shall be deemed to have been incurred at the time such Person becomes or is
designated one of the Subsidiaries of the Company or is merged with or into or
consolidated with the Company or one of its Subsidiaries as applicable.


 


For purposes
of determining compliance with this covenant, in the event that an item of
Indebtedness meets the criteria of more than one of the categories of the
definition of Permitted Indebtedness that is entitled to be incurred pursuant
this covenant, the Company shall, in its sole discretion, classify (or later
reclassify) such item of Indebtedness in any manner that complies with this
covenant.


 


Section 10.9   Restrictions on Liens.  To the extent this covenant is made
applicable to the Securities of a particular series, the Company will not, and
will not permit any Subsidiary to, incur, issue, assume, guarantee or permit to
exist Indebtedness secured by any Lien of the Company or any Subsidiary upon
any of its respective Property, or upon shares of capital stock or evidences of
Indebtedness issued by any Subsidiary and owned by the Company or any
Subsidiary, whether owned at the date of this Indenture or thereafter acquired,
without making, or causing such Subsidiary to make, effective provision to
secure all of the Securities then Outstanding by such Lien, equally and ratably
with any and all other Indebtedness thereby secured, so long a such
Indebtedness shall be so secured.


 


The foregoing
restrictions shall not apply to any of the following (the “Permitted Encumbrances”):


 


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(a)                               Indebtedness
secured by Liens existing on the date of this Indenture;


 


(b)                              Liens to secure
Indebtedness under the Revolving Credit Agreement up to $25.0 million;


 


(c)                               Liens to secure
Indebtedness issued under the First Mortgage Indenture;


 


(d)                                 Liens
on any Property acquired, constructed or improved by the Company or any
Subsidiary after the date of this Indenture which are created or assumed
contemporaneously with such acquisition, construction or improvement, or within
270 days after the completion thereof, to secure or provide for the payment of
all or any part of the cost of such acquisition, construction or improvement
(including related expenditures capitalized for Federal income tax purposes in
connection therewith) incurred after the date of this Indenture;


 


(e)                                  Liens
of or upon any Property, shares of capital stock or Indebtedness existing at
the time of acquisition thereof by the Company or any Subsidiary, whether by
merger, consolidation, purchase, lease or otherwise (including Liens of or upon
Property, shares of capital stock or Indebtedness of a Corporation existing at
the time such Corporation becomes a Subsidiary or a part of the Company or a
Subsidiary by acquisition, merger or otherwise);


 


(f)                                    Liens
in favor of the Company or any Subsidiary;


 


(g)                                 Liens
in favor of the United States of America or any state thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof or political entity affiliated therewith
to secure partial, progress, advance or other payments, or other obligations,
pursuant to any contract or statute or to secure any Indebtedness incurred for
the purpose of financing all or any part of the cost of acquiring, constructing
or improving the Property subject to such Liens (including Liens incurred in
connection with pollution control, industrial revenue or similar financings);


 


(h)                                 Liens
on any Property created, assumed or otherwise brought into existence in
contemplation of the sale or other disposition of the underlying Property,
whether directly or indirectly, by way of share disposition or otherwise;
provided that 180 days from the creation of such Liens the Company must have
disposed of such Property and any Indebtedness secured by such Liens shall be
without recourse to the Company or any Subsidiary;


 


(i)                                     Liens
imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s,
carriers’, warehousemen’s, vendors’ or other similar liens arising in the
ordinary course of business, or governmental (Federal, state or municipal)
liens arising out of contracts for the sale of products or services by the


 


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Company or any
Subsidiary, or deposits or pledges to obtain the release of any of the
foregoing;


 


(j)                                     Liens
arising out of pledges or deposits under workmen’s compensation laws or similar
legislation and Liens of judgments thereunder which are not currently
dischargeable, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of money) or leases to which the Company
or any Subsidiary is a party, or deposits to secure public or statutory
obligations of the Company or any Subsidiary, or deposits in connection with
obtaining or maintaining self-insurance or to obtain the benefits of any law,
regulation or arrangement pertaining to unemployment insurance, old age
pensions, social security or similar matters, or deposits of cash or
obligations of the United States of America to secure surety, appeal or customs
bonds to which the Company or any Subsidiary is a party, or deposits in
litigation or other proceedings such as, but not limited to, interpleader
proceedings;


