Exhibit 4.5


 


 


EXECUTION COPY




 





 


 


FIRST MORTGAGE AND DEED OF
TRUST


 


INTERNATIONAL TRANSMISSION COMPANY


 


TO


BNY MIDWEST TRUST COMPANY


 


Trustee


 










 


 


Dated as of July 15, 2003


 




 





 


 


This is a future advance mortgage and secures
future advances and Securities delivered hereunder in an unlimited amount


 


 


*                              This Instrument Contains After-Acquired Property Provisions


 





















 


TABLE
OF CONTENTS


 


	
  Recital of the Company

  	
   

  	
   

  
	
  Granting Clauses

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS AND OTHER
  PROVISIONS OF GENERAL APPLICATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01 General Definitions.

  	
   

  	
   

  
	
  “Accountant”

  	
   

  	
   

  
	
  “Acquisition”

  	
   

  	
   

  
	
  “Act”

  	
   

  	
   

  
	
  “Affiliate”

  	
   

  	
   

  
	
  “Annual Interest Requirements”

  	
   

  	
   

  
	
  “Authenticating Agent”

  	
   

  	
   

  
	
  “Authorized Officer”

  	
   

  	
   

  
	
  “Authorized Publication”

  	
   

  	
   

  
	
  “Authorized Purposes”

  	
   

  	
   

  
	
  “Board of Directors”

  	
   

  	
   

  
	
  “Board Resolution”

  	
   

  	
   

  
	
  “Business
  Day”

  	
   

  	
   

  
	
  “Commission”

  	
   

  	
   

  
	
  “Company”

  	
   

  	
   

  
	
  “Company Order” or “Company Request”

  	
   

  	
   

  
	
  “Corporate Trust Office”

  	
   

  	
   

  
	
  “corporation”

  	
   

  	
   

  
	
  “Cost”

  	
   

  	
   

  
	
  “Defaulted Interest”

  	
   

  	
   

  
	
  “Discount Security”

  	
   

  	
   

  
	
  “Dollar” or “$”

  	
   

  	
   

  
	
  “Eligible Obligations”

  	
   

  	
   

  
	
  “Event
  of Default”

  	
   

  	
   

  
	
  “Excepted Property”

  	
   

  	
   

  
	
  “Expert”

  	
   

  	
   

  
	
  “Expert’s Certificate”

  	
   

  	
   

  
	
  “Fair
  Value”

  	
   

  	
   

  
	
  “Funded
  Cash”

  	
   

  	
   

  
	
  “Funded
  Property”

  	
   

  	
   

  
	
  “Governmental Authority”

  	
   

  	
   

  
	
  “Government Obligations”

  	
   

  	
   

  
	
  “Holder”

  	
   

  	
   

  
	
  “Indenture”

  	
   

  	
   

  
	
  “Independent”

  	
   

  	
   

  
	
  “Independent Expert’s Certificate”

  	
   

  	
   

  
	
  “Interest Payment Date”

  	
   

  	
   

  
	
  “Investment Securities”

  	
   

  	
   

  



 


i





















 


	
  “Lien”

  	
   

  	
   

  
	
  “Maturity”

  	
   

  	
   

  
	
  “Mortgaged Property”

  	
   

  	
   

  
	
  “Net Earnings Certificate”

  	
   

  	
   

  
	
  “Notice of Default”

  	
   

  	
   

  
	
  “Officer’s Certificate”

  	
   

  	
   

  
	
  “Opinion of Counsel”

  	
   

  	
   

  
	
  “Outstanding”

  	
   

  	
   

  
	
  “Paying
  Agent”

  	
   

  	
   

  
	
  “Periodic Offering”

  	
   

  	
   

  
	
  “Permitted
  Liens”

  	
   

  	
   

  
	
  “Person”

  	
   

  	
   

  
	
  “Place
  of Payment”

  	
   

  	
   

  
	
  “Predecessor Security”

  	
   

  	
   

  
	
  “Prepaid
  Lien”

  	
   

  	
   

  
	
  “Property Additions”

  	
   

  	
   

  
	
  “Purchase Money Lien”

  	
   

  	
   

  
	
  “Redemption
  Date”

  	
   

  	
   

  
	
  “Redemption Price”

  	
   

  	
   

  
	
  “Regular Record Date”

  	
   

  	
   

  
	
  “Required Currency”

  	
   

  	
   

  
	
  “Responsible Officer”

  	
   

  	
   

  
	
  “Retired Securities”

  	
   

  	
   

  
	
  “Revolving Credit Agreement”

  	
   

  	
   

  
	
  “Securities”

  	
   

  	
   

  
	
  “Security Register” and “Security Registrar”

  	
   

  	
   

  
	
  “Special Record Date”

  	
   

  	
   

  
	
  “Stated Interest Rate”

  	
   

  	
   

  
	
  “Stated Maturity”

  	
   

  	
   

  
	
  “Subsidiary”

  	
   

  	
   

  
	
  “Successor Corporation”

  	
   

  	
   

  
	
  “Tranche”

  	
   

  	
   

  
	
  “Trust Indenture Act”

  	
   

  	
   

  
	
  “Trustee”

  	
   

  	
   

  
	
  “United
  States”

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.02 Funded Property; Funded
  Cash.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.03
  Property Additions; Cost.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.04
  Net Earnings Certificate; Adjusted Net Earnings; Annual Interest Requirement.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.05 Compliance Certificates
  and Opinions.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.06
  Content and Form of Documents Delivered to Trustee.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.07
  Acts of Holders.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.08
  Notices, Etc. to Trustee and Company.

  	
   

  	
   

  



 


ii





















 


	
  SECTION 1.09
  Notice to Holders of Securities; Waiver.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.10 Conflict with Trust
  Indenture Act.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.11 Effect of Headings and
  Table of Contents.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.12 Successors and Assigns.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.13 Separability Clause.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.14 Benefits of Indenture.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.15 Governing Law.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.16 Submission to Jurisdiction.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.17 Waiver of Jury Trial.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.18 Legal Holidays.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.19 Investment of Cash Held
  by Trustee.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II SECURITY FORMS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01 Forms Generally.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.02 Form of Trustee’s
  Certificate of Authentication.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III THE SECURITIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01 Amount Unlimited;
  Issuable in Series.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.02
  Denominations.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.03 Execution, Dating,
  Certificate of Authentication.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.04
  Temporary Securities.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.05 Registration,
  Registration of Transfer and Exchange.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.06 Mutilated, Destroyed,
  Lost and Stolen Securities.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.07 Payment of Interest;
  Interest Rights Preserved.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.08 Persons Deemed Owners.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.09 Cancellation by Security
  Registrar.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.10 Computation of Interest.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.11 Payment to Be in Proper
  Currency.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.12 CUSIP Numbers.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV ISSUANCE OF SECURITIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01 General.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.02 Issuance of Securities on
  the Basis of Property Additions.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.03 Issuance of Securities on
  the Basis of Retired Securities.

  	
   

  	
   

  



 


iii





















 


	
  SECTION 4.04 Issuance of Securities on
  the Basis of Deposit of Cash.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V REDEMPTION OF SECURITIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01 Applicability of Article.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.02 Election to Redeem;
  Notice to Trustee.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.03 Selection of Securities
  to Be Redeemed.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.04 Notice of Redemption.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.05 Securities Payable on
  Redemption Date.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.06 Securities Redeemed in
  Part.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01 Payment of Securities;
  Lawful Possession; Maintenance of Lien.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.02 Paying Agent; Place of
  Payment; Maintenance of Office or Agency.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.03 Money for Securities
  Payments to Be Held in Trust.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.04 Corporate Existence.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.05 Maintenance of
  Properties.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.06 Payment of Taxes;
  Discharge of Liens.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.07 Insurance.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.08 Recording, Filing, etc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.09 Waiver of Certain
  Covenants.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.10 Annual Officer’s
  Certificate as to Compliance; Statement by Officer as to Default.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.11 Environmental

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII POSSESSION, USE AND
  RELEASE OF MORTGAGED PROPERTY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01 Quiet Enjoyment.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.02 Dispositions without
  Release.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.03 Release of Funded
  Property.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.04 Release of Property Not
  Constituting Funded Property.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.05 Release of Minor
  Properties.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.06 Withdrawal or Other
  Application of Funded Cash; Purchase Money Obligations.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.07 Release of Property Taken
  by Eminent Domain, etc.

  	
   

  	
   

  



 


iv





















 


	
  SECTION 8.08 Disclaimer or Quitclaim.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.09 Miscellaneous.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX SATISFACTION AND DISCHARGE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01 Satisfaction and
  Discharge of Securities.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.02 Satisfaction and
  Discharge of Indenture.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.03 Application of Trust
  Money.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.04 Company’s Right with
  Respect to Defeasance

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X EVENTS OF DEFAULT; REMEDIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01 Events of Default.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.02 Acceleration of
  Maturity; Rescission and Annulment.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.03 Entry upon Mortgaged
  Property.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.04 Power of Sale; Suits for
  Enforcement.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.05 Incidents of Sale.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.06 Collection of
  Indebtedness and Suits for Enforcement by Trustee.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.07 Application of Money
  Collected.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.08 Receiver.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.09 Trustee May File
  Proofs of Claim.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.10 Trustee May Enforce
  Claims without Possession of Securities.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.11 Limitation on Suits.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.12 Unconditional Right of
  Holders to Receive Principal, Premium and Interest.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.13 Restoration of Rights
  and Remedies.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.14 Rights and Remedies
  Cumulative.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.15 Delay or Omission Not
  Waiver.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.16 Control by Holders of
  Securities.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.17 Waiver of Past Defaults.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.18 Undertaking for Costs.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.19 Waiver of Appraisement
  and Other Laws.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI THE TRUSTEE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01 Certain Duties and
  Responsibilities.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.02 Notice of Defaults.

  	
   

  	
   

  



 


v





















 


	
  SECTION 11.03 Certain Rights of
  Trustee.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.04 Not Responsible for
  Recitals or Issuance of Securities or Application of Proceeds.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.05 May Hold
  Securities.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.06 Money Held in Trust.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.07 Compensation and
  Reimbursement.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.08 Disqualification;
  Conflicting Interests.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.09 Corporate Trustee
  Required; Eligibility.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.10 Resignation and Removal;
  Appointment of Successor.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.11 Acceptance of
  Appointment by Successor.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.12 Merger, Conversion,
  Consolidation or Succession to Business.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.13 Preferential Collection
  of Claims against Company.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.14 Co-trustees and Separate
  Trustees.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.15 Appointment of
  Authenticating Agent.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII LISTS OF HOLDERS; REPORTS
  BY TRUSTEE AND COMPANY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01 Company to Furnish
  Trustee Names and Addresses of Holders.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.02 Preservation of
  Information; Communications to Holders.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.03 Reports by Trustee.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.04 Reports by Company.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII CONSOLIDATION, MERGER,
  CONVEYANCE OR OTHER TRANSFER

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 13.01 Company
  May Consolidate, etc., Only on Certain Terms.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 13.02 Successor Corporation
  Substituted.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 13.03 Extent of Lien Hereof on
  Property of Successor Corporation.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 13.04 Release of Company upon
  Conveyance or Other Transfer.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 13.05 Merger into Company;
  Extent of Lien Hereof.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV SUPPLEMENTAL INDENTURES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.01 Supplemental Indentures
  without Consent of Holders.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.02 Supplemental Indentures
  with Consent of Holders.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.03 Execution of
  Supplemental Indentures.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.04 Effect of Supplemental
  Indentures.

  	
   

  	
   

  



 


vi





















 


	
  SECTION 14.05 Reference in Securities
  to Supplemental Indentures.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.06 Modification Without
  Supplemental Indenture.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV MEETINGS OF HOLDERS; ACTION
  WITHOUT MEETING

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.01 Purposes for Which
  Meetings May Be Called.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.02 Call, Notice and Place
  of Meetings.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.03 Persons Entitled to Vote
  at Meetings.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.04 Quorum; Action.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.05 Attendance at Meetings;
  Determination of Voting Rights; Conduct and Adjournment of Meetings.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.06 Counting Votes and
  Recording Action of Meetings.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.07 Action Without Meeting.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI IMMUNITY OF INCORPORATORS,
  STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 16.01 Liability Solely
  Corporate.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signatures

  	
   

  	
   

  
	
  Acknowledgments

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Property Description (Real Property)

  	
   

  	
   

  
	
  Schedule I

  	
  Recording Information

  	
   

  	
   

  



 


vii





















 


FIRST MORTGAGE AND DEED OF TRUST,
dated as of July 15, 2003, between INTERNATIONAL TRANSMISSION COMPANY, a corporation organized and existing under the laws of the
State of Michigan (herein called the “Company”),
and BNY MIDWEST TRUST COMPANY, a corporation organized and existing under the laws of the
State of Illinois, as Trustee (herein called the “Trustee”).


 


Recital of the Company


 


The Company has duly authorized the execution and
delivery of this Indenture, as originally executed and delivered, to provide
for the issuance from time to time of its bonds, notes or other evidences of
indebtedness (herein called the “Securities”),
to be issued in one or more series as contemplated herein, and to provide
security for the payment of the principal of and premium, if any, and interest,
if any, on the Securities; and all acts necessary to make this Indenture a
valid agreement of the Company have been performed.  For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to them in
Article I of this Indenture.


 


Granting Clauses


 


NOW, THEREFORE, THIS INDENTURE
WITNESSETH, that, in consideration of the premises and of the
purchase of the Securities by the Holders thereof, and in order to secure the
payment of the principal of and premium, if any, and interest, if any, on all
Securities from time to time Outstanding and the performance of the covenants
therein and herein contained and to declare the terms and conditions on which
such Securities are secured, the Company hereby grants, bargains, sells,
conveys, assigns, transfers, mortgages, pledges, sets over and confirms to the
Trustee, and grants to the Trustee a security interest in, the following
(subject, however, to the terms and conditions set forth in this Indenture):


 


Granting Clause First


 


All right, title and interest of the Company, as of
the date of the execution and delivery of this Indenture, as originally
executed and delivered, in and to all property, real, personal and mixed,
located in the State of Michigan (other than Excepted Property), including
without limitation all right, title and interest of the Company in and to the
following property so located (other than Excepted Property):  (a) all real property owned in fee, easements
and other interests in real property which are specifically described or
referred to in Exhibit A attached hereto and incorporated herein by
this reference; (b) all licenses, permits to use the real property of
others, franchises to use public roads, streets and other public properties,
rights of way and other rights or interests relating to the occupancy or use of
real property; (c) all facilities, machinery, equipment and fixtures for
the transmission and distribution of electric energy including, but not limited
to, all plants, air and water pollution control and sewage and solid waste
disposal facilities, switchyards, towers, substations, transformers, poles,
lines, cables, conduits, ducts, conductors, meters, regulators and all other
property used or to be used for any or all of such purposes; (d) all
buildings, offices, warehouses, structures or improvements in addition to those
referred to or otherwise included in clauses (a) and (c) above;
(e) all computers, data processing, data storage, data transmission and/or
telecommunications facilities, equipment and apparatus


 





















 


necessary for the
operation or maintenance of any facilities, machinery, equipment or fixtures
described or referred to in clause (c) above; (f) all of the
foregoing property in the process of construction; and (g) (except as
hereinbefore or hereinafter expressly excepted) all the right, title and
interest of the Company in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed in connection with
any property hereinbefore described;


 


Granting Clause Second


 


Subject to the applicable exceptions permitted by
Section 8.09(d), Section 13.03 and Section 13.05, all right,
title and interest of the Company in all property of every kind and description
and wheresoever situate, real, personal and mixed (other than Excepted
Property) which may be hereafter acquired by the Company, it being the
intention of the Company that all such property acquired by the Company after
the date of the execution and delivery of this Indenture, as originally
executed and delivered, shall be as fully embraced within and subjected to the
Lien hereof as if such property were owned by the Company as of the date of the
execution and delivery of this Indenture, as originally executed and delivered;


 


Granting Clause Third


 


Any Excepted Property, which may, from time to time
after the date of the execution and delivery of this Indenture, as originally
executed and delivered, by delivery or by an instrument supplemental to this
Indenture, be subjected to the Lien hereof by the Company, the Trustee being
hereby authorized to receive the same at any time as additional security
hereunder; it being understood that any such subjection to the Lien hereof of
any Excepted Property as additional security may be made subject to such
reservations, limitations or conditions respecting the use and disposition of
such property or the proceeds thereof as shall be set forth in such instrument;
and


 


Granting Clause Fourth


 


All tenements, hereditaments, servitudes and
appurtenances belonging or in any wise appertaining to the aforesaid property,
with the reversions and remainders thereof;


 


Excepted Property


 


Expressly excepting and excluding, however, from the
Lien of this Indenture all right, title and interest of the Company in and to
the following property, whether now owned or hereafter acquired (herein
sometimes called “Excepted Property”):


 


(a)           all cash on hand or in banks or other
financial institutions, deposit accounts, shares of stock, interests in general
or limited partnerships, bonds, notes, other evidences of indebtedness and
other securities, of whatsoever kind and nature, not hereafter paid or
delivered to, deposited with or held by the Trustee hereunder or required so to
be;


 


(b)           all contracts, leases, operating
agreements and other agreements of whatsoever kind and nature; all contract
rights, bills, notes, chattel paper and other instruments (except to the


 


2





















 


extent that any of the
same constitute securities, in which case they may be separately excepted from
the Lien of this Indenture under clause (a) above); all revenues,
income and earnings, all accounts, accounts receivable and unbilled revenues,
and all rents, tolls, issues, product and profits, claims, credits, demands and
judgments; all governmental and other licenses, permits, franchises, consents
and allowances (except to the extent that any of the same are specifically
described in clause (b) of Granting Clause First of this
Indenture, in which case they are included within the Lien of this Indenture);
and all patents, patent licenses and other patent rights, patent applications,
trade names, trademarks, copyrights, domain names, claims, credits, choses in
action and other intangible property and general intangibles including, but not
limited to, computer software;


 


(c)           All automobiles, buses, trucks, truck
cranes, tractors, trailers and similar vehicles and movable equipment; all
rolling stock, rail cars and other railroad equipment; all vessels, boats,
barges and other marine equipment; all airplanes, helicopters, aircraft engines
and other flight equipment; all parts, accessories and supplies used in
connection with any of the foregoing; and all personal property of such
character that the perfection of a security interest therein or other Lien
thereon is not governed by the Uniform Commercial Code as in effect in the
jurisdiction in which such property is located;


 


(d)           all goods, stock in trade, wares,
merchandise and inventory held for the purpose of sale or lease in the ordinary
course of business; all materials, supplies, inventory and other items of
personal property which are consumable (otherwise than by ordinary wear and
tear) in their use in the operation of the Mortgaged Property; all fuel,
including nuclear fuel, whether or not any such fuel is in a form consumable in
the operation of the Mortgaged Property, including separate components of any
fuel in the forms in which such components exist at any time before, during or
after the period of the use thereof as fuel; all hand and other portable tools
and equipment; all furniture and furnishings; and computers and data
processing, data storage, data transmission, telecommunications and other
facilities, equipment and apparatus, which, in any case, are used primarily for
administrative or clerical purposes or are otherwise not necessary for the
operation or maintenance of transmission or other electric utility facilities,
machinery, equipment or fixtures described or referred to in
clause (c) of Granting Clause First of this Indenture;


 


(e)           all coal, ore, gas, oil and other
minerals and all timber, and all rights and interests in any of the foregoing,
whether or not such minerals or timber shall have been mined or extracted or
otherwise separated from the land; and all electric energy, gas (natural or
artificial), steam, water and other products generated, produced, manufactured,
purchased or otherwise acquired by the Company;


 


(f)            the
last day of the term of each leasehold estate (oral or written) and any
agreement therefore, now or hereafter enjoyed by the Company and whether
falling within a general or specific description of property herein; provided,
however, that the Company covenants and agrees that it will hold each such last
day in trust for the use and benefit of the Holders and that it will dispose of
each such last day from time to time in accordance with such written order as
the Trustee in its discretion may give;


 


3





















 


(g)           all
permits, licenses, franchises and rights not specifically subjected or required
to be subjected to the lien hereof by the express provisions of this Indenture,
whether now owed or hereafter acquired by the Company, which by their terms or
by reason of applicable law would become void or voidable if mortgaged or
pledged hereunder by the Company or which cannot be granted, conveyed,
mortgaged, transferred or assigned by this Indenture without the consent of
other parties whose consent is not secured, or without subjecting the Trustee
to a liability not otherwise contemplated by the provisions of this Indenture,
or which otherwise may not be, or are not, hereby lawfully and effectively
granted, conveyed, mortgaged, transferred and assigned by the Company; and


 


(h)           all
real or personal property, which meets all the following conditions:


 


(1)           not specifically
described in the Granting Clauses of this Indenture,


 


(2)           not specifically
subjected or required to be subjected to the Lien hereof by the express
provisions of this Indenture, and


 


(3)           not part of or used
or for use in connection with any property specifically subjected or required
to be subjected to the Lien hereof by the express provisions of this Indenture;


 


provided, however, that,
subject to the provisions of Section 13.03 (x) if, at any time after the
occurrence of an Event of Default, the Trustee, or any separate trustee or
co-trustee appointed under Section 11.14 or any receiver appointed
pursuant to Section 10.08 or otherwise, shall have entered into possession
of all or substantially all of the Mortgaged Property, all the Excepted
Property, then owned or held or thereafter acquired by the Company, to the
extent that the same is used in connection with, or otherwise relates or is
attributable to, the Mortgaged Property, shall immediately, upon demand of the
Trustee or such other trustee or receiver, become subject to the Lien of this
Indenture to the extent not prohibited by law or by the terms of any other Lien
on such Excepted Property, and the Trustee or such other trustee or receiver
may, to the extent not prohibited by law or by the terms of any such other Lien
(and subject to the rights of the holders of all such other Liens), at the same
time likewise take possession thereof, and (y) whenever all Events of
Default shall have been cured and the possession of all or substantially all of
the Mortgaged Property shall have been restored to the Company, such Excepted
Property shall again be excepted and excluded from the Lien hereof to the
extent set forth above; it being understood that the Company may, however,
pursuant to Granting Clause Third, subject to the Lien of this Indenture
any Excepted Property, whereupon the same shall cease to be Excepted Property;


 


TO HAVE AND TO HOLD
all such property, real, personal and mixed, unto the Trustee, its successors
in trust and their assigns forever;


 


SUBJECT, HOWEVER,
to (a) Liens existing at the date of the execution and delivery of this
Indenture, as originally executed and delivered, (b) as to property
acquired by the Company after the date of the execution and delivery of this
Indenture, as originally executed and delivered, Liens existing or placed
thereon at the time of the acquisition thereof (including, but not limited to,
Purchase Money Liens), and (c) Permitted Liens;


 


4





















 


IN TRUST, NEVERTHELESS,
for the equal and ratable benefit and security of the Holders from time to time
of all Outstanding Securities without any priority of any such Security over
any other such Security;


 


PROVIDED, HOWEVER,
that the right, title and interest of the Trustee in and to the Mortgaged
Property shall cease, terminate and become void in accordance with, and subject
to the conditions set forth in, Article IX hereof, and if, thereafter, the
principal of and premium, if any, and interest, if any, on the Securities shall
have been paid to the Holders thereof, or shall have been paid to the Company
pursuant to Section 6.03 hereof, then and in that case this Indenture
shall terminate, and, upon request of the Company, the Trustee shall execute
and deliver to the Company such instruments as the Company shall require to
evidence such termination; otherwise this Indenture, and the estate and rights
hereby granted, shall be and remain in full force and effect; and


 


IT IS HEREBY COVENANTED AND
AGREED by and between the Company and the Trustee that all
the Securities are to be authenticated and delivered, and that the Mortgaged
Property is to be held, subject to the further covenants, conditions and trusts
hereinafter set forth, and the Company hereby covenants and agrees to and with
the Trustee, for the equal and ratable benefit of all Holders of the
Securities, as follows:


 


ARTICLE I



Definitions and Other Provisions of General Application


 


SECTION 1.01 
General Definitions.


 


For all purposes of this Indenture, 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
terms used herein without definition which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;


 


(c)          all
terms used herein without definition which are defined in the Uniform
Commercial Code as in effect in any jurisdiction in which any portion of the
Mortgaged Property is located shall have the meanings assigned to them therein
with respect to such portion of the Mortgaged Property;


 


(d)          all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United
States; 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 accounting principles as are generally
accepted in the United States at the date of such computation or, at the
election of the Company from time to time, at the date of the execution


 


5





















 


and delivery of this Indenture, as originally executed
and delivered; provided, however, that in determining generally accepted
accounting principles applicable to the Company, effect shall be given, to the
extent required, to any order, rule or regulation of any administrative
agency, regulatory authority or other governmental body having jurisdiction
over the Company;


 


(e)          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


 


(f)            references
to Articles, Sections and other subdivisions herein are references to Articles,
Sections and subdivisions of this Indenture.