 


(k)                                  Liens
created by or resulting from any litigation or other proceeding which is being
contested in good faith by appropriate proceedings, including Liens arising out
of judgments or awards against the Company or any Subsidiary with respect to
which the Company or such Subsidiary is in good faith prosecuting an appeal or
proceedings for review; or Liens incurred by the Company or any Subsidiary for
the purpose of obtaining a stay or discharge in the course of any litigation or
other proceeding to which the Company or such Subsidiary is a party;


 


(l)                                     Liens
for taxes or assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or which are being
contested in good faith by appropriate proceedings;


 


(m)                               Liens
of lessors or licensors for amounts due which are not delinquent or are being
contested;


 


(n)                                 Rights
of others to take minerals, timber, gas, water or other products produced by
the Company or by others on the Property of the Company;


 


(o)                                 Liens
which have been bonded for the full amount in dispute;


 


(p)                                 Liens
pursuant to Sale and Leaseback Transactions;


 


(q)                                 Liens
consisting of easements, rights-of-way, zoning restrictions, restrictions on
the use of real property, and defects and irregularities in the title thereto,
landlords’ liens and other similar liens and encumbrances none of which
interferes materially with the use of the Property covered thereby in the
ordinary course of the business of the Company or such Subsidiary and which do
not, in the opinion of the Company, materially detract from the value of such
properties; and


 


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(r)                                    any
extension, renewal or replacement (or successive extensions, renewals or
replacements), as a whole or in part, of any Lien referred to in the foregoing
clauses (b), (c), (d), (e) or (h) to (q), inclusive; provided that (i) such
extension, renewal or replacement Lien shall be limited to all or a part of the
same Property, shares of stock or Indebtedness that secured the Lien extended,
renewed or replaced (plus improvements on such Property) and (ii) the
amount of Indebtedness secured by such Lien at such time is not increased.


 


Notwithstanding
the foregoing, the Company and its Subsidiaries, or any of them, may incur,
issue, assume, guarantee or permit to exist Indebtedness secured by Liens
without equally and ratably securing the Securities of each series then
Outstanding, provided, that at the time of such incurrence, issuance,
assumption or guarantee of Indebtedness, after giving effect thereto and to the
retirement of any Indebtedness of the Company or of any Subsidiary which is
concurrently being retired, the sum of (i) the aggregate amount of all
outstanding Indebtedness of the Company and all the Subsidiaries secured by
Liens which could not have been incurred, issued, assumed or guaranteed by the
Company or a Subsidiary without equally or ratably securing the Securities of
each series then Outstanding, except for the provisions of this paragraph, plus
(ii) the Attributable Value of Sale and Leaseback Transactions entered
into pursuant to the penultimate paragraph of Section 10.10, does not at
such time exceed the greater of 10% of Net Tangible Assets or 10% of the
Consolidated Capitalization of the Company.


 


Section 10.10   Restrictions
on Sale and Leaseback Transactions.  To the extent made applicable to the
Securities of a particular series, the Company will not itself, and will not
permit any Subsidiary to, enter into any arrangement with any Person, providing
for the leasing by the Company or a Subsidiary for a period, including
renewals, in excess of three years of any Property which have been or are to be
sold or transferred by the Company or any Subsidiary to such Person (herein
referred to as a “Sale and Leaseback
Transaction”) unless either:


 


(a)                                  The
Company or such Subsidiary would, at the time of entering into such
arrangement, be entitled, without equally and ratably securing the Securities
of each series then Outstanding, to incur, issue, assume or guarantee
Indebtedness secured by a Lien on such Property, pursuant to paragraphs (a) to
(k), inclusive, of Section 10.9; or


 


(b)                                 the
Company, within 180 days after the sale or transfer shall have been made by the
Company or by a Subsidiary, applies an amount equal to the greater of (i) the
net proceeds of the sale of Property sold and leased back pursuant to such
arrangement or (ii) the fair market value of the Property so sold and
leased back at the time of entering into such arrangement (as determined by the
Company in good faith) to the retirement of Funded Indebtedness of the Company;
provided, that the amount to be applied to the retirement of Funded
Indebtedness of the Company shall be reduced by (i) the principal amount
of any Securities delivered within 180 days after such sale to the Trustee for
retirement and cancellation, and (ii) the principal amount of Funded
Indebtedness, other than Securities, voluntarily retired by the Company within
180 days after such sale.


 


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Notwithstanding
the foregoing, the Company and its Subsidiaries, or any of them, may enter into
a Sale and Leaseback Transaction which would otherwise be prohibited by this Section 10.10,
provided, that at the time of such transaction, after giving effect thereto,
the sum of (i) the aggregate amount of the Attributable Value in respect
of all Sale and Leaseback Transactions existing at such time which could not
have been entered into except for the provisions of this paragraph plus (ii) the
aggregate amount of outstanding Indebtedness secured by Liens in reliance on
the last paragraph of Section 10.9 does not at such time exceed the
greater of 10% of Net Tangible Assets or 10% of the Consolidated Capitalization
of the Company.


 


A Sale and
Leaseback Transaction shall not be deemed to result in the creation of a Lien.


 


Section 10.11   Reports.  Whether or not required by the Commission, so
long as any Securities are outstanding, the Company shall mail to the Trustee
and the Holders, within the time periods specified in the Commission’s rules and
regulations all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Company were required to file such Forms, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and,
with respect to the annual information only, a report on the annual financial
statements by the Company’s certified independent accountants; provided, that with respect to the Company’s
fiscal quarter ending June 30, 2003, the Company shall not be required to
provide such quarterly information until September 30, 2003.


 


Additionally, whether or not required by the
Commission, so long as any Securities are outstanding, the Company shall mail
to the Trustee and the Holders, within 5 calendar days of the occurrence
thereof, an Officers’ Certificate providing notice of any of the following
events, including in reasonable detail a summary of such event or events and
the Company’s plans in respect thereof, if any:


 


(a)                                  any
change of control of the Company, including the name of the Person(s) acquiring
control, the amount and source of the consideration used, the basis of the
control, the date and description of the transaction resulting in the change of
control, the percentage of beneficial ownership of voting securities of the
Company owned by the Person gaining control, the identity of the Person from
whom control was assumed and the effect of such change of control, if any, on
any material agreements or arrangements of the Company;


 


(b)                                 any
acquisition or disposition of any significant assets of the Company or any of
its Subsidiaries, whether in one transaction or a series of related
transactions;


 


(c)                               any
bankruptcy or receivership of the Company or any direct or indirect parent of
the Company;


 


(d)                                 any change in the
Company’s or any of its significant subsidiaries’ auditors;


 


(e)                                  any resignation of
any of the Company’s directors;


 


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(f)                                    any change in the
Company’s fiscal year; and


 


(g)                                 information
with respect to the Company’s results of operations, financial condition or
prospects which, in the Company’s reasonable judgment, would be material to a
Holder;


 


provided,
that at such time as the Company is required to file reports on Form 8-K,
the Company shall mail to the Trustee and the Holders, within the time periods
specified in the Commission’s rules and regulations the information
required in current reports on Form 8-K that are required to be
filed with the Commission in lieu of the information preceding this proviso of
this paragraph.


 


In addition,
following the filing of any information with the Commission, the Company shall
make such information available to prospective investors upon request.


 


Further, the
Company shall furnish to the Holders and to prospective investors, upon the
request of such Holders, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act so long as the relevant Securities are not freely
transferable under the Securities Act.


 


At the request
of the Company, the Trustee shall assist the Company in the mailing to Holders
of any of the aforesaid information, reports and certificates pursuant to the
first, second and/or third paragraphs above. 
If the Trustee delivers the foregoing information to the Holders on
behalf of the Company, the Company shall not be required to deliver such
information.  Should the Company deliver
to the Trustee any such information, reports or certificates or any annual reports,
information, documents and other reports pursuant to Section 314(a) of
the Trust Indenture Act (if this First Supplemental Indenture shall become
qualified and subject to the Trust Indenture Act), delivery of such
information, reports and certificates, or such annual reports, information, documents
and other reports to the Trustee is for informational purposes only and the
Trustee’s receipt of such shall not constitute notice or constructive notice of
any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officer’s
Certificates).