 


“Accountant” means a Person engaged in the accounting profession or
otherwise qualified to pass on accounting matters (including, but not limited
to, a Person certified or licensed as a public accountant, whether or not then engaged
in the public accounting profession), which Person, unless required to be
Independent, may be a non-Independent Person, including an employee or
Affiliate of the Company.  Each
certificate required by any provision of this Indenture to be made by a Person
that is an Accountant shall contain a statement from the signers thereof that
such Person has read this definition and is an Accountant within the meaning
hereof.


 


“Acquisition” means
the acquisition of the Company’s business by ITC Holdings Corp. pursuant to the
Stock Purchase Agreement dated as of December 3, 2002, between ITC
Holdings Corp. and The DTE Energy Company, as amended and supplemented.


 


“Act”,
when used with respect to any Holder of a Security, has the meaning
specified in Section 1.07.


 


“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 generally 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.


 


“Annual Interest Requirements” has the meaning specified in
Section 1.04.


 


“Authenticating Agent” means any Person (other than the Company
or an Affiliate of the Company) authorized by the Trustee to act on behalf of
the Trustee to authenticate the Securities of one or more series.


 


“Authorized Officer” means the Chairman of the Board, the President, any Vice
President, the Treasurer or the Corporate Secretary of the Company, or any
other duly authorized officer of the Company evidenced as such in a Board
Resolution.


 


“Authorized Publication” means a newspaper or financial journal of general
circulation, printed in the English language and customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays; or,
in the alternative, shall mean


 


6





















 


such form of
communication as may have come into general use for the dissemination of
information of import similar to that of the information specified to be
published by the provisions hereof.  In
the event that successive weekly publications in an Authorized Publication are
required hereunder they may be made (unless otherwise expressly provided
herein) on the same or different days of the week and in the same or in
different Authorized Publications.  In
case, by reason of the suspension of publication of any Authorized Publication,
or by reason of any other cause, it shall be impractical without unreasonable
expense to make publication of any notice in an Authorized Publication as
required by this Indenture, then such method of publication or notification as
shall be made with the approval of the Trustee shall be deemed the equivalent
of the required publication of such notice in an Authorized Publication.


 


“Authorized Purposes” means the authentication and delivery of Securities, the
release of property and/or the withdrawal of cash under any of the provisions
of this Indenture.


 


“Board of Directors” means either the board of directors of the Company or any
committee thereof duly authorized to act in respect of matters relating to this
Indenture.


 


“Board Resolution” means a copy of a resolution certified by the Corporate
Secretary or an Assistant Corporate Secretary 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,
except as may be otherwise specified as contemplated by Section 3.01.


 


“Commission” means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the date of the execution and delivery of
this Indenture, as originally executed and delivered, such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body, if any, performing such duties at such time.


 


“Company” means
the Person named as the “Company” in the first paragraph of this Indenture
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 Order” or “Company Request” means a
written request or order signed in the name of the Company by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.


 


“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


 


7





















 


delivered, is located at
2 N. LaSalle Street, Suite 1020, Chicago, Illinois 60630, Attention: Corporate Trust Administration.


 


“corporation” means a corporation, limited liability company,
association, company, joint stock company or business trust.


 


“Cost” with
respect to Property Additions has the meaning specified in Section 1.03.


 


“Defaulted Interest” has the meaning specified in Section 3.07.


 


“Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 10.02.  “Interest” with
respect to a Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.


 


“Dollar” or “$” means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.


 


“Eligible Obligations” means:


 


with respect to Securities denominated in Dollars,
Government Obligations; or


 


with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Securities as
contemplated by Section 3.01.


 


“Event of Default” has the meaning specified in Section 10.01.


 


“Excepted Property” has the
meaning specified in the granting clauses of this Indenture.


 


“Expert” means a Person which is an engineer, appraiser or other
expert and which, with respect to any certificate to be signed by such Person
and delivered to the Trustee, is qualified to pass upon the matters set forth
in such certificate.  For purposes of
this definition, (a) ”engineer” means
a Person engaged in the engineering profession or otherwise qualified to pass
upon engineering matters (including, but not limited to, a Person licensed as a
professional engineer, whether or not then engaged in the engineering
profession) and (b) ”appraiser” means
a Person engaged in the business of appraising property or otherwise qualified
to pass upon the Fair Value or fair market value of property.  Each certificate required by any provision of
this Indenture to be made by a Person that is an Expert shall contain a
statement of the signers thereof that such Person has read this definition and
is an Expert within the meaning hereof.


 


“Expert’s Certificate” means a certificate signed by an Authorized Officer and by
an Expert (which Expert shall be selected either by the Board of Directors or
by an Authorized Officer, and, except as otherwise required in
Sections 4.02, 6.07 and 8.09, may be an employee or Affiliate of the
Company, the execution of such certificate by such Authorized


 


8





















 


Officer to be conclusive
evidence of such selection) and delivered to the Trustee; provided, however,
that, in connection with the release of any property from the Lien of this
Indenture, the Expert’s Certificate as to the fair value of such property, and
as to the nonimpairment by reason of such release of the security of this
Indenture in contravention of the provisions hereof, shall be made by an
Independent Expert if the fair value of such property and of all other property
released since the commencement of the then current calendar year, as set forth
in the certificates required by this Indenture, is ten per centum (10%) or more
of the principal amount of the Securities at the time Outstanding; but such a
certificate of an Independent Expert shall not be required in the case of any
release of property, if the fair value thereof as set forth in the certificates
required by this Indenture is less than Twenty-five Thousand Dollars ($25,000)
or less than one per centum (1%) of the principal amount of the Securities at
the time Outstanding.  The amount stated
in any Expert’s Certificate as to the Cost, Fair Value or fair market value of
property shall be conclusive and binding upon the Company, the Trustee and the
Holders.


 


“Fair Value”, with respect to property, means the fair value of such
property as may be determined by reference to (a) the amount which would
be likely to be obtained in an arm’s-length transaction with respect to such
property between an informed and willing buyer and an informed and willing
seller, under no compulsion, respectively, to buy or sell, (b) the amount
of investment with respect to such property which, together with a reasonable
return thereon, would be likely to be recovered through ordinary business
operations or otherwise, (c) the Cost, accumulated depreciation and
replacement cost with respect to such property and/or (d) any other
relevant factors; provided, however, that (x) the Fair Value of property
shall be determined without deduction for any Liens on such property prior to
the Lien of this Indenture (except as otherwise provided in Section 8.03)
and (y) the Fair Value to the Company of Property Additions shall not
reflect any reduction relating to the fact that such Property Additions may be
of less value to a Person which is not the owner or operator of the Mortgaged
Property or any portion thereof than to a Person which is such owner or
operator.  Fair Value may be determined,
without physical inspection, by the use of accounting and engineering records
and other data maintained by the Company or otherwise available to the Expert certifying
the same.


 


“Funded Cash” has the meaning specified in Section 1.02.


 


“Funded Property” has the meaning specified in Section 1.02.


 


“Governmental Authority” means the government of the United States or of any State
or Territory thereof or of the District of Columbia or of any county,
municipality or other political subdivision of any thereof, or any department,
agency, authority or other instrumentality of any of the foregoing.


 


“Government Obligations” means:


 


(a)           direct obligations
of, or obligations the principal of and interest on which are unconditionally
guaranteed by, the United States entitled to the benefit of the full faith and
credit thereof; and


 


9





















 


(b)           certificates,
depositary receipts or other instruments which evidence a direct ownership
interest in obligations described in clause (a) above or in any
specific interest or principal payments due in respect thereof; provided,
however, that the custodian of such obligations or specific interest or
principal payments shall be a bank or trust company (which may include the
Trustee or any Paying Agent) subject to Federal or State supervision or
examination with a combined capital and surplus of at least Fifty Million
Dollars ($50,000,000); and provided, further, that except as may be otherwise
required by law, such custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other instruments the full amount
received by such custodian in respect of such obligations or specific payments
and shall not be permitted to make any deduction therefrom.


 


“Holder” means a Person in whose name a Security is registered in
the Security Register.


 


“Indenture” means this instrument as originally executed and delivered
and as it may from time to time be supplemented or amended by one or more
indentures or other instruments 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 3.01.


 


“Independent”, when applied
to any Accountant or Expert, means such a Person who (a) is in fact
independent, (b) does not have any direct material financial interest in
the Company or in any other obligor upon the Securities or in any Affiliate of
the Company or of such other obligor, (c) is not connected with the
Company or such other obligor as an officer, employee, promoter, underwriter,
trustee, partner, director or any person performing similar functions and
(d) is approved by the Trustee in the exercise of reasonable care.  Each certificate 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.


 


“Independent Expert’s Certificate” means a certificate signed by an Independent Expert and
delivered to the Trustee.


 


“Interest Payment Date”, when used with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.


 


“Investment Securities” means any of the following obligations or securities on
which neither the Company, any other obligor on the Securities nor any
Affiliate of either is the obligor: 
(a) Government Obligations; (b) interest bearing deposit
accounts (which may be represented by certificates of deposit) in any national
or state bank (which may include the Trustee or any Paying Agent) or savings
and loan association which has outstanding securities rated by a nationally
recognized rating organization in either of the two (2) highest
rating categories (without regard to modifiers) for short term securities or in
any of the three (3) highest rating categories (without regard to
modifiers) for long term securities; (c) bankers’ acceptances drawn on and
accepted by any commercial bank (which may include the Trustee or any Paying
Agent) which has outstanding securities rated by a nationally recognized rating
organization in either of the two (2) highest rating categories (without
regard to modifiers) for short term


 


10





















 


securities or in any of
the three (3) highest rating categories (without regard to modifiers)
for long term securities; (d) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, any State
or Territory of the United States or the District of Columbia, or any political
subdivision of any of the foregoing, which are rated by a nationally recognized
rating organization in either of the two (2) highest rating
categories (without regard to modifiers) for short term securities or in any of
the three (3) highest rating categories (without regard to modifiers) for
long term securities; (e) bonds or other obligations of any agency or
instrumentality of the United States; (f) corporate debt securities which
are rated by a nationally recognized rating organization in either of the
two (2) highest rating categories (without regard to modifiers) for
short term securities or in any of the three (3) highest rating
categories (without regard to modifiers) for long term securities;
(g) repurchase agreements with respect to any of the foregoing obligations
or securities with any banking or financial institution (which may include the
Trustee or any Paying Agent) which has outstanding securities rated by a
nationally recognized rating organization in either of the
two (2) highest rating categories (without regard to modifiers) for
short term securities or in any of the three (3) highest rating
categories (without regard to modifiers) for long term securities;
(h) securities issued by any regulated investment company (including any
investment company for which the Trustee or any Paying Agent is the advisor),
as defined in Section 851 of the Internal Revenue Code of 1986, as
amended, or any successor Section of such Code or successor federal
statute, provided that the portfolio of such investment company is limited to
obligations or securities of the character and investment quality contemplated
in clauses (a) through (f) above and repurchase agreements which
are fully collateralized by any of such obligations or securities; and
(i) any other obligations or securities which may lawfully be purchased by
the Trustee in its capacity as such.


 


“Lien” means any mortgage, deed of trust, pledge, security
interest, encumbrance, easement, lease, reservation, restriction, servitude,
charge or similar right and any other lien of any kind, including, without
limitation, any conditional sale or other title retention agreement, any lease
in the nature thereof, and any defect, irregularity, exception or limitation in
record title.


 


“Maturity”, when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as provided in such Security or in this Indenture, whether at the
Stated Maturity, by declaration of acceleration, upon call for redemption or
otherwise.


 


“Mortgaged Property” means, as of any particular time, all property which at
such time is subject to the Lien of this Indenture.


 


“Net Earnings Certificate” has the meaning provided in Section 1.04.


 


“Notice of Default” has the meaning specified in Section 10.01.


 


11





















 


“Officer’s Certificate” means a certificate signed by an Authorized Officer and
delivered to the Trustee.


 


“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.


 


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


 


(a)           Securities
theretofore canceled or delivered to the Securities Registrar or the Trustee
for cancellation;


 


(b)           Securities deemed to
have been paid for all purposes of this Indenture in accordance with
Section 9.01 (whether or not the Company’s indebtedness in respect thereof
shall be satisfied and discharged for any other purpose); and


 


(c)           Securities which
have been paid or in exchange for which or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it and the Company that such Securities are held
by a bona fide purchaser or purchasers in whose hands such Securities are valid
obligations of the Company; provided, however, that in determining whether or
not the Holders of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series or Tranche,
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder or whether or not a quorum is present at a meeting of Holders
of Securities,


 


(x)            Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor (unless the Company, such obligor or such
Affiliate owns all Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series and each such Tranche, as the case
may be, determined without regard to this clause (x)) 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 or waiver or upon any such
determination as to the presence of a quorum, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded; provided, however, that Securities so owned which have been
pledged in good faith may be regarded as Outstanding if it is established to
the reasonable satisfaction of the Trustee that the pledgee, and not the
Company, any such other obligor or Affiliate of either thereof, has the right
so to act 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; and


 


(y)           the principal amount
of a Discount Security that shall be deemed to be Outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as
of the date of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 10.02; and


 


12





















 


provided, further, that, in the case of any Security
the principal of which is payable from time to time without presentment or
surrender, the principal amount of such Security that shall be deemed to be
Outstanding at any time for all purposes of this Indenture shall be the
original principal amount thereof less the aggregate amount of principal
thereof theretofore paid.


 


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


 


“Periodic Offering” means an
offering of Securities of a series from time to time any or all of the specific
terms of which Securities, including without limitation 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 from time to time subsequent to the initial request
for the authentication and delivery of such Securities by the Trustee, all as
contemplated in Section 3.01 and clause (b) of
Section 4.01.


 


“Permitted Liens” means, as of any particular time, any of the following:


 


(a)           Liens for taxes,
assessments and other governmental charges or requirements which are not
delinquent or which are being contested in good faith by appropriate
proceedings;


 


(b)           (i) mechanics’,
workmen’s, repairmen’s, materialmen’s, warehousemen’s and carriers’ Liens,
other Liens incident to construction, (ii) Liens or privileges of any
employees of the Company for salary or wages earned, but not yet payable, and
(iii) other Liens, including without limitation Liens for worker’s
compensation awards, in the case of each of clauses (i), (ii) and
(iii) arising in the ordinary course of business for charges or
requirements which are not delinquent or which are being contested in good
faith and by appropriate proceedings;


 


(c)           Liens in respect of
attachments, judgments or awards arising out of judicial or administrative
proceedings (i) in an amount not exceeding the greater of
(A) Five Million Dollars ($5,000,000) and (B) three percentum
(3%) of the aggregate principal amount of the Securities then Outstanding or
(ii) with respect to which the Company shall (X) in good faith be
prosecuting an appeal or other proceeding for review and with respect to which
the Company shall have secured a stay of execution pending such appeal or other
proceeding or (Y) have the right to prosecute an appeal or other
proceeding for review;


 


(d)           easements, leases,
reservations or other rights of others in, on, over and/or across, and laws,
regulations and restrictions affecting, and defects, irregularities, exceptions
and limitations in title to, the Mortgaged Property or any part thereof;
provided, however, that such easements, leases, reservations, rights, laws,
regulations, restrictions, defects, irregularities, exceptions and limitations
do not in the aggregate materially impair the use by the Company of the
Mortgaged Property considered as a whole for the purposes for which it is held
by the Company;


 


(e)           (i) defects,
irregularities, exceptions and limitations in title to real property subject to
rights-of-way in favor of the Company or used or to be used by the Company
primarily for right-of-way purposes or real property held under lease,
easement, license or similar right;


 


13





















 


provided, however, that (x) the Company shall have obtained from the
apparent owner or owners of such real property a sufficient right, by the terms
of the instrument granting such right-of-way, lease, easement, license or
similar right, to the use thereof for the purposes for which the Company
acquired the same, (y) the Company has power under eminent domain or
similar statutes to remove such defects, irregularities, exceptions or limitations
or (z) such defects, irregularities, exceptions and limitations may be
otherwise remedied without undue effort or expense; and (ii) defects,
irregularities, exceptions and limitations in title to flood lands, flooding
rights and/or water rights;


 


(f)            Liens securing
indebtedness or other obligations neither created, assumed nor guaranteed by
the Company nor on account of which it customarily pays interest upon real
property or rights in or relating to real property acquired by the Company for
the purpose of the transmission or distribution of electric energy, gas or
water, for the purpose of telephonic, telegraphic, radio, wireless or other
electronic communication or otherwise for the purpose of obtaining
rights-of-way;


 


(g)           leases existing at
the date of the execution and delivery of this Indenture, as originally
executed and delivered, affecting properties owned by the Company at said date
and renewals and extensions thereof; and leases affecting such properties
entered into after such date or affecting properties acquired by the Company
after such date which, in either case, (i) have respective terms of not
more than ten (10) years (including extensions or renewals at the option
of the tenant) or (ii) do not materially impair the use by the Company of
such properties for the respective purposes for which they are held by the
Company;


 


(h)           Liens vested in
lessors, licensors, franchisors or permitters for rent or other amounts to
become due or for other obligations or acts to be performed, the payment of
which rent or the performance of which other obligations or acts is required
under leases, subleases, licenses, franchises or permits, so long as the
payment of such rent or other amounts or the performance of such other
obligations or acts is not delinquent or is being contested in good faith and
by appropriate proceedings;


 


(i)            controls,
restrictions, obligations, duties and/or other burdens imposed by federal,
state, municipal or other law, or by rules, regulations or orders of
Governmental Authorities, upon the Mortgaged Property or any part thereof or
the operation or use thereof or upon the Company with respect to the Mortgaged
Property or any part thereof or the operation or use thereof or with respect to
any franchise, grant, license, permit or public purpose requirement, or any
rights reserved to or otherwise vested in Governmental Authorities to impose
any such controls, restrictions, obligations, duties and/or other burdens;


 


(j)            rights which
Governmental Authorities may have by virtue of franchises, grants, licenses,
permits or contracts, or by virtue of law, to purchase, recapture or designate
a purchaser of or order the sale of the Mortgaged Property or any part thereof,
to terminate franchises, grants, licenses, permits, contracts or other rights
or to regulate the property and business of the Company;


 


14





















 


(k)           Liens required by
law or governmental regulations (i) as a condition to the transaction of
any business or the exercise of any privilege or license, (ii) to enable
the Company to maintain self-insurance or to participate in any funds
established to cover any insurance risks, (iii) in connection with workmen’s
compensation, unemployment insurance, social security, any pension or welfare
benefit plan or (iv) to share in the privileges or benefits required for
companies participating in one or more of the arrangements described in
clauses (ii) and (iii) above;


 


(l)            rights reserved to
or vested in others to take or receive any part of any coal, ore, gas, oil and
other minerals, any timber and/or any gas, water and any other products,
developed, produced, manufactured, generated, purchased or otherwise acquired
by the Company or by others on property of the Company;


 


(m)          (i)  rights and
interests of Persons other than the Company arising out of contracts,
agreements and other instruments to which the Company is a party and which
relate to the common ownership or joint use of property; and (ii) all
Liens on the interests of Persons other than the Company in property owned in
common by such Persons and the Company if and to the extent that the
enforcement of such Liens would not adversely affect the interests of the
Company in such property in any material respect;


 


(n)           any Liens which have
been bonded for the full amount in dispute or for the payment of which other
adequate security arrangements have been made;


 


(o)           rights and interests
granted pursuant to Section 8.02(c);


 


(p)           Prepaid Liens;


 


(q)           Purchase Money Liens
and other Liens existing or placed upon property at the time of, or within 180
days after, the acquisition thereof by the Company;


 


(r)            Liens created in
connection with the issuance of tax-exempt debt securities to finance the
acquisition or construction of property to be used by the Company;


 


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


 


(t)            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 of the Company; and


 


(u)           Liens securing
indebtedness up to twenty five million dollars ($25,000,000) under the
Revolving Credit Agreement.


 


“Person” means
any individual, corporation, partnership, limited liability partnership, joint
venture, trust or unincorporated organization or any Governmental Authority.


 


15





















 


“Place of Payment”, when used with respect to the Securities of any series,
or any Tranche thereof, means the place or places, specified as contemplated by
Section 3.01, at which, subject to Section 6.02, principal of and
premium, if any, and interest, if any, on the Securities of such series or
Tranche are payable.


 


“Predecessor Security” 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 3.06 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Security shall be deemed (to the
extent lawful) to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.


 


“Prepaid Lien” means any Lien securing indebtedness for the payment,
prepayment or redemption of which there shall have been irrevocably deposited
in trust with the trustee or other holder of such Lien moneys and/or Investment
Securities which (together with the interest reasonably expected to be earned
from the investment and reinvestment in Investment Securities of the moneys
and/or the principal of and interest on the Investment Securities so deposited)
shall be sufficient for such purpose; provided, however, that if such
indebtedness is to be redeemed or otherwise prepaid prior to the stated
maturity thereof, any notice requisite to such redemption or prepayment shall
have been given in accordance with the instrument creating such Lien or
irrevocable instructions to give such notice shall have been given to such
trustee or other holder.


 


“Property Additions” has the meaning specified in Section 1.03.


 


“Purchase Money Lien” means, with respect to any property being acquired or
disposed of by the Company or being released from the Lien of this Indenture, a
Lien on such property which


 


(a)           is taken or retained
by the transferor of such property to secure all or part of the purchase price
thereof;


 


(b)           is granted to one or
more Persons other than the transferor which, by making advances or incurring
an obligation, give value to enable the grantor of such Lien to acquire rights
in or the use of such property;


 


(c)           is granted to any
other Person in connection with the release of such property from the Lien of
this Indenture on the basis of the deposit with the Trustee or the trustee or
other holder of a Lien prior to the Lien of this Indenture of obligations
secured by such Lien on such property (as well as any other property subject
thereto);


 


(d)           is held by a trustee
or agent for the benefit of one or more Persons described in clause (a),
(b) and/or (c) above, provided that such Lien may be held, in
addition, for the benefit of one or more other Persons which shall have
theretofore given, or may thereafter give, value to or for the benefit or
account of the grantor of such Lien for one or more other purposes; or


 


16





















 


(e)           otherwise
constitutes a purchase money mortgage or a purchase money security interest
under applicable law;


 


and, without limiting the generality of the foregoing,
for purposes of this Indenture, the term Purchase Money Lien shall be deemed to
include any Lien described above whether or not such Lien (x) shall permit the
issuance or other incurrence of additional indebtedness secured by such Lien on
such property, (y) shall permit the subjection to such Lien of additional
property and the issuance or other incurrence of additional indebtedness on the
basis thereof and/or (z) shall have been granted prior to the acquisition,
disposition or release of such property, shall attach to or otherwise cover
property other than the property being acquired, disposed of or released and/or
shall secure obligations issued prior and/or subsequent to the issuance of the
obligations delivered in connection with such acquisition, disposition or
release.


 


“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 at which it
is to be redeemed pursuant to this Indenture.


 


“Regular Record Date” for the interest payable on any Interest Payment Date on
the Securities of any series means the date specified for that purpose as
contemplated by Section 3.01.


 


“Required Currency” has the
meaning specified in Section 3.11.


 


“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.


 


“Retired Securities” means any Securities authenticated and delivered under
this Indenture which (i) no longer remain Outstanding by reason of the
applicability of clause (a) or (b) in the definition of “Outstanding”
(other than any Predecessor Security of any Security), (ii) have not been
made the basis under any of the provisions of this Indenture of one or more
Authorized Purposes and (iii) have not been paid, redeemed, purchased or
otherwise retired by the application thereto of Funded Cash.


 


“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.


 


“Securities” means any
bonds, notes and other evidences of indebtedness authenticated and delivered
under this Indenture.


 


17





















 


“Security Register”
and “Security Registrar” have the respective meanings specified in
Section 3.05.


 


“Special Record Date” for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to
Section 3.07.


 


“Stated Interest Rate” means a rate (whether fixed or variable) at which an
obligation by its terms is stated to bear simple interest.  Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest Rate on an
obligation shall be made (a) if the Company’s obligations in respect of
any other indebtedness shall be evidenced or secured in whole or in part by such
obligation, by reference to the lower of the Stated Interest Rate on such
obligation and the Stated Interest Rate on such other indebtedness,
(b) without regard to the effective interest cost to the Company of such
obligation or of any such other indebtedness and (c) with respect to
variable interest rate indebtedness under Section 3.01, shall be
determined with reference to the rate or rates in effect on the date
immediately preceding such determination or the rate to be in effect upon initial
authentication..


 


“Stated Maturity”,  when used
with respect to any obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of such obligation or
such installment of principal or interest is stated to be due and payable
(without regard to any provisions for redemption, prepayment, acceleration,
purchase or extension).


 


“Subsidiary”  of any Person means any Person of which
such first Person 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).


 


“Successor Corporation” has
the meaning set forth in Section 13.01.


 


“Tranche” means a group of
Securities which (a) are of the same series and (b) have identical
terms except as to principal amount and/or date of issuance.


 


“Trust Indenture Act” means, as of any time, the Trust Indenture Act of 1939, or
any successor statute, as in effect at such time.


 


“Trustee” means the Person
named as the “Trustee” in the first paragraph of this Indenture until a
successor trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean such successor Trustee,
and, if at any time there is more than one Person acting as trustee hereunder, “Trustee”
shall mean each such Person so acting.


 


“United States” means the United States of America, its Territories, its
possessions and other areas subject to its political jurisdiction.


 


18





















 


SECTION 1.02 
Funded Property; Funded Cash.


 


“Funded Property”
means:


 


(a)          all
Property Additions to the extent that the same shall have been designated in an
Expert’s Certificate delivered to the Trustee to be deemed to be Funded
Property;


 


(b)          all
Property Additions to the extent that the same shall have been made the basis
of the authentication and delivery of Securities under this Indenture pursuant
to Section 4.02;


 


(c)          all
Property Additions to the extent that the same shall have been made the basis
of the release of property from the Lien of this Indenture pursuant to
Section 8.03;


 


(d)          all
Property Additions to the extent that the same shall have been substituted for
Funded Property retired pursuant to Section 8.02;


 


(e)          all
Property Additions to the extent that the same shall have been made the basis
of the withdrawal of cash held by the Trustee pursuant to Section 4.04 or
8.06; and


 


(f)           all
Property Additions to the extent that the same shall have been used as the basis
of a credit against, or otherwise in satisfaction of, the requirements of any
sinking, improvement, maintenance, replacement or similar fund or analogous
provision established with respect to the Securities of any series, or any
Tranche thereof, as contemplated by Section 3.01; provided, however, that
any such Property Additions shall cease to be Funded Property when all of the
Securities of such series or Tranche shall have been paid.


 


In the event that in any certificate filed with the
Trustee in connection with any of the transactions referred to in
clauses (a), (b), (c), (e) and (f) of this Section, only a part
of the Cost or Fair Value of the Property Additions described in such
certificate shall be required for the purposes of such certificate, then such
Property Additions shall be deemed to be Funded Property only to the extent so
required for the purpose of such certificate.


 


All Funded Property that shall be abandoned,
destroyed, released or otherwise disposed of shall for the purpose of Section 1.03
hereof be deemed Funded Property retired and for other purposes of this
Indenture shall thereupon cease to be Funded Property but as in this Indenture
provided may at any time thereafter again become Funded Property.  Neither any reduction in the Cost or book
value of property recorded in the plant account of the Company, nor the
transfer of any amount appearing in such account to intangible and/or
adjustment accounts, otherwise than in connection with actual retirements of
physical property abandoned, destroyed, released or disposed of, and otherwise
than in connection with the removal of such property in its entirety from plant
account, shall be deemed to constitute a retirement of Funded Property.


 


The Company may make allocations, on a pro-rata or
other reasonable basis (including, but not limited to, the designation of
specific properties or the designation of all or a specified portion of the
properties reflected in one or more generic accounts or subaccounts in


 


19





















 


the Company’s books of
account), for the purpose of determining the extent to which fungible
properties, or other properties not otherwise identified, reflected in the same
generic account or subaccount in the Company’s books of account constitute
Funded Property or Funded Property retired.


 


“Funded Cash” means:


 


(a)           cash, held by the
Trustee hereunder, to the extent that it represents the proceeds of insurance
on Funded Property (except as otherwise provided in Section 6.07), or cash
deposited in connection with the release of Funded Property pursuant to
Article VIII, or the payment of the principal of, or the proceeds of the
release of, obligations secured by Purchase Money Lien and delivered to the
Trustee pursuant to Article VIII, all subject, however, to the provisions
of Section 6.07 and Section 8.06; and


 


(b)           any cash deposited
with the Trustee under Section 4.04.


 


SECTION 1.03  Property
Additions; Cost.


 


(a)          “Property Additions”
means, as of any particular time, any item, unit or element of property which
at such time is owned by the Company and is subject to the Lien of this
Indenture; provided, however, that Property Additions shall not include:


 


(i)            goodwill,
going concern value rights or intangible property except as provided in subsection (c) of
this Section; or


 


(ii)           any
property the cost of acquisition or construction of which is, in accordance
with generally accepted accounting principles, properly chargeable to an
operating expense account of the Company.


 


(b)          When
any Property Additions are certified to the Trustee as the basis of any
Authorized Purpose (except as otherwise provided in Section 8.03 and
Section 8.06),


 


(i)            there shall be
deducted from the Cost or Fair Value to the Company thereof, as the case may be
(as of the date so certified), an amount equal to the Cost (or as to Property
Additions of which the Fair Value to the Company at the time the same became
Funded Property was certified to be an amount less than the Cost as determined
pursuant to this Section, then such Fair Value, as so certified, in lieu of
Cost) of all Funded Property of the Company retired to the date of such
certification (other than the Funded Property, if any, in connection with the
application for the release of which such certificate is filed) and not
theretofore deducted from the Cost or Fair Value to the Company of Property
Additions theretofore certified to the Trustee, and


 


(ii)           there may, at the
option of the Company, be added to such Cost or Fair Value, as the case may be,
the sum of


 


(A)         the
principal amount of any obligations secured by Purchase Money Lien, not
theretofore so added and which the Company then elects so to add, which shall
theretofore have been delivered to the Trustee or the trustee or other holder
of a Lien prior to the Lien of this


 


20





















 


Indenture as the basis of the release of Funded
Property retired from the Lien of this Indenture or such prior Lien, as the
case may be;


 


(B)         ten-sevenths
(10/7) of the amount of any cash, not theretofore so added and which the
Company then elects so to add, which shall theretofore have been delivered to
the Trustee or the trustee or other holder of a Lien prior to the Lien of this
Indenture as the proceeds of insurance on Funded Property retired (to the
extent of the portion thereof deemed to be Funded Cash) or as the basis of the
release of Funded Property retired from the Lien of this Indenture or from such
prior Lien, as the case may be;


 


(C)         ten-sevenths
(10/7) of the principal amount of any Security or Securities, or portion of
such principal amount, not theretofore so added and which the Company then
elects so to add, (I) which shall theretofore have been delivered to the
Trustee as the basis of the release of Funded Property retired or (II) the
right to the authentication and delivery of which under the provisions of
Section 4.03 shall at any time theretofore have been waived under
Section 8.03(d)(iii) as the basis of the release of Funded Property
retired;


 


(D)         the
Cost or Fair Value to the Company (whichever shall be less), after making any
deductions and any additions pursuant to this Section, of any Property
Additions, not theretofore so added and which the Company then elects so to
add, which shall theretofore have been made the basis of the release of Funded
Property retired (such Fair Value to be the amount shown in the Expert’s
Certificate delivered to the Trustee in connection with such release); and


 


(E)          the
Cost to the Company of any Property Additions not theretofore so added and
which the Company then elects so to add, to the extent that the same shall have
been substituted for Funded Property retired;


 


provided, however, that the aggregate of the amounts added under
clause (ii) above shall in no event exceed the amounts deducted under
clause (i) above.


 


(c)          Except
as otherwise provided in Section 8.03, the term “Cost” with respect to Property Additions
shall mean the sum of (i) any cash delivered in payment therefor or for
the acquisition thereof, (ii) an amount equivalent to the fair market
value in cash (as of the date of delivery) of any securities or other property
delivered in payment therefor or for the acquisition thereof, (iii) the
principal amount of any obligations secured by a prior Lien upon such Property
Additions outstanding at the time of the acquisition thereof, (iv) the
principal amount of any other obligations incurred or assumed in connection
with the payment for such Property Additions or for the acquisition thereof and
(v) any other amounts which, in accordance with generally accepted
accounting principles, are properly charged or chargeable to the plant or other
property accounts of the Company with respect to such Property Additions as
part of the cost of construction or acquisition thereof, including, but not
limited to, any allowance for funds used during construction or any similar or
analogous amount; provided, however, that, notwithstanding any other provision
of this Indenture,


 


(x)            with respect to Property Additions
owned by a successor corporation immediately prior to the time it shall have
become such by consolidation or merger or acquired by a successor corporation
in or as a result of a consolidation or merger (excluding, in any case,


 


21





















 


Property Additions
owned by the Company immediately prior to such time), Cost shall mean the
amount or amounts at which such Property Additions are recorded in the plant or
other property accounts of such successor corporation, or the predecessor
corporation from which such Property Additions are acquired, as the case may
be, immediately prior to such consolidation or merger;


 


(y)           with respect to Property Additions
which shall have been acquired (otherwise than by construction) by the Company
without any consideration consisting of cash, securities or other property or
the incurring or assumption of indebtedness, no determination of Cost shall be
required, and, wherever in this Indenture provision is made for Cost or Fair
Value, Cost with respect to such Property Additions shall mean an amount equal
to the Fair Value to the Company thereof or, if greater, the aggregate amount
reflected in the Company’s books of account with respect thereto upon the
acquisition thereof; and


 


(z)            in no event shall the Cost of
Property Additions be required to reflect any depreciation or amortization in
respect of such Property Additions, or any adjustment to the amount or amounts
at which such Property Additions are recorded in plant or other property
accounts due to the non-recoverability of investment or otherwise.


 


If any Property Additions are shown by the Expert’s
Certificate provided for in Section 4.02(b)(ii) to include property
which has been used or operated by others than the Company in a business
similar to that in which it has been or is to be used or operated by the
Company, the Cost thereof need not be reduced by any amount in respect of any
goodwill, going concern value rights and/or intangible property simultaneously
acquired for which no separate or distinct consideration shall have been paid
or apportioned, and in such case the term Property Additions as defined herein
may include such goodwill, going concern value rights and intangible property.


 


SECTION 1.04  Net
Earnings Certificate; Adjusted Net Earnings; Annual Interest Requirement.


 


“Net Earnings Certificate” means a certificate signed by
an Authorized Officer of the Company and an Accountant stating:


 


(a)           the Adjusted Net
Earnings of the Company for a period of twelve (12) consecutive calendar months
within the eighteen (18) calendar months immediately preceding the first day of
the month in which the Company Order requesting the authentication and delivery
under this Indenture of Securities is delivered to the Trustee, specifying:


 


(1)           its operating
revenues (which may include revenues of the Company subject when collected to
possible refund at a future date) with the principal divisions thereof;


 


(2)           its operating
expenses, with the principal divisions thereof, including, without limitation,
(a) expenses and accruals for operations, maintenance and repairs,
(b) depreciation and amortization, (c) expenses for taxes other than
income, profits and other taxes measured by, or dependent on, net income,
(d) assessments, (e) rental expense and (f) insurance;


 


(3)           the amount remaining
after deducting the amount required to be stated in such certificate by
clause (2) above from the amount required to be stated therein by
clause (1) above;


 


22





















 


(4)           its rental revenues
(net) not otherwise included above;


 


(5)           the sum of the
amounts required to be stated in such certificate by clauses (3) and
(4) of this Section;


 


(6)           its other income
(net);


 


(7)           the sum of the
amounts required to be stated in such certificate by clauses (5) and
(6) of this Section;


 


(8)           the amount, if any,
by which the aggregate of (a) such other income (net) and (b) that
portion of the amount required to be stated in such certificate by
clause (5) above which, in the opinion of the signers, is directly
derived from the operations of property (other than paving, grading and other
improvements to, under or upon public highways, bridges, parks or other public
properties of analogous character) not subject to the Lien of this Indenture at
the date of such certificate, exceeds fifteen per centum (15%) of the sum
required to be stated by clause (7) above; provided, however, if the
amount required to be stated in such certificate by clause (5) above
includes revenues from the operation of property not subject to the Lien of this
Indenture, there shall be included in the calculation to be made pursuant to
this clause (8) such reasonable interdepartmental or interproperty
revenues and expenses between the Mortgaged Property and the property not
subject to the Lien hereof as shall be allocated to such respective properties
by the Company; and


 


(9)           the Adjusted Net
Earnings of the Company for such period of twelve (12) consecutive calendar
months (being the amount remaining after deducting in such certificate the
amount required to be stated by clause (8) above from the sum
required to be stated by clause (7) above).


 


(b)           the “Annual Interest
Requirements”, being the interest requirements for twelve (12) months, at the
respective Stated Interest Rates, if any, borne prior to Maturity, upon:


 


i. all Securities Outstanding hereunder at the date of
such certificate, except any for the payment or redemption of which the
Securities applied for are to be issued; provided, however, that, if
Outstanding Securities of any series bear interest at a variable rate or rates,
then the interest requirement on the Securities of such series shall be
determined by reference to the rate or rates in effect on the date next
preceding the date of such certificate;


 


ii. all Securities then applied for in pending
applications for new Securities, including the application in connection with
which such certificate is made; provided, however, that if Securities of any
series are to bear interest at a variable rate or rates, then the interest
requirement on the Securities of such series shall be determined by reference
to the rate or rates to be in effect at the time of the initial authentication
and deliver of such Securities; and provided, further, that the determination
of the interest requirement on Securities of a series subject to a Periodic
Offering shall be further subject to the provisions of Section 4.01(d);
and


 


iii. the principal amount of all other indebtedness
(except indebtedness for the payment of which the Securities applied for are to
be issued and indebtedness secured by a Prepaid Lien prior to the Lien of this
Indenture upon property subject to the Lien of this Indenture),


 


23





















 


outstanding on the date
of such certificate and secured by Lien prior to the Lien of this Indenture
upon property subject to the Lien of this Indenture, if such indebtedness has
been issued, assumed or guaranteed by the Company or if the Company customarily
pays the interest upon the principal thereof; provided, however, that if any
such indebtedness bears interest at a variable rate or rates, then the interest
requirement on such indebtedness shall be determined by reference to the rate
or rates in effect on the date next preceding the date of such certificate.


 


Notwithstanding anything herein to the contrary,
neither profits nor losses from the sale or other disposition of property, nor
extraordinary items of any kind or nature (including such items as transaction
costs, transition costs and costs associated with any change in accounting
principals, relating directly or indirectly to the Acquisition or to the
Company’s status as a stand-alone company), whether items of revenue or
expense, shall be included in calculating Adjusted Net Earnings in accordance
with clause (a) above.


 


If any of the property of the Company owned by it at
the time of the making of any Net Earnings Certificate (a) shall have been
acquired during or after any period for which Adjusted Net Earnings of the
Company are to be computed, (b) shall not have been acquired in exchange
or substitution for property the net earnings of which have been included in
the Adjusted Net Earnings of the Company and (c) had been operated as a
separate unit and items of revenue and expense attributable thereto are readily
ascertainable, then the Adjusted Net Earnings of such property (computed in the
manner in this Section provided for the computation of the Adjusted Net
Earnings of the Company) during such period or such part of such period as
shall have preceded the acquisition thereof, to the extent that the same have
not otherwise been included in the Adjusted Net Earnings of the Company, shall
be so included.


 


In any case where a Net Earnings Certificate is
required as a condition precedent to the authentication and delivery of
Securities, such certificate shall also be made and signed by an independent
public accountant, if the aggregate principal amount of Securities then applied
for plus the aggregate principal amount of Securities authenticated and
delivered hereunder since the commencement of the then current calendar year
(other than those with respect to which a Net Earnings Certificate is not
required, or with respect to which a Net Earnings Certificate made and signed
by an independent public accountant has previously been furnished to the
Trustee) is ten per centum (10%) or more of the principal amount of the
Securities at the time Outstanding; provided, that no Net Earnings Certificate
need be made and signed by any person other than an Authorized Officer of the
Company and an Accountant, as to dates or periods not covered by annual reports
required to be prepared by the Company pursuant to the Indenture, in the case
of conditions precedent which depend upon a state of facts as of a date or
dates or for a period or periods different from that required to be covered by
such annual reports.


 


SECTION 1.05 
Compliance Certificates and Opinions.


 


Except as otherwise expressly provided in this
Indenture, 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 an Officer’s Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, it being understood that in the case of any


 


24





















 


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
with a condition or covenant provided for in this Indenture shall include:


 


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


 


(b)          a
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;


 


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


 


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


 


SECTION 1.06  Content and
Form of Documents Delivered to Trustee.


 


(a)          Any
Officer’s Certificate may be based (without further examination or
investigation), insofar as it relates to or is dependent upon legal matters,
upon an opinion of, or representations by, counsel, and, insofar as it relates
to or is dependent upon matters which are subject to verification by
Accountants, upon a certificate or opinion of, or representations by, an
Accountant, and, insofar as it relates to or is dependent upon matters which
are required in this Indenture to be covered by a certificate or opinion of, or
representations by, an Expert, upon the certificate or opinion of, or
representations by, an Expert, unless, in any case, such officer has actual knowledge
that the certificate or opinion or representations with respect to the matters
upon which such Officer’s Certificate may be based as aforesaid are erroneous.


 


Any Expert’s Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
legal matters, upon an opinion of, or representations by, counsel, and insofar
as it relates to or is dependent upon factual matters, information with respect
to which is in the possession of the Company and which are not subject to
verification by Experts, upon a certificate or opinion of, or representations
by, an officer or officers of the Company, unless such Expert has actual
knowledge that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion may be based as aforesaid are
erroneous.


 


Any certificate of an Accountant may be based (without
further examination or investigation), insofar as it relates to or is dependent
upon legal matters, upon an opinion of, or representations by, counsel, and
insofar as it relates to or is dependent upon factual matters, information with
respect to which is in the possession of the Company and which are not subject
to verification by Accountants, upon a certificate of, or representations by,
an officer or officers of the Company, unless such Accountant has actual
knowledge that the certificate or opinion or


 


25





















 


representations with
respect to the matters upon which his certificate or opinion may be based as
aforesaid are erroneous.


 


Any Opinion of Counsel may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
factual matters, information with respect to which is in the possession of the
Company, upon a certificate of, or representations by, an officer or officers
of the Company, and, insofar as it relates to or is dependent upon matters
which are subject to verification by Accountants upon a certificate or opinion
of, or representations by, an Accountant, and, insofar as it relates to or is
dependent upon matters required in this Indenture to be covered by a
certificate or opinion of, or representations by, an Expert, upon the
certificate or opinion of, or representations by, an Expert, unless such
counsel has actual knowledge that the certificate or opinion or representations
with respect to the matters upon which his opinion may be based as aforesaid
are erroneous.  In addition, any Opinion
of Counsel may be based (without further examination or investigation), insofar
as it relates to or is dependent upon matters covered in an Opinion of Counsel
rendered by other counsel, upon such other Opinion of Counsel, unless such
counsel has actual knowledge that the Opinion of Counsel rendered by such other
counsel with respect to the matters upon which his Opinion of Counsel may be
based as aforesaid are erroneous. 
Further, any Opinion of Counsel with respect to the status of title to
or the sufficiency of descriptions of property, and/or the existence of Liens
thereon, and/or the recording or filing of documents, and/or any similar
matters, may be based (without further examination or investigation) upon
(i) title insurance policies or commitments and reports, lien search
certificates and other similar documents, (ii) certificates of, or
representations by, officers, employees, agents and/or other representatives of
the Company, (iii) certificates or affidavits of the recordings or filings
from licensed title insurance agencies or their agents or (iv) any
combination of the documents referred to in (i), (ii) and (iii), unless,
in any case, such counsel has actual knowledge that the document or documents
with respect to the matters upon which his opinion may be based as aforesaid
are erroneous.  If, in order to render
any Opinion of Counsel provided for herein, the signer thereof shall deem it
necessary that additional facts or matters be stated in any Officer’s
Certificate, certificate of an Accountant or Expert’s Certificate provided for herein,
then such certificate may state all such additional facts or matters as the
signer of such Opinion of Counsel may request.


 


(b)          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 other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.  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.


 


(c)          Whenever,
subsequent to the receipt by the Trustee of any Board Resolution, Officer’s
Certificate, Expert’s Certificate, Net Earnings Certificate, Opinion of Counsel
or other document or instrument, a clerical, typographical or other inadvertent
or unintentional error or omission shall be discovered therein, a new document
or instrument may be substituted therefor in corrected form with the same force
and effect as if originally filed in


 


26





















 


the corrected form and, irrespective of the date or
dates of the actual execution and/or delivery thereof, such substitute document
or instrument shall be deemed to have been executed and/or delivered as of the
date or dates required with respect to the document or instrument for which it
is substituted.  Anything in this
Indenture to the contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the request of the
Company which could not have been taken had the original document or instrument
not contained such error or omission, the action so taken shall not be
invalidated or otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a result of willful
misconduct or bad faith.  Without
limiting the generality of the foregoing, any Securities issued under the authority
of such defective document or instrument shall nevertheless be the valid
obligations of the Company entitled to the benefit of the Lien of this
Indenture equally and ratably with all other Outstanding Securities, except as
aforesaid.


 


SECTION 1.07  Acts of
Holders.


 


(a)          Any
request, demand, authorization, direction, notice, consent, election, waiver or
other action provided by this Indenture to be made, given or taken by Holders
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 or, alternatively, may be embodied in and evidenced by the record of
Holders voting in favor thereof, either in person or by proxies duly appointed
in writing, at any meeting of Holders duly called and held in accordance with
the provisions of Article XV, or a combination of such instruments and any
such record.  Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. 
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders signing such
instrument or instruments and so voting at any such meeting.  Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 11.01) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section. 
The record of any meeting of Holders shall be proved in the manner
provided in Section 15.06.


 


(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 of such execution or by a
certificate of a 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 or may be
proved in any other manner which the Trustee and the Company deem
sufficient.  Where such execution is by a
signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.


 


(c)          The
principal amount (except as otherwise contemplated in clause (y) of the
first proviso to the definition of Outstanding) and serial numbers of
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.


 


(d)          Any
request, demand, authorization, direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future Holder of the same Security and
the


 


27





















 


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.


 


(e)          Until
such time as written instruments shall have been delivered to the Trustee with
respect to the requisite percentage of principal amount of Securities for the
action contemplated by such instruments, any such instrument executed and
delivered by or on behalf of a Holder may be revoked with respect to any or all
of such Securities by written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.


 


(f)           Securities
of any series, or any Tranche thereof, authenticated and delivered after any
Act of Holders may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any action taken by such Act of
Holders.  If the Company shall so
determine, new Securities of any series, or any Tranche thereof, so modified as
to conform, in the opinion of the Trustee and the Company, to such action may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series or Tranche.


 


(g)          The
Company may, at its option, by Company Order, fix in advance a record date for
the determination of Holders entitled to give any request, demand,
authorization, direction, notice, consent, waiver or other Act solicited by the
Company, but the Company shall have no obligation to do so.  In addition, the Trustee may, at its option,
fix in advance a record date for the determination of Holders entitled to join
in the giving or making of any Notice of Default, any declaration of
acceleration referred to in Section 10.02, any request to institute
proceedings referred to in Section 10.11 or any direction referred to in
Section 10.16.  If any such record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act, or such notice, declaration, request or direction, may be
given before or after such 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 (i) whether Holders of the requisite proportion of
the Outstanding Securities have authorized or agreed or consented to such Act
(and for that purpose the Outstanding Securities shall be computed as of the
record date) and/or (ii) which Holders may revoke any such Act
(notwithstanding subsection (e) of this Section).


 


SECTION 1.08  Notices, Etc.
to Trustee and Company.


 


Except as otherwise provided herein, any request,
demand, authorization, direction, notice, consent, election, 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, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be sufficient
for every purpose hereunder (unless otherwise expressly provided herein) if the
same shall be in writing and delivered personally to an officer or other responsible
employee of the addressee, or transmitted by facsimile transmission or other
direct written electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to time designate,
or transmitted by registered mail, return receipt requested, charges prepaid,
to the applicable address set opposite such party’s name below or to such other
address as either party hereto may from time to time designate:


 


28





















 


If to the Trustee, to:


 


BNY Midwest Trust Company


2 N. LaSalle Street,
Suite 1020


Chicago, Illinois  60630


Attention: 
Corporate Trust Administration


 


If to the Company, to:


 


International Transmission Company


1901 South Wagner


Ann Arbor, Michigan  48103


Attention: 
Chief Financial Officer


 


Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally delivered, on the
date of delivery, if transmitted by facsimile transmission or other direct
written electronic means, on the date of transmission, and if transmitted by
registered mail, on the date of receipt.


 


SECTION 1.09  Notice to
Holders of Securities; Waiver.


 


Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such notice shall
be sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice.


 


In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice to Holders by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.  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.


 


Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either before or after
the event otherwise to be specified therein, 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.


 


SECTION 1.10 
Conflict with Trust Indenture Act.


 


If this Indenture shall become qualified and shall
become subject to the Trust Indenture Act, if any provision of this Indenture
limits, qualifies or conflicts with another provision hereof which is required
or deemed to be included in this Indenture by, or is otherwise governed by, any
provision of the Trust Indenture Act, such other provision shall control; and
if this Indenture shall become qualified and shall become subject to the Trust
Indenture Act, if any provision hereof otherwise conflicts with the Trust
Indenture Act, the Trust Indenture Act shall


 


29





















 


control to the extent it
is applicable.  Except as expressly
provided otherwise herein, any reference herein to a requirement under the
Trust Indenture Act shall only apply upon and so long as this Indenture is
qualified under and subject to the Trust Indenture Act.


 


SECTION 1.11 
Effect of Headings and Table of Contents.


 


The Article and Section headings in this
Indenture and the Table of Contents are for convenience only and shall not
affect the construction hereof.


 


SECTION 1.12 
Successors and Assigns.