 


ARTICLE 11


 


Redemption of
Securities


 


Section 11.1   Applicability
of Article.  Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 3.1 for such
Securities) in accordance with this Article 11.


 


Section 11.2   Election
to Redeem; Notice to Trustee.  The election of the Company to redeem any
Securities shall be evidenced by a Company Order. In case of any redemption at
the election of the Company of less than all the Securities of any series
(including any such redemption affecting only a single Security), the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the


 


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Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to
be redeemed and, if applicable, of the tenor of the Securities to be redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers’  Certificate evidencing
compliance with such restriction.


 


Section 11.3   Selection
by Trustee of Securities to Be Redeemed.  If less than all the Securities of any series
are to be redeemed (unless all the Securities of such series and of a specified
tenor are to be redeemed), the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate,
which may include selection pro rata or by lot, and which may provide for the selection
for redemption of a portion of the principal amount of any Security of such
series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.


 


The Trustee
shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial
redemption as aforesaid, the principal amount thereof to be redeemed.


 


The provisions
of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in
whole or in part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Security shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination)
for such Security.


 


For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of any Securities redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities which has been or is to be redeemed.


 


Section 11.4   Notice of Redemption.  Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at the Holder’s address appearing in the Security Register.


 


All notices of
redemption shall state:


 


(a)                                  the
Redemption Date;


 


(b)                                 the
Redemption Price;


 


(c)                                  if
less than all the Outstanding Securities of any series consisting of more than
a single Security are to be redeemed, the identification


 


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(and, in the
case of partial redemption of any such Securities, the principal amounts) of the
particular Securities to be redeemed and, if less than all the Outstanding
Securities of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;


 


(d)                                 that
on the Redemption Date the Redemption Price, together with accrued interest, if
any (without duplication), will become due and payable upon each such Security,
and that interest, if any, thereon shall cease to accrue from and after said
date;


 


(e)                                  the
place where such Securities are to be surrendered for payment of the Redemption
Price, which shall be the office or agency of the Company in the Place of
Payment;


 


(f)                                    if
applicable, that the redemption is on account of a sinking or purchase fund, or
other analogous obligation; and


 


(g)                                 the
“CUSIP”, “ISIN” and/or other similar number, if any, of the Securities to be
redeemed.


 


Notice of
redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name
and at the expense of the Company and shall be irrevocable.


 


Section 11.5   Deposit of
Redemption Price. 
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.


 


Section 11.6   Securities
Payable on Redemption Date.  Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, (premium, if
any) and accrued interest and from and after such date (unless the Company
shall default in the payment of the Redemption Price (premium, if any) and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with such notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.1, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.


 


If any
Security called for redemption is not so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the Security.


 


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Section 11.7   Securities
Redeemed in Part. 
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or the Holder’s attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered; provided,
however, that if a Global Security is so surrendered, such new Security
so issued shall be a new Global Security in a denomination equal to the
unredeemed portion of the principal of the Global Security so surrendered.


 


ARTICLE 12


 


Sinking
Funds


 


Section 12.1   Applicability
of Article. 
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 3.1 for such Securities.


 


The minimum
amount of any sinking fund payment provided for by the terms of any Securities
is herein referred to as a “mandatory sinking
fund payment”, and any payment in excess of such minimum amount
provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment”. If provided
for by the terms of any Securities, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 12.2. Each sinking fund
payment shall be applied to the redemption of Securities as provided for by the
terms of such Securities.


 


Section 12.2   Satisfaction
of Sinking Fund Payments with Securities.  The Company (1) may deliver Outstanding
Securities of a series (other than any previously called for redemption) and (2) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to any Securities of such series required to
be made pursuant to the terms of such Securities as and to the extent provided
for by the terms of such Securities; provided that the Securities to be so
credited have not been previously so credited. The Securities to be so credited
shall be received and credited for such purpose by the Trustee at the
Redemption Price, as specified in the Securities so to be redeemed, for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.


 


Section 12.3   Redemption
of Securities for Sinking Fund.  Not less than 35 days prior to each sinking
fund payment date for any Securities, the Company will deliver to the Trustee
an Officers’ Certificate specifying the date and the amount of the next ensuing
sinking fund payment for such Securities pursuant to the terms of such
Securities, the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities pursuant to Section 12.2 and will also deliver to


 


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the Trustee
any Securities to be so delivered. Not less than 32 days prior to each such
sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section 11.3
and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 11.4. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.6 and 11.7.


 


ARTICLE 13


 


Defeasance and
Covenant Defeasance


 


Section 13.1   Company’s
Right with Respect to Defeasance or Covenant Defeasance.  The Company will have the right, at any time,
to have Section 13.2 or Section 13.3 applied to any Securities or any
series of Securities, as the case may be (other than Securities of a series
designated pursuant to Section 3.1 as not being defeasible pursuant to
such Section 13.2 or 13.3), upon compliance with the conditions set forth
below in this Article. Any such request shall be evidenced by a Company Order
or in another manner specified as contemplated by Section 3.1 for such
Securities.


 


Section 13.2   Defeasance
and Discharge. 
Upon the Company’s exercise of its right to have this Section applied
to any Securities or any series of Securities, as the case may be, the Company
shall be deemed to have been discharged from its obligations with respect to
such Securities as provided in this Section on and after the date the
conditions set forth in Section 13.4 are satisfied (hereinafter called “Defeasance”).  For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire Indebtedness
represented by such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of such Securities to receive, solely from the trust fund described
in Section 13.4 and as more fully set forth in such Section, (i) payments
in respect of the principal and any premium and interest on the Outstanding
Securities on the Stated Maturity of such principal or installment of principal
of and any such premium or interest and (ii) the benefit of any mandatory
sinking fund payments applicable to the Securities on the day on which such
payments are due and payable in accordance with the terms of this Indenture and
the Securities, (b) the Company’s obligations with respect to such
Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (d) this
Article. Subject to compliance with this Article, the Company may exercise its
option to have this Section applied to any Securities notwithstanding the
prior exercise of its option to have Section 13.3 applied to such
Securities.


 


Section 13.3   Covenant Defeasance.  Upon the Company’s exercise of its right to
have this Section applied to any Securities or any series of Securities,
as the case may be, (a) the Company shall be released from its obligations
under Sections 10.8, 10.9 and 10.10, and any covenants provided pursuant to Section 3.1(k)
relating to covenants of the Company with respect to a particular series of
Securities, Section 9.1(b) or 9.1(h) for the benefit of the
Holders of such Securities and (b) the occurrence of any event specified
in Sections 5.1(d) (with respect to


 


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Sections 10.8, 10.9 and 10.10,
and any such covenants provided pursuant to Section 3.1(k) relating to
covenants of the Company with respect to a particular series of Securities, Section 9.1(b) or
9.1(h)), and 5.1(g) shall be deemed not to be or result in an Event of
Default, in each case with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 13.4 are satisfied
(hereinafter called “Covenant Defeasance”).
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 5.1(d)), whether directly
or indirectly by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.


 


Section 13.4   Conditions
to Defeasance or Covenant Defeasance.  The following shall be the conditions to the
application of Section 13.2 or Section 13.3 to any Securities or any
series of Securities, as the case may be:


 


(a)                                  The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section 6.9
and agrees to comply with the provisions of this Article applicable to it)
as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits of
the Holders of such Securities, (1) money in an amount, or (2) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or (3) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, (i) the principal of and any premium and each installment
of principal of and any premium and interest on the Outstanding Securities on
their respective Stated Maturities, and (ii) any mandatory sinking fund
payments applicable to the Securities on the day on which such payments are due
and payable in accordance with the terms of this Indenture and such Securities.