 


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


 


SECTION 1.13 
Separability Clause.


 


In case any provision in this Indenture or the
Securities shall be held to 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 1.14 
Benefits of Indenture.


 


Nothing in this Indenture or the Securities, express
or implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.


 


SECTION 1.15  Governing Law.


 


This Indenture and the Securities shall be governed by
and construed in accordance with the law of the State of New York, except, if
this Indenture shall become qualified and subject to the Trust Indenture Act,
to the extent that the Trust Indenture Act shall be applicable, and except to
the extent that the law of any jurisdiction wherein any portion of the
Mortgaged Property is located shall mandatorily govern the creation of a
mortgage lien on and security interest in, or perfection, priority or
enforcement of the Lien of this Indenture or exercise of remedies with respect
to, such portion of the Mortgaged Property.


 


SECTION 1.16  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.


 


30





















 


SECTION 1.17  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 1.18  Legal Holidays.


 


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 other than a provision in Securities of any
series, or any Tranche thereof, or in the indenture supplemental hereto, Board
Resolution or Officer’s Certificate which establishes the terms of the Securities
of such series or Tranche, which specifically states that such provision shall
apply in lieu of this Section) 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 or Redemption Date, or at
the Stated Maturity, and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, to such Business Day.


 


SECTION 1.19 
Investment of Cash Held by Trustee.


 


Any cash held by the Trustee or any Paying Agent under
any provision of this Indenture shall, except as otherwise provided in
Section 8.06 or in Article IX, at the request of the Company
evidenced by Company Order, be invested or reinvested in Investment Securities
designated by the Company in or pursuant to a Company Order (such Company Order
to contain a representation to the effect that the securities designated
therein constitute Investment Securities), and any interest on such Investment
Securities shall be promptly paid over to the Company as received free and
clear of any Lien.  Such Investment
Securities shall be held subject to the same provisions hereof as the cash used
to purchase the same, but upon a like request of the Company shall be sold, in
whole or in designated part, and the proceeds of such sale shall be held
subject to the same provisions hereof as the cash used to purchase the
Investment Securities so sold.  If such
sale shall produce a net sum less than the cost of the Investment Securities so
sold, the Company shall pay to the Trustee or any such Paying Agent, as the
case may be, such amount in cash as, together with the net proceeds from such
sale, shall equal the cost of the Investment Securities so sold, and if such
sale shall produce a net sum greater than the cost of the Investment Securities
so sold, the Trustee or any such Paying Agent, as the case may be, shall
promptly pay over to the Company an amount in cash equal to such excess, free
and clear of any Lien.  In no event shall
the Trustee be liable for any loss incurred in connection with the sale of any
Investment Security pursuant to any provision of this Indenture.


 


Notwithstanding the foregoing, if an Event of Default
shall have occurred and be continuing, interest on Investment Securities and
any gain upon the sale thereof shall be held as part of the Mortgaged Property
until such Event of Default shall have been cured or waived,


 


31





















 


whereupon such interest
and gain shall be promptly paid over to the Company free and clear of any Lien.


 


ARTICLE II



Security Forms


 


SECTION 2.01  Forms Generally.


 


The definitive Securities of each series shall be in
substantially the form or forms established in the indenture supplemental
hereto establishing such series, or in a Board Resolution establishing such
series, or in an Officer’s Certificate pursuant to such a supplemental
indenture or Board Resolution, in any 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 the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.  If the form or forms of Securities of any
series are established in a Board Resolution or in an Officer’s Certificate pursuant
to a supplemental indenture or a Board Resolution, such Board Resolution and
Officer’s Certificate, if any, shall be delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 4.01 for the
authentication and delivery of such Securities.


 


The Securities of each series shall be issuable in
registered form without coupons.  The
definitive Securities shall be produced in such manner as shall be determined
by the officers executing such Securities, as evidenced by their execution
thereof.


 


SECTION 2.02  Form of
Trustee’s Certificate of Authentication.


 


The Trustee’s certificate of authentication shall be
in substantially the form set forth below:


 


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


 


 


BNY MIDWEST TRUST
COMPANY, 
  as Trustee


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	 

				



 


32





















 


ARTICLE III



The Securities


 


SECTION 3.01 
Amount Unlimited; Issuable in Series.


 


Subject to the provisions
of Article IV, the aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.


 


The Securities may be
issued in one or more series.  Subject to
the penultimate paragraph of this Section, prior to the authentication and delivery
of Securities of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an Officer’s Certificate
pursuant to a supplemental indenture or a Board Resolution, prior to the
issuance of Securities of any series:


 


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


 


(b)                             any
limit upon the aggregate principal amount of the Securities of such 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 such series pursuant to
Section 3.04, 3.05, 3.06, 5.06 or 14.05 and except for any Securities
which, pursuant to Section 3.03, are deemed never to have been
authenticated and delivered hereunder);


 


(c)                              the
Persons (without specific identification) to whom interest on Securities of
such series, or any Tranche thereof, shall be payable on any Interest Payment
Date, if other than the Persons in whose names such Securities (or one or more
Predecessor Securities) are registered at the close of business on the Regular
Record Date for such interest;


 


(d)                             the
date or dates on which the principal of the Securities of such series, or any
Tranche thereof, is payable or any formulary or other method or other means by
which such date or dates shall be determined, by reference to an index or other
fact or event ascertainable outside of this Indenture or otherwise (without
regard to any provisions for redemption, prepayment, acceleration, purchase or
extension);


 


(e)                              the
rate or rates at which the Securities of such series, or any Tranche thereof,
shall bear interest, if any (including the rate or rates at which overdue
principal shall bear interest, if different from the rate or rates at which
such Securities shall bear interest prior to Maturity, and, if applicable, the
rate or rates at which overdue premium or interest shall bear interest, if
any), or any formulary or other method or other means by which such rate or
rates shall be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the date or dates from
which such interest shall accrue; the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date, if any, for the interest
payable on such Securities on any Interest Payment Date; and the basis of
computation of interest, if other than as provided in Section 3.10;


 


33





















 


(f)                                the
place or places at which and/or the methods (if other than as provided
elsewhere in this Indenture) by which (i) the principal of and premium, if
any, and interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, (ii) registration of transfer of Securities of
such series, or any Tranche thereof, may be effected, (iii) exchanges of
Securities of such series, or any Tranche thereof, may be effected and
(iv) notices and demands to or upon the Company in respect of the
Securities of such series, or any Tranche thereof, and this Indenture may be
served; the Security Registrar and any Paying Agent or Agents for such series
or Tranche; and, if such is the case, that the principal of such Securities
shall be payable without the presentment or surrender thereof;


 


(g)                             the
period or periods within which or the date or dates on which, the price or
prices at which and the terms and conditions upon which the Securities of such
series, or any Tranche thereof, may be redeemed, in whole or in part, at the
option of the Company;


 


(h)                             the
obligation or obligations, if any, of the Company to redeem or purchase the
Securities of such series, or any Tranche thereof, pursuant to any sinking
fund, maintenance and renewal or other mandatory redemption provisions or at
the option of a Holder thereof and the period or periods within which or the
date or dates on which, the price or prices at which and the terms and conditions
upon which such Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to the requirements of
Section 5.04 in the case of mandatory redemption or redemption at the
option of the Holder;


 


(i)                                 the
denominations in which Securities of such series, or any Tranche thereof, shall
be issuable if other than denominations of One Thousand Dollars ($1,000) and
any integral multiples of One Thousand Dollars ($1,000) in excess thereof;


 


(j)                                 the
currency or currencies, including composite currencies, in which payment of the
principal of and premium, if any, and interest, if any, on the Securities of
such series, or any Tranche thereof, shall be payable (if other than in
Dollars); it being understood that, for purposes of calculations under this
Indenture (including calculations of principal amount under Article IV),
any amounts denominated in a currency other than Dollars or in a composite
currency shall be converted to Dollar equivalents by calculating the amount of
Dollars which could have been purchased by the amount of such other currency
based on such quotations or methods of determination as shall be specified
pursuant to this clause (j);


 


(k)                              if
the principal of or premium, if any, or interest, if any, on the Securities of
such series, or any Tranche thereof, 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 coin or currency in which payment of
any amount as to which such election is made will be payable, the period or
periods within which, and the terms and conditions upon which, such election
may be made; it being understood that, for purposes of calculations under this
Indenture (including calculations of principal amount under Article IV),
any such election shall be required to be taken into account, in the manner
contemplated in clause (j) of this paragraph, only after such election
shall have been made;


 


34





















 


(l)                                 if
the principal of or premium, if any, or interest, if any, on the Securities of
such series, or any Tranche thereof, are to be payable, or are to be payable at
the election of the Company or a Holder thereof, in securities or other property,
the type and amount of such securities or other property, or the formulary or
other method or other means by which such amount shall be determined, and the
period or periods within which, and the terms and conditions upon which, any
such election may be made; it being understood that all calculations under this
Indenture (including calculations of principal amount under Article IV)
shall be made on the basis of the fair market value of such securities or the
Fair Value of such other property, in either case determined as of the most
recent practicable date, except that, in the case of any amount of principal or
interest that may be so payable at the election of the Company or a Holder, if
such election shall not yet have been made, such calculations shall be made on
the basis of the amount of principal or interest, as the case may be, that
would be payable if no such election were made;


 


(m)                           if
the amount payable in respect of principal of or premium, if any, or interest,
if any, on the Securities of such series, or any Tranche thereof, may be
determined with reference to an index or other fact or event ascertainable
outside of this Indenture, the manner in which such amounts shall be determined
(to the extent not established pursuant to clause (e) of this
paragraph); it being understood that all calculations under this Indenture
(including calculations of principal amount under Article IV) shall be
made on the basis of the amount that would be payable as principal if such
principal were due, or on the basis of the interest rates in effect, as the
case may be, on the date next preceding the date of such calculation;


 


(n)                             if
other than the principal amount thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to
Section 10.02;


 


(o)                             the
terms, if any, pursuant to which the Securities of such series, or any Tranche
thereof, may be converted into or exchanged for shares of capital stock or
other securities of the Company or any other Person;


 


(p)                             the
obligations or instruments, if any, which shall be considered to be Eligible
Obligations in respect of the Securities of such series, or any Tranche
thereof, denominated in a currency other than Dollars or in a composite
currency, and any additional or alternative provisions for the reinstatement of
the Company’s indebtedness in respect of such Securities after the satisfaction
and discharge thereof as provided in Section 9.01;


 


(q)                             if
the Securities of such series, or any Tranche thereof, are to be issued in
global form, (i) any limitations on the rights of the Holder or Holders of
such Securities to transfer or exchange the same or to obtain the registration
of transfer thereof, (ii) any limitations on the rights of the Holder or
Holders thereof to obtain certificates therefor in definitive form in lieu of
temporary form and (iii) any and all other matters incidental to such
Securities;


 


(r)                                if
the Securities of such series, or any Tranche thereof, are to be issuable as
bearer securities, any and all matters incidental thereto which are not
specifically addressed in a supplemental indenture as contemplated by
clause (f) of Section 14.01;


 


35





















 


(s)                              to
the extent not established pursuant to clause (q) of this paragraph, any
limitations on the rights of the Holders of the Securities of such Series, or
any Tranche thereof, to transfer or exchange such Securities or to obtain the
registration of transfer thereof; and if a service charge will be made for the
registration of transfer or exchange of Securities of such series, or any
Tranche thereof, the amount or terms thereof;


 


(t)                                any
exceptions to Section 1.16, or variation in the definition of Business
Day, with respect to the Securities of such series, or any Tranche thereof; and


 


(u)                             any
other terms of the Securities of such series, or any Tranche thereof, not
inconsistent with the provisions of this Indenture.


 


With respect to
Securities of a series subject to a Periodic Offering, the indenture
supplemental hereto or the Board Resolution which establishes such series, or
the Officer’s Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or parameters for
Securities of such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall be specified in a
Company Order or that such terms shall be determined by the Company or its agents
in accordance with procedures specified in a Company Order as contemplated by
clause (b) of Section 4.01.


 


Anything herein to the
contrary notwithstanding, the Trustee shall be under no obligation to
authenticate and deliver Securities of any series the terms of which,
established as contemplated by this Section, would affect the rights, duties,
obligations, liabilities or immunities of the Trustee under this Indenture or
otherwise.


 


SECTION 3.02  Denominations.


 


Unless otherwise provided
as contemplated by Section 3.01 with respect to any series of Securities,
or any Tranche thereof, the Securities of each series shall be issuable in
denominations of One Thousand Dollars ($1,000) and any integral multiples of
One Thousand Dollars ($1,000) in excess thereof.


 


SECTION 3.03 
Execution, Dating, Certificate of Authentication.


 


Unless otherwise provided
as contemplated by Section 3.01 with respect to any series of Securities,
or any Tranche thereof, the Securities shall be executed on behalf of the
Company by an Authorized Officer, and may have the corporate seal of the
Company affixed thereto or reproduced thereon and attested by any other
Authorized Officer.  The signature of any
or all of these officers on the Securities may be manual or facsimile.


 


Securities bearing the
manual or facsimile signatures of individuals who were at the time of execution
Authorized Officers 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.


 


36





















 


Unless otherwise
specified as contemplated by Section 3.01 with respect to any series of
Securities, or any Tranche thereof, each Security shall be dated the date of
its authentication.


 


Unless otherwise
specified as contemplated by Section 3.01 with respect to any series of
Securities, or any Tranche thereof, 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 executed by the Trustee or an Authenticating Agent
by manual signature of an authorized officer thereof, 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 (a) any Security shall have been
authenticated and delivered hereunder to the Company, or any Person acting on
its behalf, but shall never have been issued and sold by the Company,
(b) the Company shall deliver such Security to the Security Registrar for
cancellation or shall cancel such Security and deliver evidence of such
cancellation to the Trustee, in each case as provided in Section 3.09, and
(c) the Company, at its election, shall deliver to the Trustee a written
statement (which need not comply with Section 1.05 and need not be
accompanied by an Officer’s Certificate or an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, then, 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 hereof.


 


SECTION 3.04  Temporary
Securities.


 


Pending the preparation
of definitive Securities of any series, or any Tranche thereof, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten,
mimeographed, photocopied or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, 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;
provided, however, that temporary Securities need not recite specific
redemption, sinking fund, conversion or exchange provisions.


 


Except as otherwise
specified as contemplated by Section 3.01 with respect to the Securities
of any series, or any Tranche thereof, after the preparation of definitive
Securities of such series or Tranche, the temporary Securities of such series
or Tranche shall be exchangeable, without charge to the Holder thereof, for
definitive Securities of such series or Tranche upon surrender of such
temporary Securities at the office or agency of the Company maintained pursuant
to Section 6.02 in a Place of Payment for such Securities.  Upon such surrender of temporary Securities,
the Company shall, except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive Securities of the same
series and Tranche, of authorized denominations and of like tenor and aggregate
principal amount.


 


Until exchanged in full
as hereinabove provided, temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities of the same
series and Tranche and of like tenor authenticated and delivered hereunder.


 


37





















 


SECTION 3.05 
Registration, Registration of Transfer and Exchange.


 


The Company shall cause
to be kept in one of the offices designated pursuant to Section 6.02, with
respect to the Securities of each series, or any Tranche thereof, a register
(the “Security Register”) in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities of such series or Tranche and the
registration of transfer thereof.  The
Company shall designate one Person to maintain the Security Register for the
Securities of each series, and such Person is referred to herein, with respect
to such series, as the “Security Registrar”.  Anything herein to the contrary
notwithstanding, the Company may designate one or more of its offices as an
office in which a register with respect to the Securities of one or more
series, or any Tranche or Tranches thereof, shall be maintained, and the
Company may designate itself the Security Registrar with respect to one or more
of such series.  The Security Register
shall be open for inspection by the Trustee and the Company at all reasonable
times.  Except as otherwise specified or
contemplated by Section 3.01 with respect to the Securities or any series,
or any Tranche thereof, the Trustee shall initially serve as Security
Registrar.


 


Except as otherwise
specified as contemplated by Section 3.01 with respect to the Securities
of any series, or any Tranche thereof, upon surrender for registration of
transfer of any Security of such series or Tranche at the office or agency of
the Company maintained pursuant to Section 6.02 in a Place of Payment for
such series or Tranche, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.


 


Except as otherwise
specified as contemplated by Section 3.01 with respect to the Securities
of any series, or any Tranche thereof, any Security of such series or Tranche
may be exchanged at the option of the Holder, for one or more new Securities of
the same series and Tranche, of authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Securities to be exchanged at
any such office or agency.  Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.


 


All Securities delivered
upon any registration of transfer or exchange of Securities shall be 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, the Trustee or the Security Registrar) be duly
endorsed or shall be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee or the Security Registrar, as the case
may be, duly executed by the Holder thereof or his attorney duly authorized in
writing.


 


Unless otherwise
specified as contemplated by Section 3.01 with respect to Securities of
any series, or any Tranche thereof, no service charge shall be made for any


 


38





















 


registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 5.06 or 14.05
not involving any transfer.


 


The Company shall not be
required to execute or to provide for the registration of transfer of or the
exchange of (a) Securities of any series, or any Tranche thereof, during a
period of fifteen (15) days immediately preceding the date notice is to be given
identifying the serial numbers of the Securities of such series or Tranche
called for redemption or (b) any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.


 


SECTION 3.06  Mutilated,
Destroyed, Lost and Stolen Securities.


 


If any mutilated Security
is surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.


 


If there shall be
delivered to the Company and the Trustee (a) evidence to their
satisfaction of the ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be reasonably required
by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security is held
by a Person purporting to be the owner of such Security, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.


 


Notwithstanding the
foregoing, 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, but subject to compliance with the foregoing conditions, 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 reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.


 


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


 


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


 


39





















 


SECTION 3.07 
Payment of Interest; Interest Rights Preserved.


 


Unless otherwise
specified as contemplated by Section 3.01 with respect to the Securities
of any series, or any Tranche thereof, 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
related Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (a) or (b) below:


 


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
date (herein called 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 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 thirty (30) days and not
less than ten (10) days prior to the date of the proposed payment and not
less than twenty-five (25) days after the receipt by the Trustee of the notice
of the 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, not less than ten (10) days
prior to such Special Record Date, cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given to each
Holder of Securities of such series. 
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.


 


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 and Section 3.05, 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 were carried by such other Security.


 


40





















 


SECTION 3.08  Persons Deemed Owners.


 


The Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
any Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and premium, if any, and (subject
to Sections 3.05 and 3.07) interest, if any, 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.


 


SECTION 3.09 
Cancellation by Security Registrar.


 


All Securities
surrendered for payment, redemption, registration of transfer or exchange
shall, if surrendered to any Person other than the Security Registrar, be delivered
to the Security Registrar and, if not theretofore canceled, shall be promptly
canceled by the Security Registrar.  The
Company may at any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be promptly canceled by
the Security Registrar.  No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section 3.09, except as expressly permitted by this
Indenture.  All canceled Securities held
by the Security Registrar shall be disposed of in accordance with the Security
Registrar’s then customary practice for disposing of securities, unless
otherwise directed by a Company Order; provided, however, that the Security
Registrar shall not be required to destroy any canceled Securities.


 


SECTION 3.10 
Computation of Interest.


 


Except as otherwise
specified as contemplated by Section 3.01 for Securities of any series, or
any Tranche thereof, interest on the Securities of each series shall be
computed on the basis of a three hundred sixty (360) day year consisting of
twelve (12) thirty (30) day months and, with respect to any period less than a
full calendar month, on the basis of the actual number of days elapsed during
such period.


 


SECTION 3.11 
Payment to Be in Proper Currency.


 


In the case of the
Securities of any series, or any Tranche thereof, denominated in any currency
other than Dollars or in a composite currency (the “Required
Currency”), except as otherwise specified with respect to such
Securities as contemplated by Section 3.01, the obligation of the Company
to make any payment of the principal thereof, or the premium, if any, or
interest, if any, thereon, shall not be discharged or satisfied by any tender
by the Company, or recovery by the Trustee, in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the Required Currency
then due and payable.  If any such tender
or recovery is in a currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such currency for the
Required Currency.  The costs and risks
of any such exchange, including without limitation the risks of delay and
exchange rate fluctuation, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in the full


 


41





















 


amount of Required
Currency then due and payable, and in no circumstances shall the Trustee be
liable therefor except in the case of its negligence or willful misconduct.


 


SECTION 3.12  CUSIP Numbers.


 


The Company in issuing
the Securities may use “CUSIP,” “ISIN” or other similar numbers (if then
generally in use), and, if so, the Trustee or Security Registrar may 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 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, in which
case none of the Company or, as the case may be, the Trustee or the Security
Registrar, or any agent of any of them, shall have any liability in respect of
any CUSIP, ISIN or such other number used on any such notice, 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 the “CUSIP,” “ISIN” or such other numbers.


 


ARTICLE IV



Issuance of Securities


 


SECTION 4.01  General.


 


Subject to the provisions
of Section 4.02, 4.03 or 4.04, whichever may be applicable, the Trustee
shall authenticate and deliver Securities of a series, for original issue, at
one time or from time to time in accordance with the Company Order referred to
below, upon receipt by the Trustee of:


 


(a)                              the
instrument or instruments establishing the form or forms and terms of such
series, as provided in Sections 2.01 and 3.01;


 


(b)                             a
Company Order requesting the authentication and delivery of such Securities
and, to the extent that the terms of such Securities shall not have been
established in an indenture supplemental hereto or in a Board Resolution, or in
an Officer’s Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Section 3.01, either
(i) establishing such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which procedures may
provide for authentication and delivery pursuant to oral or electronic
instructions from the Company or any agent or agents thereof, which oral
instructions are to be promptly confirmed electronically or in writing), in either
case in accordance with the instrument or instruments delivered pursuant to
clause (a) above;


 


(c)                              the
Securities of such series, executed on behalf of the Company by an Authorized
Officer;


 


(d)                             a
Net Earnings Certificate showing the Adjusted Net Earnings of the Company for
the period therein specified to have been not less than an amount equal to two
(2)


 


42





















 


times the Annual Interest
Requirements therein specified, all in accordance with the provisions of
Section 1.04; provided, however, that the Trustee shall not be entitled to
receive a Net Earnings Certificate hereunder if the Securities of such series
are to have no Stated Interest Rate prior to Maturity; and provided, further,
that, with respect to Securities of a series subject to a Periodic Offering,
other than Securities theretofore authenticated and delivered, (i) it
shall be assumed in such Net Earnings Certificate that none of such Securities
shall have a Stated Interest Rate in excess of a maximum rate to be stated
therein, and no Securities which would have a Stated Interest Rate at the time
of the initial authentication and delivery thereof in excess of such maximum
rate shall be authenticated and delivered under the authority of such Net Earnings
Certificate and (ii) the Trustee shall be entitled to receive such Net
Earnings Certificate only once, at or prior to the time of the first
authentication and delivery of the Securities of such series;


 


(e)                              an
Opinion of Counsel to the effect that:


 


(i)                                     the
form or forms of such Securities have been duly authorized by the Company and
have been established in conformity with the provisions of this Indenture;


 


(ii)                                  the
terms of such Securities have been duly authorized by the Company and have been
established in conformity with the provisions of this Indenture;


 


(iii)                               when
such Securities shall have been authenticated and delivered by the Trustee and
issued and delivered by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, such Securities will constitute valid
obligations of the Company, enforceable in accordance with their terms and
entitled to the benefit of the Lien of this Indenture equally and ratably with
all other Securities then Outstanding; and


 


(iv)                              the
Company has obtained the consent of any and all Governmental Authorities the
consent of which is requisite to the legal issue of such Securities, specifying
any certificates or other documents by which such consent is or may be
evidenced or that no consent of any Governmental Authorities is requisite;


 


provided, however, that, with respect to Securities of a series subject
to a Periodic Offering, the Trustee shall be entitled to receive such Opinion
of Counsel only once at or prior to the time of the first authentication and
delivery of such Securities (provided that such Opinion of Counsel addresses
the authentication and delivery of all such Securities) and that, in lieu of
the opinions described in clauses (ii), (iii) and (iv) above, counsel
may opine that:


 


(x)                                   when
the terms of such Securities shall have been established pursuant to a Company
Order or Orders or pursuant to such procedures as may be specified from time to
time by a Company Order or Orders, all as contemplated by and in accordance
with the instrument or instruments delivered pursuant to
clause (a) above, such terms will have been duly authorized by the
Company and will have been established in conformity with the provisions of
this Indenture;


 


(y)                                 when
such Securities shall have been authenticated and delivered by the Trustee in
accordance with this Indenture and the Company Order or Orders or the specified
procedures referred to in paragraph (x) above and issued and delivered by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, such Securities will


 


43





















 


constitute valid
obligations of the Company, enforceable in accordance with their terms and
entitled to the benefit of the Lien of this Indenture equally and ratably with
all other Securities then Outstanding; and


 


(z)                                   the
Company has obtained the consent of any and all Governmental Authorities to the
consent of which is requisite to the legal issue of such Securities, specifying
any certificates or other documents by which such consent is or may be
evidenced or that no consent of any Governmental Authorities is requisite; and


 


(f)                                an
Officer’s Certificate to the effect that, to the knowledge of the signer, no
Event of Default has occurred and is continuing; provided, however, that with
respect to Securities of a series subject to a Periodic Offering, either
(i) such an Officer’s Certificate shall be delivered at the time of the
authentication and delivery of each Security of such series or (ii) the Officer’s
Certificate delivered at or prior to the time of the first authentication and
delivery of the Securities of such series shall state that the statements
therein shall be deemed to be made at the time of each, or each subsequent,
authentication and delivery of Securities of such series; and


 


(g)                             such
other Opinions of Counsel, certificates and other documents as may be required
under Section 4.02, 4.03 or 4.04, whichever may be applicable to the
authentication and delivery of the Securities of such series.


 


With respect to
Securities of a series subject to a Periodic Offering, the Trustee may
conclusively rely, as to the authorization by the Company of any of such
Securities, the forms and terms thereof, the validity thereof and the
compliance of the authentication and delivery thereof with the terms and
conditions of this Indenture, upon the Opinion or Opinions of Counsel and the
certificates and other documents delivered pursuant to this Article IV at
or prior to the time of the first authentication and delivery of Securities of
such series until any of such opinions, certificates or other documents have
been superseded or revoked or expire by their terms.  In connection with the authentication and
delivery of Securities of a series subject to a Periodic Offering, the Trustee
shall be entitled to assume that the Company’s instructions to authenticate and
deliver such Securities do not violate any applicable law or any applicable
rule, regulation or order of any Governmental Authority having jurisdiction
over the Company and that the requirements of any tax law applicable to the
issuance of such securities have been complied with.


 


SECTION 4.02 
Issuance of Securities on the Basis of Property Additions.


 


(a)                              Securities
of any one or more series may be authenticated and delivered on the basis of
Property Additions which do not constitute Funded Property in a principal
amount not exceeding seventy percentum (70%) of the balance of the Cost or the
Fair Value to the Company of such Property Additions (whichever shall be less)
after making any deductions and any additions pursuant to Section 1.03(b),
except as otherwise specified in Section 1.03(b).


 


(b)                             Securities
of any series shall be authenticated and delivered by the Trustee on the basis
of Property Additions upon receipt by the Trustee of:


 


44





















 


(i)                                     the
documents with respect to the Securities of such series specified in
Section 4.01;


 


(ii)                                  an
Expert’s Certificate dated as of a date not more than ninety (90) days prior to
the date of the Company Order requesting the authentication and delivery of
such Securities,


 


(A)                              describing
in reasonable detail all property constituting Property Additions and
designated by the Company, in its discretion, to be made the basis of the
authentication and delivery of such Securities (such description of property to
be made by reference, at the election of the Company, either to specified
items, units and/or elements of property or portions thereof, on a percentage
or Dollar basis, or to properties reflected in specified accounts or
subaccounts in the Company’s books of account or portions thereof, on a Dollar
basis), and stating the Cost of such property;


 


(B)                                stating
that all such property constitutes Property Additions;


 


(C)                                stating
that such Property Additions are desirable for use in the conduct of the
business, or one of the businesses, of the Company;


 


(D)                               stating
that such Property Additions, to the extent of the Cost or Fair Value to the
Company thereof (whichever is less) to be made the basis of the authentication
and delivery of such Securities, do not constitute Funded Property;


 


(E)                                 stating,
except as to Property Additions acquired, made or constructed wholly through
the delivery of securities or other property, that the amount of cash forming
all or part of the Cost thereof was equal to or more than an amount to be
stated therein;


 


(F)                                 briefly
describing, with respect to any Property Additions acquired, made or
constructed in whole or in part through the delivery of securities or other
property, the securities or other property so delivered and stating the date of
such delivery;


 


(G)                                stating
what part, if any, of such Property Additions includes property which within
six months prior to the date of acquisition thereof by the Company had been
used or operated by others than the Company in a business similar to that in
which it has been or is to be used or operated by the Company and stating
whether or not, in the judgment of the signers, the Fair Value thereof to the
Company, as of the date of such certificate, is less than Twenty-five Thousand
Dollars ($25,000) and whether or not such Fair Value is less than one percentum
(1%) of the aggregate principal amount of Securities then Outstanding;


 


45





















 


(H)                               stating,
in the judgment of the signers, the Fair Value to the Company, as of the date
of such certificate, of such Property Additions, except to the extent that the
Fair Value to the Company of such Property Additions is to be made in an
Independent Expert’s Certificate pursuant to clause (iii) below;


 


(I)                                    stating
the amount required to be deducted under Section 1.03(b)(i) and the
amounts elected to be added under Section 1.03(b)(ii) in respect of
Funded Property retired of the Company;


 


(J)                                   if
any property included in such Property Additions is subject to a Lien of the
character described (1) in clause (d) of the definition of
Permitted Liens, stating that such Lien does not, in the judgment of the
signers, materially impair the use by the Company of the Mortgaged Property
considered as a whole, or (2) in clause (g)(ii) of the
definition of Permitted Liens, stating that such Lien does not, in the judgment
of the signers, materially impair the use by the Company of such property for
the purposes for which it is held by the Company or (3) in clause (o)
of the definition of Permitted Liens, stating that the enforcement of any such
Lien would not, in the judgment of the signers, adversely affect the interests
of the Company in such property in any material respect;


 


(K)                               stating
the lower of the Cost or the Fair Value to the Company of such Property
Additions, after the deductions therefrom and additions thereto specified in
such Expert’s Certificate pursuant to clause (I) above;


 


(L)                                 stating
the amount equal to seventy percentum (70%) of the amount required to be stated
pursuant to clause (K) above; and


 


(M)                            stating
the aggregate principal amount of the Securities to be authenticated and
delivered on the basis of such Property Additions (such amount not to exceed
the amount stated pursuant to clause (L) above);


 


(iii)                               in
case any Property Additions are shown by the Expert’s Certificate provided for
in clause (ii) above to include property which, within six months
prior to the date of acquisition thereof by the Company, had been used or
operated by others than the Company in a business similar to that in which it
has been or is to be used or operated by the Company and such certificate does
not show the Fair Value thereof to the Company, as of the date of such
certificate, to be less than Twenty-five Thousand Dollars ($25,000) or less
than one percentum (1%) of the aggregate principal amount of Securities then
Outstanding, an Independent Expert’s Certificate stating, in the judgment of
the signer, the Fair Value to the Company, as of the date of such Independent
Expert’s Certificate, of (X) such Property Additions which have been so
used or operated and (at the option of the Company) as to any other Property
Additions included in the Expert’s Certificate provided for in
clause (ii) above and (Y) in case such Independent Expert’s
Certificate is being delivered in connection with the authentication and
delivery of Securities, any property so used or operated which has been subjected
to the Lien of this Indenture since the commencement of the then current
calendar year as the basis for the


 


46





















 


authentication and delivery of Securities and as to
which an Independent Expert’s Certificate has not previously been furnished to
the Trustee;


 


(iv)                              in
case any Property Additions are shown by the Expert’s Certificate provided for
in clause (ii) above to have been acquired, made or constructed in
whole or in part through the delivery of securities or other property, an
Expert’s Certificate stating, in the judgment of the signers, the fair market
value in cash of such securities or other property at the time of delivery
thereof in payment for or for the acquisition of such Property Additions;


 


(v)                                 an
Opinion of Counsel to the effect that:


 


(A)                              this
Indenture constitutes, or, upon the delivery of, and/or the filing and/or
recording in the proper places and manner of, the instruments of conveyance,
assignment or transfer, if any, specified in said opinion, will constitute, a
Lien on all the Property Additions to be made the basis of the authentication
and delivery of such Securities;


 


(B)                                the
Property Additions to be made the basis of the authentication and delivery of
such Securities are subject to no mortgage or other consensual Lien thereon
prior to the Lien of this Indenture, except Permitted Liens; and to the
knowledge of such counsel, the Property Additions to be made the basis of the
authentication and delivery of such Securities are subject to no Lien thereon prior
to the Lien of this Indenture except (i) Permitted Liens and
(ii) where the existence of any Liens prior to the Lien of this Indenture
would not materially and adversely affect the security afforded by this
Indenture; and


 


(C)                                the
Company has corporate authority to operate the Property Additions with respect
to which the application is made;


 


(vi)                              an
Officer’s Certificate containing a representation and warranty of the Company
that the Property Additions to be made the basis of the authentication and delivery
of such Securities are subject to no Lien thereon prior to the Lien of this
Indenture, except Permitted Liens; and


 


(vii)                           copies
of the instruments of conveyance, assignment and transfer, if any, specified in
the Opinion of Counsel provided for in clause (b)(v) (A) of this
Section 4.02.


 


SECTION 4.03 
Issuance of Securities on the Basis of Retired Securities.


 


(a)                              Securities
of any one or more series may be authenticated and delivered on the basis of,
and in an aggregate principal amount not exceeding the aggregate principal
amount of, Retired Securities.


 


(b)                             Securities
of any series shall be authenticated and delivered by the Trustee on the basis
of Retired Securities upon receipt by the Trustee of:


 


47





















 


(i)                                     the
documents with respect to the Securities of such series specified in
Section 4.01; provided, however, that no Net Earnings Certificate shall be
required to be delivered unless:


 


(A)                              the Stated Maturity of the
Retired Securities to be made the basis for such issuance is a date more than
two years after the date of the Company Order requesting the authentication and
delivery of such Securities, and


 


(B)                                the Stated Interest Rate, if
any, on such Retired Securities in effect immediately prior to Maturity is less
than the Stated Interest Rate, if any, on such Indenture Securities to be in
effect upon the initial authentication and delivery thereof; and


 


(ii)                                  an
Officer’s Certificate stating that Retired Securities, specified by series, in
an aggregate principal amount not less than the aggregate principal amount of
Securities to be authenticated and delivered, have theretofore been
authenticated and delivered and, as of the date of such Officer’s Certificate,
constitute Retired Securities and are the basis for the authentication and
delivery of such Securities.


 


SECTION 4.04 
Issuance of Securities on the Basis of Deposit of Cash.


 


(a)                              Securities
of any one or more series may be authenticated and delivered on the basis of,
and in an aggregate principal amount not exceeding the amount of, any deposit
with the Trustee of cash for such purpose.


 


(b)                             Securities
of any series shall be authenticated and delivered by the Trustee on the basis
of the deposit of cash when the Trustee shall have received, in addition to
such deposit, the documents with respect to the Securities of such series
specified in Section 4.01.


 


(c)                              All
cash deposited with the Trustee under the provisions of this Section shall
be held by the Trustee as a part of the Mortgaged Property and may be withdrawn
from time to time by the Company, upon application of the Company to the
Trustee, in an amount equal to the aggregate principal amount of Securities the
authentication and delivery of which the Company shall be entitled under any of
the provisions of this Indenture by virtue of compliance with all applicable
provisions of this Indenture (except as hereinafter in this
Section 4.04(c) otherwise provided).


 


Upon any such application
for withdrawal, the Company shall comply with all applicable provisions of this
Indenture relating to the authentication and delivery of Securities except that
the Company shall not be required to deliver the documents specified in
Section 4.01.


 


Any withdrawal of cash
under this Section 4.04(c) shall operate as a waiver by the Company
of its right to the authentication and delivery of the Securities on which it
is based and such Securities may not thereafter be authenticated and delivered
hereunder.  Any Property Additions which
have been made the basis of any such right to the authentication and delivery
of Securities so waived shall be deemed to have been made the basis of the
withdrawal of such cash; and any Retired Securities which have been made the
basis of any such right to the authentication and delivery of Securities so
waived shall be deemed to have been made the basis of the withdrawal of such
cash.


 


48





















 


(d)                             If
at any time the Company shall so direct, any sums deposited with the Trustee
under the provisions of this Section may be used or applied to the
purchase, payment or redemption of Securities in the manner and subject to the
conditions provided in clauses (d) and (e) of Section 8.06.


 


ARTICLE V



Redemption of Securities


 


SECTION 5.01 
Applicability of Article.


 


Securities of any series,
or any Tranche thereof, which are redeemable before their Stated Maturity shall
be redeemable in accordance with their terms and (except as otherwise specified
as contemplated by Section 3.01 for Securities of such series or Tranche)
in accordance with this Article.


 


SECTION 5.02 
Election to Redeem; Notice to Trustee.


 


The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution or an
Officer’s Certificate.  The Company
shall, at least forty-five (45) days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the principal amount of
such Securities to be redeemed.  In the
case of any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer’s Certificate evidencing
compliance with such restriction or condition.


 


SECTION 5.03 
Selection of Securities to Be Redeemed.


 


If less than all the
Securities of any series, or any Tranche thereof, are to be redeemed, the
particular Securities to be redeemed shall be selected by the Trustee from the
Outstanding Securities of such series or Tranche not previously called for
redemption, by such method as shall be provided for any particular series or
Tranche, or, in the absence of any such provision, pro rata or by such method
of random selection as the Trustee shall deem fair and appropriate and which
may, in any case, provide for the selection for redemption of Securities and
portions of Securities (except as otherwise specified as contemplated by
Section 3.01 for Securities of such series or Tranche, in amounts of
$1,000 or any integral multiples of $1,000 in excess thereof) of the principal
amount of Securities of such series or Tranche having a denomination larger
than the minimum authorized denomination for Securities of such series or
Tranche; provided, however, that if, as indicated in an Officer’s Certificate,
the Company shall have offered to purchase all or any principal amount of the
Securities then Outstanding of any series, or any Tranche thereof, and less
than all of such Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if so directed by Company
Order, shall select for redemption all or any principal amount of such
Securities which have not been so tendered.


 


49





















 


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


 


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 5.04 
Notice of Redemption.


 


Notice of redemption
shall be given in the manner provided in Section 1.09 to the Holders of
the Securities to be redeemed not less than thirty (30) nor more than sixty
(60) days prior to the Redemption Date.


 


All notices of redemption
shall state:


 


(a)                              the
Redemption Date,


 


(b)                             the
Redemption Price,


 


(c)                              if
less than all the Securities of any series or Tranche are to be redeemed, the
identification of the particular Securities to be redeemed and the portion of
the principal amount of any Security to be redeemed in part,


 


(d)                             that
on the Redemption Date the Redemption Price, together with accrued interest, if
any, to the Redemption Date, will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,


 


(e)                              the
place or places where such Securities are to be surrendered for payment of the
Redemption Price and accrued interest, if any, unless it shall have been
specified as contemplated by Section 3.01 with respect to such Securities
that such surrender shall not be required,


 


(f)                                that
the redemption is for a sinking or other fund, if such is the case,


 


(g)                             the
CUSIP, ISIN and/or other similar number of the Securities to be redeemed, and


 


(h)                             such
other matters as the Company shall deem desirable or appropriate.


 


With respect to any
notice of redemption of Securities at the election of the Company, unless, upon
the giving of such notice, such Securities shall be deemed to have been paid in
accordance with Section 9.01, such notice may state that such redemption
shall be conditional upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and interest, if any,
on such Securities and that if such money shall not have been so received such
notice shall be of no force or effect and the Company shall not be required to
redeem such


 


50





















 


Securities.  In the event that such notice of redemption
contains such a condition and such money is not so received, the redemption
shall not be made and within a reasonable time thereafter notice shall be
given, in the manner in which the notice of redemption was given, that such
money was not so received and such redemption was not required to be made, and
the Paying Agent or Agents for the Securities otherwise to have been redeemed
shall promptly return to the Holders thereof any of such Securities which had
been surrendered for payment upon such redemption.


 


Notice of redemption of
Securities to be redeemed at the election of the Company, and any notice of
non-satisfaction of a condition for redemption as aforesaid, shall be given by
the Company or, at the Company’s request, by the Security Registrar in the name
and at the expense of the Company. 
Notice of mandatory redemption of Securities shall be given by the
Security Registrar in the name and at the expense of the Company.


 


SECTION 5.05 
Securities Payable on Redemption Date.


 


Notice of redemption
having been given as aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions thereof so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless, in
the case of an unconditional notice of redemption, the Company shall default in
the payment of the Redemption Price and accrued interest, if any) such
Securities or portions thereof, if interest-bearing, shall cease to bear
interest.  Upon surrender of any such
Security for redemption in accordance with such notice, such Security or
portion thereof shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so specified as
contemplated by Section 3.01 with respect to such Security; and provided,
further, that, except as otherwise specified as contemplated by
Section 3.01 with respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or more
Predecessor Securities, registered as such at the close of business on the
related Regular Record Date according to the terms of such Security and subject
to the provisions of Section 3.07.


 


SECTION 5.06 
Securities Redeemed in Part.


 


Upon the surrender of any
Security which is to be redeemed only in part 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 his attorney duly authorized in
writing), 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 Tranche, of any authorized denomination
requested by such Holder and of like tenor and in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered.


 


51





















 


ARTICLE VI



COVENANTS


 


SECTION 6.01 
Payment of Securities; Lawful Possession; Maintenance of Lien.


 


(a)                              The
Company shall pay the principal of and premium, if any, and interest, if any,
on the Securities of each series in accordance with the terms of such
Securities and this Indenture.


 


(b)                             At
the date of the execution and delivery of this Indenture, as originally
executed and delivered, the Company covenants and agrees that it shall be
lawfully possessed of the Mortgaged Property.


 


(c)                              The
Company shall maintain and preserve the Lien of this Indenture so long as any
Securities shall remain Outstanding, subject, however, to the provisions of
Article IX and Article XIII.


 


SECTION 6.02 
Paying Agent; Place of Payment; Maintenance of Office or Agency.


 


The Company shall
designate one or more Persons to serve as Paying Agent with respect to the
Securities at the Place of Payment. 
Except as otherwise specified or contemplated by Section 3.01 with
respect to the Securities of any series, or any Tranche thereof, the Trustee
shall initially serve as Paying Agent. 
The Company may change the Place of Payment, appoint one or more Paying
Agents (including the Company) and may remove any Paying Agent at its
discretion.


 


The Company shall
maintain in each Place of Payment for the Securities of each series, or any Tranche
thereof, an office or agency where payment of such Securities shall be made,
where the registration of transfer or exchange of such Securities may be
effected and where notices and demands to or upon the Company in respect of
such Securities and this Indenture may be served.  The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of each such
office or agency and prompt notice to the Holders of any such change in the
manner specified in Section 1.09. 
If at any time the Company shall fail to maintain any such required
office or agency in respect of Securities of any series, or any Tranche
thereof, or shall fail to furnish the Trustee with the address thereof, payment
of such Securities shall be made and registration of transfer or exchange
thereof may be effected at the office or agency of the Trustee located at 101
Barclay Street, New York, New York 10286, and notices and demands in respect
thereof may be served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent for all such purposes in any
such event.


 


The Company may also from
time to time designate one or more other offices or agencies with respect to
the Securities of one or more series, or any Tranche thereof, for any or all of
the foregoing purposes and may from time to time rescind such designations;
provided, however, that, unless otherwise specified as contemplated by
Section 3.01 with respect to the Securities of such series or Tranche, no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency for such purposes in each


 


52





















 


Place of Payment
for such Securities in accordance with the requirements set forth above.  The Company shall give prompt written notice
to the Trustee, and prompt notice to the Holders in the manner specified in
Section 1.09, of any such designation or rescission and of any change in
the location of any such other office or agency.


 


Anything herein to the
contrary notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company, in which event the
Company shall perform all functions to be performed at such office or agency.


 


SECTION 6.03  Money
for Securities Payments to Be Held in Trust.


 


If the Company shall at
any time act as its own Paying Agent with respect to the Securities of any
series, or any Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on any of such
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided.  The
Company shall promptly notify the Trustee of any failure by the Company (or any
other obligor on such Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such Securities.


 


Whenever the Company
shall have one or more Paying Agents for the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on such Securities, deposit with such
Paying Agents sums sufficient (without duplication) to pay the principal and
premium or interest so becoming due, such sums to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall promptly notify the
Trustee of any failure by it so to act.


 


The Company shall cause
each Paying Agent for the Securities of any series, or any Tranche thereof,
other than the Company or the Trustee, 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 shall:


 


(a)                              hold
all sums held by it for the payment of the principal of and premium, if any, or
interest, if any, on such Securities 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 failure by the Company (or any other obligor upon
such Securities) to make any payment of principal of or premium, if any, or
interest, if any, on such Securities; and


 


(c)                              at
any time during the continuance of any such failure, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent and furnish to the Trustee such information as it possesses
regarding the names and addresses of the Persons entitled to such sums.


 


The Company may at any
time 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, such


 


53





















 


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, if so stated in a Company Order delivered to
the Trustee, in accordance with the provisions of Article IX; 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 (other than money held under the provisions of Article IX),
or then held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any, or interest, if any,
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, upon
such payment or discharge, the Holder of such Security shall, as an unsecured
general creditor and not as the Holder of an Outstanding Security, look only to
the Company for payment of the amount so due and payable and remaining unpaid,
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; provided, however, that the Trustee or such Paying Agent,
before being required to make any such payment to the Company, shall, upon
receipt of a Company Request and at the expense of the Company, cause to be
mailed, on one occasion only, notice to such Holder that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than thirty (30) days from the date of such mailing, any unclaimed balance of
such money then remaining will be paid to the Company.


 


SECTION 6.04 
Corporate Existence.


 


Subject to the rights of
the Company under Article XIII, the Company shall do or cause to be done
all things necessary to preserve and keep its corporate existence in full force
and effect.


 


SECTION 6.05 
Maintenance of Properties.


 


The Company shall cause
(or, with respect to property owned in common with others, make reasonable
effort to cause) the Mortgaged Property, considered as a whole, to be
maintained and kept in good condition, repair and working order, reasonable
wear and tear excepted, and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made such repairs,
renewals, replacements, betterments and improvements thereof, as, in the
judgment of the Company, may be necessary in order that the operation of the
Mortgaged Property, considered as a whole, may be conducted in accordance with
common industry practice; provided, however, that nothing in this
Section shall prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any portion of the
Mortgaged Property; and provided, further, that nothing in this
Section shall prevent the Company from selling, transferring or otherwise
disposing of, or causing the sale, transfer or other disposition of, any
portion of the Mortgaged Property.


 


54





















 


SECTION 6.06 
Payment of Taxes; Discharge of Liens.


 


The Company shall pay all
taxes and assessments and other governmental charges lawfully levied or
assessed upon the Mortgaged Property, or upon any part thereof, or upon the
interest of the Trustee in the Mortgaged Property, before the same shall become
delinquent, and shall make reasonable effort to observe and conform in all
material respects to all valid requirements of any Governmental Authority
relative to any of the Mortgaged Property and all covenants, terms and
conditions upon or under which any of the Mortgaged Property is held; and the
Company shall not suffer any Lien to be created or exist upon the Mortgaged
Property, or any part thereof, prior to the Lien hereof, other than Permitted
Liens and other than, in the case of property hereafter acquired, Purchase
Money Liens and any other Liens existing or placed thereon at the time of the
acquisition thereof; provided, however, that nothing in this
Section contained shall require the Company (i) to observe or conform
to any requirement of Governmental Authority or to cause to be paid or
discharged, or to make provision for, any such Lien, or to pay any such tax,
assessment or governmental charge so long as the validity thereof shall be
contested in good faith and by appropriate legal proceedings, (ii) to pay,
discharge or make provisions for any tax, assessment or other governmental
charge, the validity of which shall not be so contested if adequate security
for the payment of such tax, assessment or other governmental charge and for
any penalties or interest which may reasonably be anticipated from failure to
pay the same shall be given to the Trustee or (iii) to pay, discharge or
make provisions for any Liens existing on the Mortgaged Property at the date of
execution and delivery of this Indenture, as originally executed and delivered.


 


SECTION 6.07  Insurance.


 


(a)                              The
Company shall (i) keep or cause to be kept all the property subject to the
Lien of this Indenture insured against loss by fire, to the extent that
property of similar character is usually so insured by companies similarly
situated and operating like properties, to a reasonable amount, by reputable
insurance companies, the proceeds of such insurance (except as to any loss of
Excepted Property and except as to any particular loss less than the greater of
(A) Five Million Dollars ($5,000,000) and (B) three percentum
(3%) of the principal amount of Securities Outstanding on the date of such
particular loss) to be made payable, subject to applicable law, to the Trustee
as the interest of the Trustee may appear, or to the trustee or other holder of
any other Lien prior hereto upon property subject to the Lien hereof, if the
terms thereof require such payment or (ii) in lieu of or supplementing
such insurance in whole or in part, adopt some other method or plan of
protection against loss by fire at least equal in protection to the method or
plan of protection against loss by fire of companies similarly situated and
operating properties subject to similar fire hazards or properties on which an
equal primary fire insurance rate has been set by reputable insurance
companies; and if the Company shall adopt such other method or plan of
protection, it shall, subject to applicable law (and except as to any loss of
Excepted Property and except as to any particular loss less than the greater of
(X) Five Million Dollars ($5,000,000) and (Y) three percentum
(3%) of the principal amount of Securities Outstanding on the date of such
particular loss) pay to the Trustee on account of any loss covered by such
method or plan an amount in cash equal to the amount of such loss less any
amounts otherwise paid to the trustee or other holder of any other Lien prior
hereto upon property subject to the Lien hereof in respect of such loss if the
terms thereof require such payment.  Any
cash so required to be paid by the Company pursuant to any such method or plan


 


55





















 


shall for the purposes of
this Indenture be deemed to be proceeds of insurance.  In case of the adoption of such other method
or plan of protection, the Company shall also furnish to the Trustee a
certificate of an actuary or other qualified person appointed by the Company
with respect to the adequacy of such method or plan.