 


(b)                                 In
the event of an election to have Section 13.2 apply to any Securities or
any series of Securities, as the case may be, the Company shall have delivered
to the Trustee an Opinion of Counsel stating that (1) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (2) since the date of this Indenture, there has been a change in
the applicable Federal income tax law, in either case (1) or (2) to the
effect that, and based thereon such opinion shall confirm that, the Holders of
such Securities will not recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on the
same amount, in the same


 


77





















 


manner and at
the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.


 


(c)                                  In
the event of an election to have Section 13.3 apply to any Securities or
any series of Securities, as the case may be, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with respect to
such Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.


 


(d)                                 Such
provision would not cause any Outstanding Securities, if then listed on any
securities exchange, to be delisted as a result of such deposit.


 


(e)                                  No
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such event
specified in Sections 5.1(f) and (g), at any time on or prior to the 90th
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 90th day).


 


(f)                                    Such
Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming
all Securities are in default within the meaning of such Act).


 


(g)                                 Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under, any other agreement or instrument to which the
Company is a party or by which it is bound.


 


(h)                                 Such
Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the
Investment Company Act unless such trust shall be registered under such Act or
exempt from registration thereunder.


 


(i)                                     The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to
such Defeasance or Covenant Defeasance have been complied with.


 


Section 13.5   Deposited
Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
Provisions. 
Subject to the provisions of the last paragraph of Section 10.3,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 13.6, the Trustee and any such other trustee
are referred to collectively as the “Trustee”)
pursuant to Section 13.4 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying


 


78





















 


Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law. All money deposited with the Trustee pursuant to this Section may
be invested by the Trustee in U.S. Government Obligations if the Company so
instructs pursuant to a Company Order.


 


The Company
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 13.4 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.


 


Anything in
this Article to the contrary notwithstanding, so long as no Event of
Default with respect to the applicable series of Securities shall have occurred
and be continuing, the Trustee shall deliver or pay, subject nevertheless to
the lien provided for in Section 6.7, to the Company from time to time
upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 13.4 with respect to any Securities which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.


 


Section 13.6   Reinstatement.  If the Trustee or the Paying Agent is unable
to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the obligations under this Indenture and such Securities from which the
Company has been discharged or released pursuant to Section 13.2 or 13.3
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article with respect to such Securities, until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 13.5 with respect to such Securities in accordance with this
Article; provided, however, that if the Company makes any payment
of principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money so held in trust.


 


ARTICLE 14


 


Immunity of
Incorporators, Stockholders, Officers and Directors


 


Section 14.1   Liability
Solely Corporate. 
No recourse shall be had for the payment of the principal of or premium,
if any, or interest, if any, on any Securities, or any part thereof, or for any
claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement under this
Indenture, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any predecessor or successor
Corporation (either directly or through the Company or a predecessor or
successor Corporation), whether by virtue of any constitutional provision,
statute or rule of law or by the enforcement of any assessment or penalty
or otherwise; it being expressly agreed and understood that this Indenture and
all the Securities are solely corporate


 


79





















 


obligations and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor Corporation, either directly or
indirectly through the Company or any predecessor or successor Corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied herefrom or therefrom; and such personal
liability, if any, is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution and delivery of this
Indenture, as originally executed and delivered, and the issuance of the
Securities.


 


80





















 


IN WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly executed as
of the day and year first above written.


 


	
   

  	
  ITC HOLDINGS
  CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  NEW YORK, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name: Roxane
  Ellwanger

  
	
   

  	
  Title:
  Assistant Vice President

  



 


81





















 


EXECUTION COPY


 


	
  STATE OF
  MICHIGAN

  	
  §

  	
   

  
	
   

  	
  § ss.:

  	
   

  
	
  COUNTY OF
  [         ]

  	
  §

  	
   

  



 


On this       
day of       , 2003, before me,                     ,
Notary Public in and for the County and State aforesaid, personally appeared                       ,
to me personally known, and known to me to be the person whose name is
subscribed to the foregoing instrument and known to me to be [Insert Title] of
ITC HOLDINGS CORP., a Michigan corporation, who being by me duly sworn, did say
that he resides in               ,
                ,
that he is [Insert Title] of said ITC HOLDINGS CORP. and that the seal affixed
to said instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by authority of
its Board of Directors; and said                   
acknowledged said instrument to be the free act and deed of said corporation,
and acknowledged to me that he executed said instrument for the purposes and
consideration therein expressed and as the act of said corporation.