 


Anything herein to the
contrary notwithstanding, the Company may have fire insurance policies with
(i) a deductible provision in a dollar amount per occurrence not exceeding
the greater of (A) Five Million Dollars ($5,000,000) and
(B) three percentum (3%) of the principal amount of the Securities
Outstanding on the date such policy goes into effect and/or
(ii) co-insurance or self insurance provisions with a dollar amount per
occurrence not exceeding thirty percentum (30%) of the loss proceeds otherwise
payable; provided, however, that the dollar amount described in
clause (i) above may be exceeded to the extent such dollar amount per
occurrence is below the deductible amount in effect as to fire insurance
(X) on property of similar character insured by companies similarly
situated and operating like property or (Y) on property as to which an
equal primary fire insurance rate has been set by reputable insurance
companies.


 


(b)                             All
moneys paid to the Trustee by the Company in accordance with this
Section or received by the Trustee as proceeds of any insurance, in either
case on account of a loss on or with respect to Funded Property, shall, subject
to the requirements of any other Lien prior hereto upon property subject to the
Lien hereof, be held by the Trustee and, subject to this Section 6.07,
shall be paid by it to the Company to reimburse the Company for an equal amount
expended or committed for expenditure in the rebuilding, renewal and/or
replacement of or substitution for the property destroyed or damaged or lost,
upon receipt by the Trustee of:


 


(i)                                     a
Company Request requesting such payment,


 


(ii)                                  an
Expert’s Certificate:


 


(A)                          describing
the property so damaged or destroyed or otherwise lost;


 


(B)                            stating
the Cost of such property (or, if the Fair Value to the Company of such
property at the time the same became Funded Property was certified to be an
amount less than the Cost thereof, then such Fair Value, as so certified, in
lieu of Cost) or, if such damage or destruction shall have affected only a
portion of such property, stating the allocable portion of such Cost or Fair
Value;


 


(C)                            stating
the amounts so expended or committed for expenditure in the rebuilding,
renewal, replacement of and/or substitution for such property; and


 


(D)                           stating
the Fair Value to the Company of such property as rebuilt or renewed or as to
be rebuilt or renewed and/or of the replacement or substituted property, and if


 


(I)                                    within six months
prior to the date of acquisition thereof by the Company, such property has been
used or operated, by a person or persons other than the Company, in a business
similar to that in which it has been or is to be used or operated by the Company,
and


 


56





















 


(II)                                the Fair Value to the
Company of such property as set forth in such Expert’s Certificate is not less
than Twenty-five Thousand Dollars ($25,000) and not less than one percentum
(1%) of the aggregate principal amount of the Securities at the time
Outstanding,


 


the Expert making the
statement required by this clause (D) shall be an Independent Expert,
and


 


(iii)                               an
Opinion of Counsel stating that, in the opinion of the signer, the property so
rebuilt or renewed or to be rebuilt or renewed, and/or the replacement
property, is or will be subject to the Lien hereof to the same extent as was
the property so destroyed or damaged or otherwise lost.


 


Any such moneys not so
applied within eighteen (18) months after its receipt by the Trustee, or in
respect of which notice in writing of intention to apply the same to the work
of rebuilding, renewal, replacement or substitution then in progress and
uncompleted shall not have been given to the Trustee by the Company within such
eighteen (18) months, or which the Company shall at any time notify the Trustee
is not to be so applied, shall thereafter be withdrawn, used or applied in the
manner, to the extent and for the purposes, and subject to the conditions, provided
in Section 8.06; provided, however, that the amount of such moneys
exceeding seventy percentum (70%) of the amount stated pursuant to
clause (B) in the Expert’s Certificate referred to above, shall not
be deemed to be Funded Cash, shall not be subject to Section 8.06 and
shall be remitted to or upon the order of the Company upon the withdrawal, use
or application of the balance of such moneys pursuant to Section 8.06.


 


Anything in this
Indenture to the contrary notwithstanding, if property on or with respect to
which a loss occurs constitutes Funded Property in part only, the Company may,
at its election, obtain the reimbursement of insurance proceeds attributable to
the part of such property which constitutes Funded Property under this
subsection (b) and obtain the reimbursement of insurance proceeds
attributable to the part of such property which does not constitute Funded
Property under subsection (c) of this Section 6.07.


 


(c)                              All
moneys paid to the Trustee by the Company in accordance with this Section or
received by the Trustee as proceeds of any insurance, in either case on account
of a loss on or with respect to property which does not constitute Funded
Property, shall, subject to other Liens prior hereto upon property subject to
the Lien hereof, be held by the Trustee and, subject as aforesaid, shall be
paid by it to the Company upon receipt by the Trustee of:


 


(i)                                     a Company Request
requesting such payment;


 


(ii)                                  an Expert’s
Certificate stating:


 


(A)                          that
such moneys were paid to or received by the Trustee on account of a loss on or
with respect to property which does not constitute Funded Property; and


 


(B)                            if
true, either (I) that the aggregate amount of the Cost or Fair Value to the
Company (whichever is less) of all Property Additions which do not constitute
Funded Property (excluding, to the extent of such loss, the property on or with
respect to which such loss was incurred), after making deductions therefrom and
additions thereto of the character contemplated by Section 1.03, is not less
than zero (0) or (II) that the amount of such loss does not exceed the


 


57





















 


aggregate Cost or Fair
Value to the Company (whichever is less) of Property Additions acquired, made
or constructed on or after the ninetieth (90th) day prior to the date of the
Company Request requesting such payment; or


 


(C)                            if
neither of the statements contemplated in subclause (B) above can be
made, the amount by which zero (0) exceeds the amount referred to in
subclause (B)(I) above (showing in reasonable detail the calculation
thereof); and


 


(iii)                               if the Expert’s
Certificate required by clause (ii) above contains neither of the
statements contemplated in clause (ii)(B) above, an amount in cash,
to be held by the Trustee as part of the Mortgaged Property, equal to seventy
percentum (70%) of the amount shown in clause (ii)(C) above.


 


To the extent that the
Company shall be entitled to withdraw proceeds of insurance pursuant to this
subsection (c), such proceeds shall be deemed not to constitute Funded
Cash.


 


(d)                             Whenever
under the provisions of this Section the Company is required to deliver
moneys to the Trustee and at the same time shall have satisfied the conditions
set forth herein for payment of moneys by the Trustee to the Company, there
shall be paid to or retained by the Trustee or paid to the Company, as the case
may be, only the net amount.


 


SECTION 6.08 
Recording, Filing, etc.


 


The Company shall cause
this Indenture, as originally executed and delivered, and all indentures and
instruments supplemental hereto (or notices, memoranda or financing statements
as may be recorded or filed to place third parties on notice thereof) to be
promptly recorded and filed and re-recorded and re-filed in such manner and in
such places, as may be required by law in order fully to preserve and protect
the security of the Holders of the Securities and all rights of the Trustee,
and shall furnish to the Trustee:


 


(a)                              promptly
after the execution and delivery of this Indenture, as originally executed and
delivered, and of each supplemental indenture, an Opinion of Counsel either
stating that in the opinion of such counsel this Indenture or such supplemental
indenture (or any other instrument, notice, memorandum or financing statement
in connection therewith) has been properly recorded and filed, so as to make
effective the Lien intended to be created hereby or thereby, and reciting the
details of such action, or stating that in the opinion of such counsel no such
action is necessary to make such Lien effective; provided that such Opinion of
Counsel need not address the priority of the Lien of the Indenture so long as
the Company, concurrently with the delivery of such Opinion of Counsel,
provides a representation and warranty in an Officer’s Certificate that the
Lien of the Indenture is a first priority Lien subject to no prior Lien other
than (i) Permitted Liens and (ii) and other Liens that would not in
the aggregate materially and adversely impair the use of the Mortgaged Property
in the operation of the business of the Company, or materially and adversely
affect the security afforded by the Indenture. 
The Company shall be deemed to be in compliance with this
subsection (a) if (i) the Opinion of Counsel herein required to
be delivered to the Trustee shall state that this Indenture or such
supplemental indenture (or any other instrument, notice, memorandum or
financing statement in


 


58





















 


connection
therewith) has been received for record or filing in each jurisdiction in which
it is required to be recorded or filed and that, in the opinion of such
counsel, such receipt for record or filing makes effective the Lien intended to
be created by this Indenture or such supplemental indenture; provided that such
Opinion of Counsel need not address the priority of the Lien of the Indenture
so long as the Company, concurrently with the delivery of such Opinion of
Counsel, provides a representation and warranty in an Officer’s Certificate
that the Lien of the Indenture is a first priority Lien subject to no prior
Lien other than (i) Permitted Liens and (ii) and other Liens that
would not in the aggregate materially and adversely impair the use of the
Mortgaged Property in the operation of the business of the Company, or
materially and adversely affect the security afforded by the Indenture, and
(ii) such opinion is delivered to the Trustee within such time, following
the date of the execution and delivery of this Indenture, as originally
executed and delivered, or such supplemental indenture, as shall be practicable
having due regard to the number and distance of the jurisdictions in which this
Indenture or such supplemental indenture (or such other instrument, notice,
memorandum or financing statement in connection therewith) is required to be
recorded or filed; and


 


(b)                             on
or before May 1 of each year, beginning May 1, 2004, an Opinion of
Counsel stating either (i) that in the opinion of such counsel such action
has been taken, since the date of the most recent Opinion of Counsel furnished
pursuant to this subsection (b) or the first Opinion of Counsel
furnished pursuant to subsection (a) of this Section, with respect to
the recording, filing, re-recording, and re-filing of this Indenture and of
each indenture supplemental to this Indenture (or any other instrument, notice,
memorandum or financing statement in connection therewith), as is necessary to
maintain the effectiveness of the Lien hereof, and reciting the details of such
action, or (ii) that in the opinion of such counsel no such action is
necessary to maintain the effectiveness of such Lien; provided that such
Opinion of Counsel need not address the priority of the Lien of the Indenture
so long as the Company, concurrently with the delivery of such Opinion of Counsel,
provides a representation and warranty in an Officer’s Certificate that the
Lien of the Indenture is a first priority Lien subject to no prior Lien other
than (i) Permitted Liens and (ii) and other Liens that would not in
the aggregate materially and adversely impair the use of the Mortgaged Property
in the operation of the business of the Company, or materially and adversely
affect the security afforded by the Indenture.


 


The Company shall execute
and deliver such supplemental indenture or indentures and such further
instruments and do such further acts as may be necessary or proper to carry out
the purposes of this Indenture and to make subject to the Lien hereof any
property hereafter acquired, made or constructed and intended to be subject to
the Lien hereof, and to transfer to any new trustee or trustees or co-trustee
or co-trustees, the estate, powers, instruments or funds held in trust
hereunder.


 


SECTION 6.09 
Waiver of Certain Covenants.


 


The Company may omit in
any particular instance to comply with any term, provision or condition set
forth in:


 


(a)                              any
covenant or restriction specified with respect to the Securities of any one or
more series, or any one or more Tranches thereof, as contemplated by
Section 3.01 if


 


59





















 


before the time for such
compliance the Holders of at least a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches with respect to which
compliance with such covenant or restriction is to be omitted, considered as
one class, shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition;
provided, however, that no such waiver shall be effective as to any of the
matters contemplated in clause (a), (b), (c) or (d) in
Section 14.02 without the consent of the Holders specified in such
Section; and


 


(b)                             Section 6.04,
6.05, 6.06 or 6.07 or Article XIII if before the time for such compliance
the Holders of at least a majority in principal amount of Securities
Outstanding under this Indenture shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such term,
provision or condition;


 


but, in either case, 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 6.10 
Annual Officer’s Certificate as to Compliance; Statement by Officer as
to Default.


 


Not later than May 1
in each year, commencing May 1, 2004, the Company shall deliver to the
Trustee an Officer’s Certificate executed by the principal executive officer,
the principal financial officer or the principal accounting officer of the
Company, as to such officer’s knowledge of the Company’s compliance with all
conditions and covenants under this Indenture, such compliance to be determined
without regard to any period of grace or requirement of notice under this
Indenture.


 


The Company shall deliver
to the Trustee, for delivery to the Holders, as soon as possible and in any
event within five calendar 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 Officer’s Certificate
setting forth the details of such default or Event of Default and the action
which the Company proposes to take with respect thereto.


 


SECTION 6.11  Environmental


 


(a)                              In
addition to and without limitation of all other representations, warranties and
covenants made by the Company under this Indenture, the Company further
represents, warrants and covenants that the Company has not used Hazardous
Materials (as defined hereinafter) on, from or affecting the Mortgaged Property
or any part thereof in any manner which materially violates any applicable
federal, state or local laws, ordinances, rules, or regulations governing the
use, storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials; the Company is not conducting
its operations, nor has previously conducted its operations in material
violation of any applicable Environmental Law (as defined hereinafter); and
that, to the knowledge of the Company, there are no Hazardous Materials located
in, at, on, or under the Mortgaged Property that are


 


60





















 


reasonably expected to
require the Company to incur material costs or expenses for investigation,
removal, or remedial or corrective action, or that are reasonably likely to
result in material liabilities of, or losses, damages or costs to the Company
under any applicable Environmental Laws. 
To the Company’s knowledge, no prior or current owner, operator or
tenant of any of the Mortgaged Property has used or is using Hazardous Materials
on, from, or affecting any of the Mortgaged Property in any manner which
materially violates any applicable Environmental Law.  Without limiting the foregoing, the Company
shall not cause or permit the Mortgaged Property or any part thereof to be used
to generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce or process Hazardous Materials, except in material compliance
with all, or in a manner that would not reasonably be expected to result in
material liability or costs under any, Environmental Laws, nor shall the
Company cause or permit, as a result of any intentional or unintentional act or
omission on the part of the Company or any tenant, a release of Hazardous
Materials onto the Mortgaged Property or any portion thereof or onto any other
property that would result in the incurrence by the Company of material costs
or liabilities under applicable Environmental Laws.  The Company shall comply in all material
respects with, and undertake all commercially reasonable efforts to ensure
compliance by all tenants with, all applicable Environmental Laws, whenever and
by whomever triggered, and shall obtain and comply in all material respects
with, and undertake all commercially reasonable efforts to ensure that all
tenants obtain and comply with, any and all approvals, registrations or permits
required thereunder.


 


(b)                             For
purposes of this Section 6.11, Section 11.04, and Section 11.07
hereof, “Hazardous Materials” means, without limit, any pollutant, contaminant
or hazardous, toxic, medical, biohazardous, or dangerous waste, substance,
constituent or material, defined or regulated as such in, or for purpose of,
any applicable Environmental Law, including, without limitation, any asbestos,
any petroleum, oil (including crude oil or any fraction thereof), any radioactive
substance, any polychlorinated biphenyls, any toxin, chemical, disease-causing
agent or pathogen, and any other substance that gives rise to liability under
any applicable Environmental Law.


 


“Environmental Law” means
the Comprehensive Environmental Response, Compensation and Liability Act, as
amended (“CERCLA”), the Resource Conservation and Recovery Act of 1976, as
amended, and any other applicable federal, state, local, or foreign statute,
rule, regulation, order, judgment, directive, decree, permit, license or common
law as in effect now, previously, or at any time during the term of this
Indenture, and regulating, relating to, or imposing liability or standards of
conduct concerning air emissions, water discharges, noise emissions, the release
or threatened release or discharge of any Hazardous Material into the
environment, the use, manufacture, production, refinement, generation,
handling, treatment, storage, transport or disposal of any Hazardous Material
or otherwise concerning pollution or the protection of the outdoor or indoor
environment, or human health or safety in relation to exposure to Hazardous
Materials.


 


ARTICLE VII


 


[Reserved]


 


61





















 


ARTICLE VIII



Possession, Use And Release of Mortgaged Property


 


SECTION 8.01  Quiet Enjoyment.


 


Unless one or more Events
of Default shall have occurred and be continuing, the Company shall be
permitted to possess, use and enjoy the Mortgaged Property (except, to the
extent not herein otherwise provided, such cash and securities as are expressly
required to be deposited with the Trustee).


 


SECTION 8.02 
Dispositions without Release.


 


Unless an Event of
Default shall have occurred and be continuing, the Company may at any time and
from time to time, without any release or consent by, or report to, the
Trustee:


 


(a)                              sell
or otherwise dispose of, free from the Lien of this Indenture, any machinery,
equipment, apparatus, towers, transformers, poles, lines, cables, conduits,
ducts, conductors, meters, regulators, holders, tanks, retorts, purifiers,
odorizers, compressors, valves, pumps, mains, pipes, service pipes, fittings,
connections, services, tools, implements, or any other fixtures or personalty,
then subject to the Lien hereof, which shall have become old, inadequate,
obsolete, worn out, unfit, unadapted, unserviceable, undesirable or unnecessary
for use in the operations of the Company upon replacing the same by, or
substituting for the same, similar or analogous property, or other property
performing a similar or analogous function or otherwise obviating the need
therefor, having a Fair Value to the Company at least equal to that of the
property sold or otherwise disposed of and subject to the Lien hereof, subject
to no Liens prior hereto except Permitted Liens and any other Liens to which
the property sold or otherwise disposed of was subject;


 


(b)                             cancel
or make changes or alterations in or substitutions for any and all easements,
servitudes, rights-of-way and similar rights and/or interests; and


 


(c)                              grant,
free from the Lien of this Indenture, easements, ground leases or rights-of-way
in, upon, over and/or across the property or rights-of-way of the Company for
the purpose of roads, pipe lines, transmission lines, distribution lines,
communication lines, railways, removal of coal or other minerals or timber, and
other like purposes, or for the joint or common use of real property,
rights-of-way, facilities and/or equipment; provided, however, that such grant
shall not materially impair the use of the property or rights-of-way for the
purposes for which such property or rights-of-way are held by the Company.


 


SECTION 8.03 
Release of Funded Property.


 


Unless an Event of
Default shall have occurred and be continuing, the Company may obtain the
release of any part of the Mortgaged Property, or any interest therein, which
constitutes Funded Property, and the Trustee shall release all its right, title
and interest in and to the same from the Lien hereof, upon receipt by the
Trustee of:


 


62





















 


(a)                              a
Company Order requesting the release of such property and transmitting
therewith a form of instrument to effect such release;


 


(b)                             an
Officer’s Certificate stating that, to the knowledge of the signer, no Event of
Default has occurred and is continuing;


 


(c)                              an
Expert’s Certificate made and dated not more than ninety (90) days prior to the
date of such Company Order:


 


(i)                                     describing
the property to be released;


 


(ii)                                  stating
the Fair Value, in the judgment of the signers, of the property to be released;


 


(iii)                               stating
the Cost of the property to be released (or, if the Fair Value to the Company
of such property at the time the same became Funded Property was certified to
be an amount less than the Cost thereof, then such Fair Value, as so certified,
in lieu of Cost); and


 


(iv)                              stating
that, in the judgment of the signers, such release will not impair the security
under this Indenture in contravention of the provisions hereof;


 


(d)                             an
amount in cash to be held by the Trustee as part of the Mortgaged Property,
equal to the amount, if any, by which seventy percentum (70%) of the amount
referred to in clause (c)(iii) above exceeds the aggregate of the
following items:


 


(i)                                     an amount equal to
seventy percentum (70%) of the aggregate principal amount of any obligations
secured by Purchase Money Lien delivered to the Trustee, to be held as part of
the Mortgaged Property, subject to the limitations hereafter in this
Section set forth;


 


(ii)                                  an amount equal to
seventy percentum (70%) of the Cost or Fair Value to the Company (whichever is
less), after making any deductions and any additions pursuant to
Section 1.03, of any Property Additions not constituting Funded Property
described in an Expert’s Certificate, dated not more than ninety (90) days
prior to the date of the Company Order requesting such release and complying
with clause (ii) and, to the extent applicable,
clause (iii) in Section 4.02(b), delivered to the Trustee;
provided, however, that the deductions and additions contemplated by
Section 1.03 shall not be required to be made if such Property Additions
were acquired, made or constructed on or after the ninetieth (90th) day
preceding the date of such Company Order;


 


(iii)                               the aggregate principal
amount of Securities to the authentication and delivery of which the Company
shall be entitled under the provisions of Section 4.03, by virtue of
compliance with all applicable provisions of Section 4.03 (except as
hereinafter in this Section otherwise provided); provided, however, that
such release shall operate as a waiver by the Company of the right to the
authentication and delivery of such Securities and, to such extent, no such
Securities may thereafter be authenticated and delivered hereunder; and any
Securities which were the basis of such right to the authentication and
delivery of Securities so waived shall be deemed to have been made the basis of
such release of property;


 


63





















 


(iv)                              any amount in cash and/or
an amount equal to seventy percentum (70%) of the aggregate principal amount of
any obligations secured by Purchase Money Lien that, in either case, is
evidenced to the Trustee by a certificate of the trustee or other holder of a
Lien prior to the Lien of this Indenture to have been received by such trustee
or other holder in accordance with the provisions of such Lien in consideration
for the release of such property or any part thereof from such Lien, all
subject to the limitations hereafter in this Section set forth;


 


(v)                                 the aggregate
principal amount of any Outstanding Securities delivered to the Trustee; and


 


(vi)                              any taxes and expenses
incidental to any sale, exchange, dedication or other disposition of the
property to be released;


 


(e)                              if
the release is on the basis of Property Additions or on the basis of the right
to the authentication and delivery of Securities under Section 4.03, all
documents contemplated below in this Section; and


 


(f)                                if
the release is on the basis of the delivery to the Trustee or to the trustee or
other holder of a prior Lien of obligations secured by Purchase Money Lien, all
documents contemplated below in this Section, to the extent required.


 


If and to the extent that
the release of property is, in whole or in part, based upon Property Additions (as
permitted under the provisions of clause (d)(ii) in the first
paragraph of this Section), the Company shall, subject to the provisions of
said clause (d)(ii) and except as hereafter in this paragraph
provided, comply with all applicable provisions of this Indenture as if such
Property Additions were to be made the basis of the authentication and delivery
of Securities equal in principal amount to seventy percentum (70%) of the Cost
(or, as to property of which the Fair Value to the Company at the time the same
became Funded Property was certified to be an amount less than the Cost
thereof, such Fair Value, as so certified, in lieu of Cost) of that portion of
the property to be released which is to be released on the basis of such
Property Additions, as shown by the Expert’s Certificate required by
clause (c) in the first paragraph of this Section; provided, however,
that the Cost of any Property Additions received or to be received by the
Company in whole or in part as consideration in exchange for the property to be
released shall for all purposes of this Indenture be deemed to be the amount
stated in the Expert’s Certificate provided for in clause (c) in the
first paragraph of this Section to be the Fair Value of the property to be
released (x) plus the amount of any cash and the fair market value of any
other consideration, further to be stated in such Expert’s Certificate, paid
and/or delivered or to be paid and/or delivered by, and the amount of any
obligations assumed or to be assumed by, the Company in connection with such
exchange as additional consideration for such Property Additions and/or (y)
less the amount of any cash and the fair market value of any other
consideration, which shall also be stated in such Expert’s Certificate,
received or to be received by the Company in connection with such exchange in
addition to such Property Additions.  If
and to the extent that the release of property is in whole or in part based
upon the right to the authentication and delivery of Securities under
Section 4.03 (as permitted under the provisions of
clause (d)(iii) in the first paragraph of this Section), the Company
shall, except as hereafter in this paragraph provided, comply with all
applicable provisions of Section 4.03 relating to such


 


64





















 


authentication and
delivery.  Notwithstanding the foregoing
provisions of this paragraph, in no event shall the Company be required to
deliver the documents specified in Section 4.01.