 


IN WITNESS
WHEREOF, I have hereunto set my hand and seal of office this     
day of       , 2003.


 


	
   

  	
   

  	
   

  
	
   

  	
  (NOTARIAL
  SEAL)

  



 





















 


EXHIBIT A


 


[If the
Security is to be a Global Security, insert — Unless this certificate is
presented by an authorized representative of The Depository Trust Company, a
New York corporation (“DTC”), to
the issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.


 


THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE
HEREINAFTER REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]


 


ITC
HOLDINGS CORP.


 


%       
DUE


 


$                        


 


	
  No.

  	
  CUSIP
                                    

  



 


ITC HOLDINGS
CORP., a corporation duly organized and existing under the laws of The State of
Michigan (herein called the “Company,”
which term includes any successor under the Indenture hereinafter referred to),
for value received, hereby promises to pay to or registered assigns, the
principal sum of $                    
on [if the Security is to bear interest prior to Maturity, insert —, and to pay
interest thereon from, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on and in each year,
commencing                   ,
at the rate per annum provided in the title hereof, until the principal hereof
is paid or made available for payment [if applicable, insert —, and, subject to
the terms of the Indenture, at the rate of         %
per annum on any overdue principal and premium and (to the extent that the
payment of such interest shall be legally enforceable) on any overdue
installment of interest, from the dates such amounts are due until they are
paid or made available for payment, and such interest shall be payable on
demand]. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the                   
or                     
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either


 





















 


be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture.]


 


[If the
Security is not to bear interest prior to Maturity, insert —The principal of
this Security shall not bear interest except in the case of a default in
payment of principal upon acceleration, upon redemption or at Stated Maturity
and in such case the overdue principal [and any overdue premium] of this
Security shall bear interest at the rate of         %
per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to
the date payment of such principal has been made or duly provided for. Interest
on any overdue principal or premium shall be payable on demand. Any such
interest on any overdue principal [or premium] that is not so paid on demand
shall bear interest at the rate of         %
per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for payment to
the date payment of such interest has been made or duly provided for, and such
interest shall also be payable on demand.]


 


Payment of the
principal of (and premium, if any) and interest[, if any,] on this Security
will be made at the office or agency of the Company maintained for that purpose
in, in [such coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts — or state
other currency]; [if this Security is not a Global Security, insert — provided,
however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].


 


Reference is
hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.


 


Unless the
certificate of authentication hereon has been manually executed by or on behalf
of the Trustee under the Indenture, this Security shall not be entitled to any
benefits under the Indenture, or be valid or obligatory for any purpose.


 


2





















 


IN WITNESS
WHEREOF, ITC HOLDINGS CORP. has caused this Security to be duly executed.


 


	
  Dated:

  	
  ITC HOLDINGS
  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


TRUSTEE’S CERTIFICATE OF
AUTHENTICATION


 


This is one of
the Securities of the series designated therein referred to in the
within-mentioned Indenture.


 


Date:                          ,
        


 


	
   

  	
  BNY MIDWEST
  TRUST COMPANY,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


3





















 


[REVERSE OF SECURITY]


 


This Security
is one of the duly authorized issue of debentures, notes, bonds or other
evidences of indebtedness of the Company (hereinafter called the “Securities”), of the series hereinafter
specified, all issued or to be issued under and pursuant to the Indenture dated
as of       , 2003 (hereinafter called the “Indenture”), duly executed and delivered by
the Company and           ,
as Trustee (herein called the “Trustee”,
which term includes any successor trustee under the Indenture), to which
Indenture and any other indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee and any agent of
the Trustee, any Paying Agent, the Company and the Holders of the Securities
and of the terms upon which the Securities are issued and are to be
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert —, limited in aggregate principal amount
to $           . By the
terms of the Indenture, additional Securities [if applicable, insert — of this
series and] of other separate series, which may vary as to date, amount, Stated
Maturity, interest rate or method of calculating the interest rate and in other
respects as therein provided, may be issued in an unlimited amount.]