 


If the release of
property is, in whole or in part, based upon the delivery to the Trustee or the
trustee or other holder of a Lien prior to the Lien of this Indenture of
obligations secured by Purchase Money Lien, the Company shall deliver to the
Trustee:


 


(a)                                  an
Officer’s Certificate (i) stating that no event has occurred and is
continuing which entitles the holder of such Purchase Money Lien to accelerate
the maturity of the obligations, if any, outstanding thereunder and
(ii) reciting the aggregate principal amount of obligations, if any, then
outstanding thereunder in addition to the obligations then being delivered in
connection with the release of such property and the terms and conditions, if
any, on which additional obligations secured by such Purchase Money Lien are
permitted to be issued; and


 


(b)                                 an
Opinion of Counsel stating that, in the opinion of the signer, (i) such
obligations are valid obligations, entitled to the benefit of such Purchase
Money Lien equally and ratably with all other obligations, if any, then
outstanding thereunder, (ii) that such Purchase Money Lien constitutes,
or, upon the delivery of, and/or the filing and/or recording in the proper
places and manner of, the instruments of conveyance, assignment or transfer, if
any, specified in such opinion, will constitute, a Lien upon the property to be
released, subject to no Lien prior thereto except Liens generally of the
character of Permitted Liens and such Liens, if any, as shall have existed
thereon immediately prior to such release as Liens prior to the Lien of this
Indenture, (iii) if any obligations in addition to the obligations being
delivered in connection with such release of property are then outstanding, or
are permitted to be issued, under such Purchase Money Lien, (A) that such
Purchase Money Lien constitutes, or, upon the delivery of, and/or the filing
and/or recording in the proper places and manner of, the instruments of
conveyance, assignment or transfer, if any, specified in such opinion, will
constitute, a Lien upon all other property, if any, purporting to be subject
thereto, subject to no Lien prior thereto except Liens generally of the
character of Permitted Liens and Liens permitted to exist or to be hereafter
created under Section 6.06 and (B) that the terms of such Purchase
Money Lien, as then in effect, do not permit the issuance of obligations
thereunder except on the basis of property generally of the character of
Property Additions, the retirement or deposit of outstanding obligations, the
deposit of prior Lien obligations or the deposit of cash.


 


Anything herein to the
contrary notwithstanding (a) the aggregate principal amount of obligations
secured by Purchase Money Lien which may be used pursuant to
subclause (i) and/or subclause (iv) of
clause (d) in the first paragraph of this Section as the basis
for the release of property from the Lien of this Indenture shall not exceed
seventy-five percentum (75%) of the Fair Value of the property to be released,
as certified pursuant to clause (c)(ii) in the first paragraph of
this Section, and (b) no obligations secured by Purchase Money Lien shall
be used as the basis for the release of property hereunder, if the aggregate
principal amount of such obligations to be used by the Company pursuant to
subclause (i) and/or subclause (iv) of such clause (d) plus
the aggregate principal amount used by the Company pursuant to said
subclause (i) and subclause (iv) in connection with all
previous releases of property from the Lien hereof on the basis of obligations
secured by Purchase Money Lien theretofore delivered to and then held by the
Trustee or the trustee or other holder of a Lien prior


 


65





















 


to the Lien of
this Indenture shall, immediately after the release then being applied for,
exceed forty percentum (40%) of the aggregate principal amount of Securities
then Outstanding; provided, however, that the limitation set forth in
clause (a) above shall not be applicable if no additional obligations
are then outstanding, or are permitted to be issued, under the Purchase Money
Lien securing such obligations; and provided, further, that there shall not be
taken into account for purposes of the calculation contemplated in
clause (b) above any obligations secured by Purchase Money Lien with
respect to which there shall have been delivered to the Trustee:


 


(x)                                   an
Officer’s Certificate (i) if any obligations shall then be outstanding
under such Purchase Money Lien and/or additional obligations are permitted to
be issued thereunder, either (A) stating that the terms of such Purchase
Money Lien, as then in effect, do not permit the issuance of obligations
thereunder on the basis of property additions in a principal amount exceeding
seventy percentum (70%) of the balance of the cost or fair value of such
property additions to the issuer thereof (whichever shall be less) after making
deductions and additions similar to those provided for in Section 1.03, or
(B) in the event that the statements contained in
clause (A) above cannot be made, stating that such issuer has
irrevocably waived its right to the authentication and delivery of obligations
under such Purchase Money Lien (1) on any basis, in a principal amount
equal to the excess of (I) the aggregate principal amount of obligations,
if any, then outstanding under such Purchase Money Lien which were issued on
the basis of property additions or on the basis of the retirement of
obligations which were issued (whether directly or indirectly when considered
in light of the successive issuance and retirement of obligations) on the basis
of property additions over (II) an amount equal to seventy percentum (70%)
of the aggregate Dollar amount of property additions certified as the basis for
the issuance of such obligations then outstanding and (2) on the basis of
property additions, in a principal amount exceeding seventy percentum (70%) of
the balance of the cost or fair value thereof to such issuer (whichever shall
be less) after making deductions and additions similar to those provided for in
Section 1.03 and (ii) stating either (A) that the obligations
secured by such Purchase Money Lien delivered to the Trustee or to the trustee
or other holder of a Lien prior to the Lien of this Indenture as the basis for
such release of property contain a provision for mandatory redemption upon the
acceleration of the maturity of all Outstanding Securities following an Event
of Default (whether or not such redemption may be rescinded upon the rescission
of such acceleration) or (B) that so long as such obligations are held by
the Trustee or the trustee or other holder of such a prior Lien, an Event of
Default under this Indenture constitutes a matured event of default under such
Purchase Money Lien (provided, however, that the waiver or cure of such Event
of Default hereunder and the rescission and annulment of the consequences
thereof may constitute a cure of the corresponding event of default under such
Purchase Money Lien and a rescission and annulment of the consequences
thereof); and


 


(y)                                 an
Opinion or Opinions of Counsel to the effect that (i) if any obligations
shall then be outstanding under such Purchase Money Lien and/or additional
obligations are permitted to be issued thereunder, to the effect either
(A) that the terms of such Purchase Money Lien, as then in effect, do not
permit the issuance of obligations thereunder upon the basis of property
additions in a principal amount exceeding seventy percentum (70%) of the
balance of the cost or the fair value thereof to the issuer of such obligations
(whichever shall be less) after making deductions and additions similar to
those provided for in Section 1.03, or, if such is not the case,
(B) that the waivers contemplated by clause (x)(i)(B) above have
been duly made and (ii) to the effect either (A) that the obligations
secured by such Purchase Money Lien delivered to


 


66





















 


the Trustee or to
the trustee or other holder of a Lien prior to the Lien of this Indenture as
the basis for such release of property contain a provision for mandatory
redemption upon an acceleration) of the maturity of all Outstanding Securities
following an Event of Default (whether or not such redemption may be rescinded
upon the rescission of such acceleration) or (B) that, so long as such
obligations are held by the Trustee or the trustee or other holder of such a
prior Lien, an Event of Default under this Indenture constitutes a matured
event of default under such Purchase Money Lien (provided, however, that the
waiver or cure of such Event of Default hereunder and the rescission and
annulment of the consequences thereof may constitute a cure of the
corresponding event of default under such Purchase Money Lien and a rescission
and annulment of the consequences thereof).


 


If (a) any property
to be released from the Lien of this Indenture under any provision of this
Article (other than Section 8.07) is subject to a Lien prior to the
Lien hereof and is to be sold, exchanged, dedicated or otherwise disposed of
subject to such prior Lien and (b) after such release, such prior Lien will
not be a Lien on any property subject to the Lien hereof, then the Fair Value
of such property to be released shall be deemed, for all purposes of this
Indenture, to be the value thereof unencumbered by such prior Lien less the
principal amount of the indebtedness secured by such prior Lien.


 


Any Outstanding
Securities delivered to the Trustee pursuant to clause (d) in the
first paragraph of this Section shall forthwith be canceled by the
Trustee.  Any cash and/or obligations so
deposited with the Trustee, and the proceeds of any such obligations, shall be
held as part of the Mortgaged Property and shall be withdrawn, released, used
or applied in the manner, to the extent and for the purposes, and subject to
the conditions, provided in Section 8.06.


 


All purchase money
obligations and the mortgages securing the same delivered to the Trustee
pursuant to this Section shall be duly assigned to the Trustee.  The Company shall cause any such purchase
money mortgages and the assignment thereof to be promptly recorded and filed in
such place or places as shall be required by law in order fully to preserve and
protect the security afforded thereby and shall furnish to the Trustee an
Opinion of Counsel stating that, in the opinion of the signer, such purchase
money mortgages and the assignment thereof have been properly recorded and
filed so as to make effective the Lien intended to be created thereby.  Should any re-recording or re-filing be
necessary at any time or from time to time, the Company shall likewise cause
the same to be duly effected and shall, in each case, furnish to the Trustee an
opinion of Counsel similar to the foregoing. 
The Trustee shall deliver to the Company any purchase money mortgages
and/or assignment thereof whenever required for the purpose of recording or
filing or re-recording or re-filing, as evidenced by an Opinion of Counsel, and
the same shall be promptly returned to the Trustee when such purposes shall
have been accomplished.


 


Anything in this
Indenture to the contrary notwithstanding, if property to be released
constitutes Funded Property in part only, the Company shall obtain the release
of the part of such property which constitutes Funded Property under this
Section 8.03 and obtain the release of the part of such property which does
not constitute Funded Property under Section 8.04.  In such event, (a) the application of
Property Additions in the release under this Section 8.03 as contemplated
in clause (d)(ii) in the first paragraph thereof shall be taken into


 


67





















 


account in
clause (v) or clause (vi), whichever may be applicable, of the
Expert’s Certificate described in clause (c) in Section 8.04 and
(b) the Trustee shall, at the election of the Company, execute and deliver
a separate instrument of release with respect to the property released under
each of such Sections or a consolidated instrument of release with respect to
the property released under both of such Sections considered as a whole.


 


SECTION 8.04 
Release of Property Not Constituting Funded Property.


 


Unless an Event of
Default shall have occurred and be continuing, the Company may obtain the
release of any part of the Mortgaged Property, or any interest therein, which
does not constitute Funded Property, and the Trustee shall release all its
right, title and interest in and to the same from the Lien hereof, upon receipt
by the Trustee of:


 


(a)                              a
Company Order requesting the release of such property and transmitting
therewith a form of instrument to effect such release;


 


(b)                             an
Officer’s Certificate stating that, to the knowledge of the signer, no Event of
Default has occurred and is continuing;


 


(c)                              an
Expert’s Certificate, made and dated not more than ninety (90) days prior to
the date of such Company Order:


 


(i)                                     describing
the property to be released;


 


(ii)                                  stating
the Fair Value, in the judgment of the signers, of the property to be released;


 


(iii)                               stating
the Cost of the property to be released;


 


(iv)                              stating
that the property to be released does not constitute Funded Property;


 


(v)                                 if
true, stating either (A) that the aggregate amount of the Cost or Fair
Value to the Company (whichever is less) of all Property Additions which do not
constitute Funded Property (excluding the property to be released), after
making deductions therefrom and additions thereto of the character contemplated
by Section 1.03, is not less than zero (0) or (B) that the Cost
or Fair Value (whichever is less) of the property to be released does not
exceed the aggregate Cost or Fair Value to the Company (whichever is less) of
Property Additions acquired, made or constructed on or after the ninetieth
(90th) day prior to the date of the Company Order requesting such release;


 


(vi)                              if
neither of the statements contemplated in subclause (v) above can be
made, stating the amount by which zero (0) exceeds the amount referred to
in subclause (v)(A) above (showing in reasonable detail the
calculation thereof);


 


(vii)                           stating
that, in the judgment of the signers, such release will not impair the security
under this Indenture in contravention of the provisions hereof; and


 


68





















 


(d)                             if
the Expert’s Certificate required by clause (c) above contains
neither of the statements contemplated in clause (c)(v) above, an
amount in cash, to be held by the Trustee as part of the Mortgaged Property,
equal to the amount, if any, by which seventy percentum (70%) of the lower of
(i) the Cost or Fair Value (whichever shall be less) of the property to be
released and (ii) the amount shown in clause (c)(vi) above
exceeds the aggregate of items of the character described in
subclauses (iii) and (v) of clause (d) in the first
paragraph of Section 8.03 then to be used as a credit under this Section 8.04
(subject, however, to the same limitations and conditions with respect to such
items as are set forth in Section 8.03); and


 


(e)                                  an
Opinion of Counsel stating that all conditions precedent provided for in this
Indenture relating to the release of such property have been complied with.


 


SECTION 8.05 
Release of Minor Properties.


 


Notwithstanding the
provisions of Sections 8.03 and 8.04, unless an Event of Default shall
have occurred and be continuing, the Company may obtain the release from the
Lien hereof of any part of the Mortgaged Property, or any interest therein, and
the Trustee shall whenever from time to time requested by the Company in a
Company Order transmitting therewith a form of instrument to effect such
release, and without requiring compliance with any of the provisions of Section 8.03
or 8.04, release from the Lien hereof all the right, title and interest of the
Trustee in and to the same provided that the aggregate Fair Value of the
property to be so released on any date in a given calendar year, together with
all other property released pursuant to this Section 8.05 in such calendar
year, shall not exceed the greater of (a) Five Million Dollars
($5,000,000) and (b) three percentum (3%) of the aggregate principal
amount of Securities then Outstanding. 
Prior to the granting of any such release, there shall be delivered to
the Trustee (x) an Officer’s Certificate stating that, to the knowledge of
the signer, no Event of Default has occurred and is continuing and (y) an
Expert’s Certificate stating, in the judgment of the signers, the Fair Value of
the property to be released, the aggregate Fair Value of all other property
theretofore released pursuant to this Section in such calendar year and,
as to Funded Property, the Cost thereof (or, if the Fair Value to the Company
of such property at the time the same became Funded Property was certified to
be an amount less than the Cost thereof, then such Fair Value, as so certified,
in lieu of Cost), and that, in the judgment of the signers, the release thereof
will not impair the security under this Indenture in contravention of the
provisions hereof.  On or before
December 31st of each calendar year, the Company shall deposit with the
Trustee an amount in cash equal to seventy percentum (70%) of the aggregate
Cost of the properties constituting Funded Property so released during such
year (or, if the Fair Value to the Company of any particular property at the
time the same became Funded Property was certified to be an amount less than
the Cost thereof, then such Fair Value, as so certified, in lieu of Cost);
provided, however, that no such deposit shall be required to be made hereunder
to the extent that cash or other consideration shall, as indicated in an
Officer’s Certificate delivered to the Trustee, have been deposited with the
trustee or other holder of the Liens prior to the Lien of this Indenture in
accordance with the provisions thereof; and provided, further, that the amount
of cash so required to be deposited may be reduced, at the election of the
Company, by the items specified in clause (d) in the first paragraph
of Section 8.03, subject to all of the limitations and conditions
specified in such Section, to the same extent as if such property were being
released pursuant to Section 8.03. 
Any cash deposited with the Trustee under this Section may
thereafter


 


69





















 


be withdrawn, used
or applied in the manner, to the extent and for the purposes, and subject to
the conditions, provided in Section 8.06.


 


SECTION 8.06 
Withdrawal or Other Application of Funded Cash; Purchase Money
Obligations.


 


Subject to the provisions
of Section 4.04 and except as hereafter in this Section provided,
unless an Event of Default shall have occurred and be continuing, any Funded
Cash held by the Trustee, and any other cash which is required to be withdrawn,
used or applied as provided in this Section,


 


(a)                              may
be withdrawn from time to time by the Company to the extent of an amount equal
to seventy percentum (70%) of the Cost or the Fair Value to the Company (whichever
is less) of Property Additions not constituting Funded Property, after making
any deductions and additions pursuant to Section 1.03, described in an
Expert’s Certificate, dated not more than ninety (90) days prior to the date of
the Company Order requesting such withdrawal and complying with
clause (ii) and, to the extent applicable, clause (iii) in
Section 4.02(b), delivered to the Trustee; provided, however, that the
deductions and additions contemplated by Section 1.03 shall not be
required to be made if such Property Additions were acquired, made or
constructed on or after the ninetieth (90th) day preceding the date of such
Company Order;


 


(b)                             may
be withdrawn from time to time by the Company in an amount equal to the
aggregate principal amount of Securities to the authentication and delivery of
which the Company shall be entitled under the provisions of Section 4.03
hereof, by virtue of compliance with all applicable provisions of
Section 4.03 (except as hereinafter in this Section otherwise provided);
provided, however, that such withdrawal of cash shall operate as a waiver by
the Company of the right to the authentication and delivery of such Securities
and, to such extent, no such Securities may thereafter be authenticated and
delivered hereunder; and any such Securities which were the basis of such right
to the authentication and delivery of Securities so waived shall be deemed to
have been made the basis of such withdrawal of cash;


 


(c)                              may
be withdrawn from time to time by the Company in an amount equal to the
aggregate principal amount of any Outstanding Securities delivered to the
Trustee;


 


(d)                             may,
upon the request of the Company, be used by the Trustee for the purchase of
Securities in the manner, at the time or times, in the amount or amounts, at
the price or prices and otherwise as directed or approved by the Company, all
subject to the limitations hereafter in this Section set forth; or


 


(e)                              may,
upon the request of the Company, be applied by the Trustee to the payment (or
provision therefor pursuant to Article IX) at Stated Maturity of any
Securities or to the redemption (or similar provision therefor) of any
Securities which are, by their terms, redeemable, in each case of such series
as may be designated by the Company, any such redemption to be in the manner
and as provided in Article V, all subject to the limitations hereafter in
this Section set forth.


 


Such moneys shall, from
time to time, be paid or used or applied by the Trustee, as aforesaid, upon the
request of the Company in a Company Order, and upon receipt by the


 


70





















 


Trustee of an
Officer’s Certificate stating that, to the knowledge of the signer, no Event of
Default has occurred and is continuing. 
If and to the extent that the withdrawal of cash is based upon Property
Additions (as permitted under the provisions of clause (a) above),
the Company shall, subject to the provisions of said clause (a) and
except as hereafter in this paragraph provided, comply with all applicable provisions
of this Indenture as if such Property Additions were made the basis for the
authentication and delivery of Securities equal in principal amount to the cash
so to be withdrawn.  If and to the extent
that the withdrawal of cash is based upon the right to the authentication and
delivery of Securities (as permitted under the provisions of
clause (b) above), the Company shall, except as hereafter in this
paragraph provided, comply with all applicable provisions of Section 4.03
relating to such authentication and delivery. 
Notwithstanding the foregoing provisions of this paragraph, in no event
shall the Company be required to deliver the documents specified in
Section 4.01.


 


Notwithstanding the
generality of clauses (d) and (e) above, no cash to be applied
pursuant to such clauses shall be applied to the payment of an amount in excess
of the principal amount of any Securities to be purchased, paid or redeemed
except to the extent that the aggregate principal amount of all Securities
theretofore, and of all Securities then to be, purchased, paid or redeemed
pursuant to such clauses is not less than the aggregate cost for principal of,
premium, if any, and accrued interest, if any, on and brokerage commissions, if
any, with respect to, such Securities.


 


Any Outstanding
Securities delivered to the Trustee pursuant to clause (c) in the
first paragraph of this Section shall forthwith be canceled by the
Trustee.


 


Any obligations secured
by Purchase Money Lien delivered to the Trustee in consideration of the release
of property from the Lien of this Indenture, together with any evidence of such
Purchase Money Lien held by the Trustee, shall be released from the Lien of
this Indenture and delivered to or upon the order of the Company upon payment
by the Company to the Trustee of an amount in cash equal to the aggregate
principal amount of such obligations less the aggregate amount theretofore paid
to the Trustee (by the Company, the obligor or otherwise) in respect of the
principal of such obligations.


 


The principal of and
interest on any such obligations secured by Purchase Money Lien held by the
Trustee shall be held by the Trustee as and when the same are received by the
Trustee.  The interest received by the
Trustee on any such obligations shall be deemed not to constitute Funded Cash
and shall be remitted to the Company; provided, however, that if an Event of
Default shall have occurred and be continuing, such proceeds shall be held as
part of the Mortgaged Property until such Event of Default shall have been cured
or waived.


 


The Trustee shall have
and may exercise all the rights and powers of any owner of such obligations and
of all substitutions therefor and, without limiting the generality of the
foregoing, may collect and receive all insurance moneys payable to it under any
of the provisions thereof and apply the same in accordance with the provisions
thereof, may consent to extensions thereof at a higher or lower rate of
interest, may join in any plan or plans of voluntary or involuntary
reorganization or readjustment or rearrangement and may accept and hold
hereunder new obligations, stocks or other securities issued in exchange
therefor under any such plan.  Any
discretionary action which the Trustee may be entitled to take in connection
with any such


 


71





















 


obligations or
substitutions therefor shall be taken, so long as no Event of Default shall
have occurred and be continuing, in accordance with a Company Order, and,
during the continuance of an Event of Default, in its own discretion.


 


Anything herein to the
contrary notwithstanding, the Company may irrevocably waive all right to the
withdrawal pursuant to this Section of, and any other rights with respect
to, any obligations secured by Purchase Money Lien held by the Trustee, and the
proceeds of any such obligations, by delivery to the Trustee of a Company
Order:


 


(a)                                  specifying
such obligations and stating that the Company thereby waives all rights to the
withdrawal thereof and of the proceeds thereof pursuant to this Section, and
any other rights with respect thereto; and


 


(b)                                 directing
that the principal of such obligations be applied as provided in
clause (e) in the first paragraph of this Section, specifying the
Securities to be paid or redeemed or for the payment or redemption of which
payment is to be made.


 


Following any such
waiver, the interest on any such obligations shall be applied to the payment of
interest, if any, on the Securities to be paid or redeemed or for the payment
or redemption of which provision is to be made, as specified in the aforesaid
Company Order, as and when such interest shall become due from time to time,
and any excess funds remaining from time to time after such application shall
be applied to the payment of interest on any other Securities as and when the
same shall become due.  Pending any such
application, the interest on such obligations shall be invested in Investment
Securities at the request of the Company evidenced by Company Order (such
Company Order to contain a representation to the effect that the Securities
designated therein constitute Investment Securities).  The principal of any such obligations shall
be applied solely to the payment of principal of the Securities to be paid or
redeemed or for the payment or redemption of which provision is to be made, as
specified in the aforesaid Company Order. 
Pending such application, the principal of such obligations shall be
invested in Eligible Obligations at the request of the Company evidenced by
Company Order (such Company Order to contain a representation to the effect
that the Securities designated therein constitute Eligible Obligations).  The obligation of the Company to pay the
principal of such Securities when the same shall become due at maturity, shall
be offset and reduced by the amount of the proceeds of such obligations then
held, and to be applied, by the Trustee in accordance with this paragraph.


 


SECTION 8.07 
Release of Property Taken by Eminent Domain, etc.


 


Should any of the
Mortgaged Property, or any interest therein, be taken by exercise of the power
of eminent domain or be sold to an entity possessing the power of eminent
domain under a threat to exercise the same, and should the Company elect not to
obtain the release of such property pursuant to other provisions of this
Article, the Trustee shall, upon request of the Company evidenced by a Company
Order transmitting therewith a form of instrument to effect such release,
release from the Lien hereof all its right, title and interest in and to the
property so taken or sold (or with respect to an interest in property,
subordinate the Lien hereof to such interest), upon receiving (a) an
Opinion of Counsel to the effect that such property has been taken by exercise
of the power of eminent domain or has been sold to an entity possessing the
power of eminent domain under threat of an exercise of such power, (b) an


 


72





















 


Officer’s
Certificate stating the amount of net proceeds received or to be received for
such property so taken or sold, and the amount so stated shall be deemed to be
the Fair Value of such property for the purpose of any notice to the Holders of
Securities, (c) if any portion of such property constitutes Funded
Property, an Expert’s Certificate stating the Cost thereof (or, if the Fair
Value to the Company of such portion of such property at the time the same
became Funded Property was certified to be an amount less than the Cost
thereof, then such Fair Value, as so certified, in lieu of Cost) and (d) if
any portion of such property constitutes Funded Property, a deposit by the
Company of an amount in cash equal to seventy percentum (70%) of the Cost or
Fair Value stated in the Expert’s Certificate delivered pursuant to
clause (c) above; provided, however, that the amount required to be
so deposited shall not exceed the portion of the net proceeds received or to be
received for such property so taken or sold which is allocable on a pro-rata or
other reasonable basis to the portion of such property constituting Funded
Property; and provided, further, that no such deposit shall be required to be
made hereunder if the proceeds of such taking or sale shall, as indicated in an
Officer’s Certificate delivered to the Trustee, have been deposited with the
trustee or other holder of a Lien prior to the Lien of this Indenture.  Any cash deposited with the Trustee under
this Section may thereafter be withdrawn, used or applied in the manner,
to the extent and for the purposes, and subject to the conditions, provided in
Section 8.06.


 


SECTION 8.08 
Disclaimer or Quitclaim.


 


In case the Company has
sold, exchanged, dedicated or otherwise disposed of, or has agreed or intends
to sell, exchange, dedicate or otherwise dispose of, or a Governmental
Authority has ordered the Company to divest itself of, any Excepted Property or
any other property not subject to the Lien hereof, or the Company desires to
disclaim or quitclaim title to property to which the Company does not purport
to have title, the Trustee shall, from time to time, disclaim or quitclaim such
property upon receipt by the Trustee of the following:


 


(a)                              a
Company Order requesting such disclaimer or quitclaim and transmitting
therewith a form of instrument to effect such disclaimer or quitclaim;


 


(b)                             an
Officer’s Certificate describing the property to be disclaimed or quitclaimed;
and


 


(c)                              an
Opinion of Counsel stating the signer’s opinion that such property is not
subject to the Lien hereof or required to be subject thereto by any of the
provisions hereof.


 


SECTION 8.09  Miscellaneous.