 


[If
applicable, insert — This security is not subject to redemption prior to the
Stated Maturity.] [If applicable,  insert
—The Securities of this series are subject to redemption upon not less than 30
or more than 60 days’ notice by mail to the Holders of such Securities at their
addresses in the Security Register for such series, [if applicable, insert —(1) on
in any year commencing with the year and ending with the year through operation
of the sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after           ,
20      ], as a whole or in part, at the election
of the Company, at the following Redemption Prices (expressed as percentages of
the principal amount):


 


If redeemed
[on or before               ,
          %, and if redeemed]
during the 12-month period beginning           ,
of the years indicated:


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter at a Redemption
Price equal to         % of the
principal amount, together in the case of any such redemption [if applicable,
insert —(whether through operation of the sinking fund or otherwise)] with
accrued and unpaid interest to the Redemption Date, but interest installments
whose Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture.]


 


[If applicable,
insert —The Securities of this series are subject to redemption upon not less
than 30 or more than 60 days’ notice by mail to the Holders of such Securities
at their addresses in the Security Register for such series, (1) on in any
year commencing with the year           
and ending with the year             
through operation of the sinking fund for this series at


 


4





















 


the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [if applicable, insert — on or after             ],
as a whole or in part, at the election of the Company, at the Redemption Prices
for redemption otherwise than through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below:


 


If redeemed
during the 12-month period beginning         
of the years indicated:


 


	
  Year

  	
   

  	
  For Redemption

  Through Operation of

  the Sinking Fund

  	
   

  	
  Redemption Price for

  Redemption Otherwise

  Than Through Operating of

  the Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter at a Redemption
Price equal to         % of the
principal amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued and unpaid interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]


 


[If
applicable, insert — Notwithstanding the foregoing, the Company may not, prior
to, redeem any Securities of this series as contemplated by [Clause (2) of]
the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than         %
per annum.]


 


[If
applicable, insert — The sinking fund for this series provides for the
redemption on          in each year
beginning with the year           
and ending with the year          of
[not less than         ] [(“mandatory sinking fund”) and, at the option
of the Company, not more than           ]
aggregate principal amount of Securities of this series. [Securities of this
series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made in the order in which they become
due.]]


 


[If the
Security is subject to redemption of any kind, insert —In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.]


 


The Indenture
contains provisions for defeasance of (a) the entire indebtedness of this
Security and (b) certain restrictive covenants upon compliance by the
Company with certain conditions set forth therein.


 


If the
Security is not an Original Issue Discount Security, insert —If an Event of
Default with respect to Securities of this series shall occur and be continuing,
the principal of the


 


5





















 


Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture.]


 


[If the
Security is an Original Issue Discount Security, insert — If an Event of
Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series (the “Acceleration Amount”) may be declared due
and payable in the manner and with the effect provided in the Indenture. Such
amount shall be equal to — insert formula for determining amount. Upon payment (i) of
the Acceleration Amount so declared due and payable and (ii) of interest
on any overdue principal and overdue interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all of the Company’s
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.]


 


The Indenture
permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of
the Holders of the Securities of each series to be affected under the Indenture
at any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting together as a class). The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.


 


[If the
Security is an Original Issue Discount Security, — In determining whether the
Holders of the requisite principal amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver
under the Indenture or whether a quorum is present at a meeting of Holders of
Securities, the principal amount of any Original Issue Discount Security that
shall be deemed to be Outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon the
acceleration of the Maturity thereof.]


 


No reference
herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of (and premium, if any) and interest, if
any, on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.


 


As provided in
the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in any place where the principal of (and premium, if any) and
interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor,


 


6





















 


of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.


 


The Securities
of this series are issuable only in registered form without coupons in
denominations of           $
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.


 


No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.


 


Prior to due
presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.


 


This Security shall
be governed by and construed in accordance with the laws of the State of New
York except, if the Indenture shall become qualified under and subject to the
Trust Indenture Act, to the extent that the Trust Indenture Act shall be
applicable.


 


All terms used
in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.


 


7