 


(a)                              The
Expert’s Certificate as to the Fair Value of property to be released from the
Lien of this Indenture in accordance with any provision of this Article, and as
to the nonimpairment, by reason of such release, of the security under this
Indenture in contravention of the provisions hereof, shall be made by an
Independent Expert if the Fair Value of such property and of all other property
released since the commencement of the then current calendar year, as set forth
in the certificates required by this Indenture, is ten percentum (10%) or more
of the aggregate principal amount of the Securities at the time Outstanding;
but such Expert’s Certificate shall not be required to be made by an
Independent Expert in the case of any release


 


73





















 


of property if the Fair
Value thereof, as set forth in the certificates required by this Indenture, is
less than Twenty-five Thousand Dollars ($25,000) or less than one percentum
(1%) of the aggregate principal amount of the Securities at the time
Outstanding.  To the extent that the Fair
Value of any property to be released from the Lien of this Indenture shall be
stated in an Independent Expert’s Certificate, such Fair Value shall not be
required to be stated in any other Expert’s Certificate delivered in connection
with such release.


 


(b)                             No
release of property from the Lien of this Indenture effected in accordance with
the provisions, and in compliance with the conditions, set forth in this
Article and in Sections 1.05 and 1.06 shall be deemed to impair the
security of this Indenture in contravention of any provision hereof.


 


(c)                              If
the Mortgaged Property shall be in the possession of a receiver or trustee,
lawfully appointed, the powers hereinbefore conferred upon the Company with
respect to the release of any part of the Mortgaged Property or any interest
therein or the withdrawal of cash may be exercised, with the approval of the
Trustee, by such receiver or trustee, notwithstanding that an Event of Default
may have occurred and be continuing, and any request, certificate, appointment
or approval made or signed by such receiver or trustee for such purposes shall
be as effective as if made by the Company or any of its officers or appointees
in the manner herein provided; and if the Trustee shall be in possession of the
Mortgaged Property under any provision of this Indenture, then such powers may
be exercised by the Trustee in its discretion notwithstanding that an Event of
Default may have occurred and be continuing.


 


(d)                             If
the Company shall retain any interest in any property released from the Lien of
this Indenture as provided in Section 8.03, 8.04 or 8.05, this Indenture
shall not become or be, or be required to become or be, a Lien upon such property
or such interest therein or any improvements, extensions or additions to such
property or renewals, replacements or substitutions of or for such property or
any part or parts thereof unless the Company shall execute and deliver to the
Trustee an indenture supplemental hereto, in recordable form, containing a
grant, conveyance, transfer and mortgage thereof.  As used in this subsection, the terms
“improvements”, “extensions” and “additions” shall be limited as set forth in
Section 13.01.


 


(e)                              Notwithstanding
the occurrence and continuance of an Event of Default, the Trustee, in its
discretion, may release from the Lien hereof any part of the Mortgaged Property
or permit the withdrawal of cash, upon compliance with the other conditions
specified in this Article in respect thereof.


 


(f)                                No
purchaser or grantee of property purporting to have been released hereunder
shall be bound to ascertain the authority of the Trustee to execute the
release, or to inquire as to any facts required by the provisions hereof for
the exercise of such authority; nor shall any purchaser or grantee of any
property or rights permitted by this Article to be sold, granted,
exchanged, dedicated or otherwise disposed of, be under obligation to ascertain
or inquire into the authority of the Company to make any such sale, grant,
exchange, dedication or other disposition.


 


74





















 


ARTICLE IX



SATISFACTION AND DISCHARGE


 


SECTION 9.01 
Satisfaction and Discharge of Securities.


 


Any Security or Securities,
or any portion of the principal amount thereof, shall be deemed to have been
paid for all purposes of this Indenture, and the entire indebtedness of the
Company in respect thereof shall be satisfied and discharged, if there shall
have been irrevocably deposited with the Trustee or any Paying Agent (other
than the Company), in trust:


 


(a)                              money
(including Funded Cash not otherwise applied pursuant to Section 8.06) in
an amount which shall be sufficient, or


 


(b)                             in
the case of a deposit made prior to the Maturity of such Securities or portions
thereof, Eligible Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of the issuer thereof,
the principal of and the interest on which when due, without any regard to
reinvestment thereof, will provide moneys which, together with the money, if
any, deposited with or held by the Trustee or such Paying Agent, shall be
sufficient, or


 


(c)                              a
combination of (a) or (b) which shall be sufficient,


 


to pay when due the
principal of and premium, if any, interest, if any and any other amounts, if
any, due and to become due on such Securities or portions thereof; provided,
however, that in the case of the provision for payment or redemption of less
than all the Securities of any series or Tranche, such Securities or portions
thereof shall have been selected by the Security Registrar as provided herein
and, in the case of a redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority shall have been given
by the Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the Company shall have
delivered to the Trustee and such Paying Agent:


 


(x)                                   if
such deposit shall have been made prior to the Maturity of such Securities, a
Company Order stating that the money and Eligible Obligations deposited in
accordance with this Section shall be held in trust, as provided in
Section 9.03;


 


(y)                                 if
Eligible Obligations shall have been deposited, an Opinion of Counsel to the
effect that such obligations constitute Eligible Obligations and do not contain
provisions permitting the redemption or other prepayment thereof at the option
of the issuer thereof, and an opinion of an Independent public Accountant of
nationally recognized standing, selected by the Company, to the effect that the
other requirements set forth in clause (b) above have been satisfied;
and


 


(z)                                   if
such deposit shall have been made prior to the Maturity of such Securities, an
Officer’s Certificate stating the Company’s intention that, upon delivery of
such Officer’s Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as contemplated in this
Section.


 


75





















 


Upon the deposit of money
or Eligible Obligations, or both, in accordance with this Section, together
with the documents required by clauses (x), (y) and (z) above, the Trustee
shall, upon Company Request, acknowledge in writing that such Securities or
portions thereof are deemed to have been paid for all purposes of this
Indenture and that the entire indebtedness of the Company in respect thereof
has been satisfied and discharged as contemplated in this Section.  In the event that all of the conditions set
forth in the preceding paragraph shall have been satisfied in respect of any
Securities or portions thereof except that, for any reason, the Officer’s
Certificate specified in clause (z) (if otherwise required) shall not have
been delivered, such Securities or portions thereof shall nevertheless be
deemed to have been paid for all purposes of this Indenture, and the Holders of
such Securities or portions thereof shall nevertheless be no longer entitled to
the benefit of the Lien of this Indenture or of any of the covenants of the
Company under Article VI (except the covenants contained in
Sections 6.01(a) 6.02 and 6.03) or any other covenants made in
respect of such Securities or portions thereof as contemplated by
Section 3.01, but the indebtedness of the Company in respect of such
Securities or portions thereof shall not be deemed to have been satisfied and
discharged prior to Maturity for any other purpose; and, upon Company Request,
the Trustee shall acknowledge in writing that such Securities or portions
thereof are deemed to have been paid for all purposes of this Indenture.


 


If payment at Stated
Maturity of less than all of the Securities of any series, or any Tranche
thereof, is to be provided for in the manner and with the effect provided in
this Section, the Security Registrar shall select such Securities, or portions
of principal amount thereof, in the manner specified by Section 5.03 for
selection for redemption of less than all the Securities of a series or
Tranche.


 


In the event that
Securities which shall be deemed to have been paid for purposes of this
Indenture, and, if such is the case, in respect of which the Company’s
indebtedness shall have been satisfied and discharged, all as provided in this
Section, do not mature and are not to be redeemed within the sixty (60) day
period commencing with the date of the deposit of moneys or Eligible
Obligations, as aforesaid, the Company shall, as promptly as practicable, give
a notice, in the same manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the effect that such deposit
has been made and the effect thereof.


 


Notwithstanding that any
Securities shall be deemed to have been paid for purposes of this Indenture, as
aforesaid, the obligations of the Company and the Trustee in respect of such
Securities under Sections 3.04, 3.05, 3.06, 5.04, 6.01(a), 6.02, 6.03, 11.07
and 11.15 and this Article shall survive.


 


The Company shall pay,
and shall indemnify the Trustee or any Paying Agent with which Eligible
Obligations shall have been deposited as provided in this Section against,
any tax, fee or other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of such Eligible
Obligations, including, but not limited to, any such tax payable by any entity
deemed, for tax purposes, to have been created as a result of such deposit.


 


Anything herein to the
contrary notwithstanding, (a) if, at any time after a Security would be
deemed to have been paid for purposes of this Indenture, and, if such is the


 


76





















 


case, the
Company’s indebtedness in respect thereof would be deemed to have been
satisfied and discharged, pursuant to this Section (without regard to the
provisions of this paragraph), the Trustee or any Paying Agent, as the case may
be, shall be required to return the money or Eligible Obligations, or
combination thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy, insolvency or
other similar law, such Security shall thereupon be deemed retroactively not to
have been paid and any satisfaction and discharge of the Company’s indebtedness
in respect thereof shall retroactively be deemed not to have been effected, and
such Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company’s indebtedness in respect of any
Security shall be subject to the provisions of the last paragraph of
Section 6.03.


 


SECTION 9.02 
Satisfaction and Discharge of Indenture.


 


This Indenture shall upon
Company Request cease to be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the Company, shall execute such
instruments as the Company shall reasonably request to evidence and acknowledge
the satisfaction and discharge of this Indenture, when:


 


(a)                              no
Securities remain Outstanding hereunder; and


 


(b)                             the
Company has paid or caused to be paid all other sums payable hereunder by the
Company;


 


provided, however, that
if, in accordance with the last paragraph of Section 9.01, any Security,
previously deemed to have been paid for purposes of this Indenture, shall be
deemed retroactively not to have been so paid, this Indenture shall thereupon
be deemed retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall reasonably request to
evidence and acknowledge the same.


 


Notwithstanding the
satisfaction and discharge of this Indenture as aforesaid, the obligations of
the Company and the Trustee under Sections 3.04, 3.05, 3.06, 5.04,
6.01(a), 6.02, 6.03, 11.07 and 11.15 and this Article shall survive.


 


Upon satisfaction and
discharge of this Indenture as provided in this Section, the Trustee shall
release, quit claim and otherwise turn over to the Company the Mortgaged
Property (other than money and Eligible Obligations held by the Trustee
pursuant to Section 9.03) and shall execute and deliver to the Company
such deeds and other instruments as, in the judgment of the Company, shall be
necessary, desirable or appropriate to effect or evidence such release and
quitclaim and the satisfaction and discharge of this Indenture.


 


SECTION 9.03 
Application of Trust Money.


 


Neither the Eligible
Obligations nor the money deposited pursuant to Section 9.01, nor the
principal or interest payments on any such Eligible Obligations, shall be
withdrawn or used for any purpose other than, and shall be held in trust for,
the payment of the principal of and premium, if any, interest, if any, and any
other amounts due, if any, on the Securities or portions of principal amount thereof
in respect of which such deposit was made, all


 


77





















 


subject, however,
to the provisions of Section 6.03; provided, however, that any cash
received from such principal or interest payments on such Eligible Obligations,
if not then needed for such purpose, shall, to the extent practicable and upon
Company Request and delivery to the Trustee of the documents referred to in
clause (y) in the first paragraph of Section 9.01, be invested in
Eligible Obligations of the type described in clause (b) in the first
paragraph of Section 9.01 as shall be specified in such Company Request
maturing at such times and in such amounts as shall be sufficient, together
with any other moneys and the proceeds of any other Eligible Obligations then
held by the Trustee, to pay when due the principal of and premium, if any, and
interest, if any, and any such other amounts, due and to become due on such
Securities or portions thereof on and prior to the Maturity thereof, and interest
earned from such reinvestment shall be paid over to the Company as received,
free and clear of the Lien of this Indenture, except the Lien provided by
Section 11.07; and provided, further, that any moneys held in accordance
with this Section on the Maturity of all such Securities in excess of the
amount required to pay the principal of and premium, if any, and interest, if
any, and any such other amounts then due on such Securities shall, upon Company
Request,  be paid over to the Company
free and clear of the Lien of this Indenture, except the Lien provided by
Section 11.07; and provided, further, that if an Event of Default shall
have occurred and be continuing, moneys to be paid over to the Company pursuant
to this Section shall be held as part of the Mortgaged Property until such
Event of Default shall have been waived or cured.


 


SECTION 9.04  Company’s Right with Respect to Defeasance.


 


(a)  The Company
will have the right, at any time, to have subsection (b) or
(c) below applied to any Securities or any series of Securities, as the
case may be (other than Securities of a series designated pursuant to
Section 3.01 as not being defeasible pursuant to such
Section 9.04(b) or (c) hereof, as the case may be), upon
compliance with the conditions set forth below in this Section 9.04. Any
such request shall be evidenced by a Company Order or in another manner
specified as contemplated by Section 3.01 for such Securities.


 


(b)  Upon the
Company’s exercise of its right to have this subsection (b) 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 subsection (d) below 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 subsection (d) below
and as more fully set forth in such subsection (d), (i) payments in
respect of the principal of and any premium and interest on the Outstanding
Securities on the Stated Maturity of such principal or installment of principal
of and any 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 3.04, 3.05, 3.06, 5.04, 6.01(a), 6.02, 6.03, 11.07
and 11.15, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (d)


 


78





















 


this
Section 9.04. Subject to compliance with this Section 9.04, the
Company may exercise its option to have this subsection (b) applied
to any Securities notwithstanding the prior exercise of its option to have
subsection (c) below applied to such Securities.


 


(c)  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) Holders of
such Securities or portions thereof shall nevertheless be no longer entitled to
the benefit of the Lien of this Indenture or of any of the covenants of the
Company under Article VI (except the covenants contained in Sections 6.02
and 6.03) or any other covenants made in respect of such Securities or portions
thereof as contemplated by Section 3.01, in each case with respect to such
Securities as provided in this Section on and after the date the conditions
set forth in subsection (d) below 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 10.01(c)), 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.


 


(d)  The following
shall be the conditions to the application of subsection (b) or
(c) to any Securities or any series of Securities, as the case may be:


 


(i)                                                             The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee 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) cash in an amount, or
(2) Eligible 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, cash 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 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 the 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.


 


(ii)                                                          In
the event of an election to have subsection (b) 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 instrument, 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 manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.


 


79





















 


(iii)                                                       In
the event of an election to have subsection (c) 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.


 


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


 


(v)                                                         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 10.01(d) and (e), 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 Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such
Defeasance or Covenant Defeasance have been complied with.


 


(e)  Subject to the
provisions of Section 6.03, all cash and Eligible Obligations (including
the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this subsection (e) and
subsection (f) below, the Trustee and any such other trustee are
referred to collectively as the “Trustee”) pursuant to
subsection (d) 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 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 Eligible Obligations if the
Company so instructs pursuant to a Company Order.


 


80





















 


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 subsection (d) 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, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Eligible Obligations held by it as
provided in Subsection (d) 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.


 


(f)  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
subsection (b) or (c) 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 subsection (e) with respect
to such Securities in accordance with this Section 9.04; 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 X



Events of Default; Remedies


 


SECTION 10.01  Events of Default.


 


“Event of
Default”, wherever used herein with respect to the
Securities, means any of the following events which shall have occurred and be
continuing:


 


(a)                              failure
to pay interest, if any, on any Security within thirty (30) days after the same
becomes due and payable; or


 


(b)                             failure
to pay the principal of or premium, if any, on any Security; or


 


(c)                              failure
to perform or breach of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a default in the performance of
which or breach of which is elsewhere in this Section specifically dealt
with) for a period of sixty (60) 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 twenty-five percentum (25%) in
principal amount of the Securities then Outstanding, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default”


 


81





















 


hereunder, unless the
Trustee, or the Trustee and the Holders of a principal amount of Securities not
less than the principal amount of Securities the Holders of which gave such
notice, as the case may be, shall agree in writing to an extension of such
period prior to its expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of Securities, as the case may
be, shall be deemed to have agreed to an extension of such period if corrective
action is initiated by the Company within such period and is being diligently
pursued; or


 


(d)                             the
entry by a court having jurisdiction in the premises of (i) 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 (ii) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition by one or more
Persons other than the Company 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 for the Company or for any substantial
part of its property, or ordering the winding up or liquidation of its affairs,
and any such decree or order for relief or any such other decree or order shall
have remained unstayed and in effect for a period of ninety (90) consecutive
days; or


 


(e)                              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 a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in a 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 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 inability to pay its debts generally as they become due,
or the authorization of such action by the Board of Directors.


 


SECTION 10.02 
Acceleration of Maturity; Rescission and Annulment.


 


If an Event of Default
shall have occurred and be continuing, then in every such case the Trustee or
the Holders of not less than twenty-five percentum (25%) in principal amount of
the Securities then Outstanding may declare the principal amount (or, if any of
the Securities are Discount Securities, such portion of the principal amount of
such Securities as may be specified in the terms thereof as contemplated by
Section 3.01) of all Securities then Outstanding to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon such declaration such principal amount (or specified
amount), together with premium, if any, and accrued interest, if any, thereon,
shall become immediately due and payable.


 


At any time after such a
declaration of acceleration of the maturity of the Securities then Outstanding
shall have been made, but before any sale of any of the Mortgaged


 


82





















 


Property has been
made and before a judgment or decree for payment of the money due shall have
been obtained by the Trustee as provided in this Article, the Event or Events
of Default giving rise to such declaration of acceleration shall, without
further act, be deemed to have been cured, and such declaration and its
consequences shall, without further act, be deemed to have been rescinded and
annulled, if


 


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


 


(i)                                     all
overdue interest, if any, on all Securities then Outstanding (including
interest on overdue interest, if any);


 


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


 


(iii)                               all
amounts due to the Trustee under Section 11.07;


 


and


 


(b)                             any
other Event or Events of Default, other than the non-payment of the principal
of Securities which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in
Section 10.17.


 


No such rescission shall
affect any subsequent Event of Default or impair any right consequent thereon.


 


SECTION 10.03 
Entry upon Mortgaged Property.


 


If an Event of Default
shall have occurred and be continuing, the Company, upon demand of the Trustee
and if and to the extent permitted by law, shall forthwith surrender to the
Trustee the actual possession of, and the Trustee, by such officers or agents
as it may appoint, may enter upon and take possession of, the Mortgaged
Property; and the Trustee may hold, operate and manage the Mortgaged Property
and make all needful repairs and such renewals, replacements, betterments and
improvements as to the Trustee shall seem prudent; and the Trustee may receive
the rents, issues, profits, revenues and other income of the Mortgaged
Property, to the extent, if any, that the same shall not then constitute
Excepted Property; and, after deducting the costs and expenses of entering,
taking possession, holding, operating and managing the Mortgaged Property, as
well as payments for insurance and taxes and other proper charges upon the
Mortgaged Property prior to the Lien of this Indenture and reasonable
compensation to itself, its agents and counsel, the Trustee may apply the same
as provided in Section 10.07. 
Whenever all that is then due in respect of the principal of and
premium, if any, and interest, if any, on the Securities and under any of the
terms of this Indenture shall have been paid and all defaults hereunder shall
have been cured or shall have been waived as provided in Section 10.17,
the Trustee shall surrender possession of the Mortgaged Property to the
Company.


 


83





















 


SECTION 10.04 
Power of Sale; Suits for Enforcement.


 


If an Event of Default
shall have occurred and be continuing, the Trustee, by such officers or agents
as it shall appoint, with or without entry, in its discretion may, subject to
the provisions of Section 10.16 and if and to the extent permitted by law:


 


(a)                              sell,
subject to any mandatory requirements of applicable law, the Mortgaged Property
as an entirety, or in such parcels as the Holders of a majority in principal
amount of the Securities then Outstanding shall in writing request, or in the
absence of such request, as the Trustee may determine, to the highest bidder at
public auction at such place and at such time (which sale may be adjourned by
the Trustee from time to time in its discretion by announcement at the time and
place fixed for such sale, without further notice) and upon such terms as the
Trustee may fix and briefly specify in a notice of sale to be published once in
each week for four successive weeks prior to such sale in an Authorized
Publication in each Place of Payment for the Securities of each series; or


 


(b)                             proceed
to protect and enforce its rights and the rights of the Holders of Securities
under this Indenture by sale pursuant to judicial proceedings or by a suit,
action or proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Indenture or in aid
of the execution of any power granted in this Indenture or for the foreclosure
of this Indenture or for the enforcement of any other legal, equitable or other
remedy, as the Trustee, being advised by counsel, shall deem most effectual to
protect and enforce any of the rights of the Trustee or the Holders of
Securities.


 


SECTION 10.05  Incidents of Sale.


 


Upon any sale of any of
the Mortgaged Property, whether made under the power of sale hereby given or
pursuant to judicial proceedings, to the extent permitted by law:


 


(a)                              the
principal amount (or, if any of the Securities are Discount Securities, such
portion of the principal amount of such Securities as may be specified in the
terms thereof as contemplated by Section 3.01) of all Outstanding
Securities, if not previously due, shall at once become and be immediately due
and payable, together with premium, if any, and accrued interest, if any,
thereon;


 


(b)                             any
Holder or Holders of Securities or the Trustee may bid for and purchase the
property offered for sale, and upon compliance with the terms of sale may hold,
retain and possess and dispose of such property, without further
accountability, and may, in paying the purchase money therefor, deliver any
Outstanding Securities or claims for interest thereon in lieu of cash to the
amount which shall, upon distribution of the net proceeds of such sale, be
payable thereon, and such Securities, in case the amounts so payable thereon
shall be less than the amount due thereon, shall be returned to the Holders
thereof after being appropriately stamped to show partial payment;


 


(c)                              the
Trustee may make and deliver to the purchaser or purchasers a good and
sufficient deed, bill of sale and instrument of assignment and transfer of the
property sold;


 


84





















 


(d)                             the
Trustee is hereby irrevocably appointed the true and lawful attorney of the
Company, in its name and stead, to make all necessary deeds, bills of sale and
instruments of assignment and transfer of the property so sold; and for that
purpose it may execute all necessary deeds, bills of sale and instruments of
assignment and transfer, and may substitute one or more persons, firms or
corporations with like power, the Company hereby ratifying and confirming all
that its said attorney or such substitute or substitutes shall lawfully do by
virtue hereof; but, if so requested by the Trustee or by any purchaser, the
Company shall ratify and confirm any such sale or transfer by executing and
delivering to the Trustee or to such purchaser or purchasers all proper deeds, bills
of sale, instruments of assignment and transfer and releases as may be
designated in any such request;


 


(e)                              all
right, title, interest, claim and demand whatsoever, either at law or in equity
or otherwise, of the Company of, in and to the property so sold shall be
divested and such sale shall be a perpetual bar both at law and in equity
against the Company, its successors and assigns, and against any and all
persons claiming or who may claim the property sold or any part thereof from,
through or under the Company; and


 


(f)                                the
receipt of the Trustee or of the officer making such sale shall be a sufficient
discharge to the purchaser or purchasers at such sale for his or their purchase
money and such purchaser or purchasers and his or their assigns or personal
representatives shall not, after paying such purchase money and receiving such
receipt, be obliged to see to the application of such purchase money, or be in
anywise answerable for any loss, misapplication or non-application thereof.


 


SECTION 10.06  Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


If an Event of Default
described in clause (a) or (b) of Section 10.01 shall have
occurred and be continuing, the Company shall, upon demand of the Trustee, pay
to it, for the benefit of the Holders of the Securities with respect to which
such Event of Default shall have occurred, the whole amount then due and
payable on such Securities for principal and premium, if any, and interest, if
any, and, in addition thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 11.07.


 


If the Company shall fail
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 such 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 such Securities, wherever situated.


 


The Trustee shall, to the
extent permitted by law, be entitled to sue and recover judgment as aforesaid
either before, during or after the pendency of any proceedings for the
enforcement of the Lien of this Indenture, and in case of a sale of the
Mortgaged Property or any part thereof and the application of the proceeds of
sale as aforesaid, the Trustee, in its own name and as trustee of an express
trust, shall be entitled to enforce payment of, and to receive, all amounts
then remaining due and unpaid upon the Securities then Outstanding for
principal,


 


85





















 


premium, if any,
and interest, if any, for the benefit of the Holders thereof, and shall be
entitled to recover judgment for any portion of the same remaining unpaid, with
interest as aforesaid.  No recovery of
any such judgment by the Trustee and no levy of any execution upon any such judgment
upon any of the Mortgaged Property or any other property of the Company shall
affect or impair the Lien of this Indenture upon the Mortgaged Property or any
part thereof or any rights, powers or remedies of the Trustee hereunder, or any
rights, powers or remedies of the Holders of the Securities.


 


SECTION 10.07 
Application of Money Collected.


 


Any money or other
property collected by the Trustee pursuant to this Article, and any other money
or property distributable in respect of the Company’s obligations under this
Indenture after an Event of Default, including any rents, issues, profits,
revenues and other income collected pursuant to Section 10.03 (after the
deductions therein provided) and any proceeds of any sale (after deducting the
costs and expenses of such sale, including a reasonable compensation to the
Trustee, its agents and counsel, and any taxes, assessments or Liens prior to
the Lien of this Indenture, except any thereof subject to which such sale shall
have been made), whether made under any power of sale herein granted or
pursuant to judicial proceedings, and any money collected by the Trustee under
Section 8.06, together with, in the case of an entry or sale or as
otherwise provided herein, any other sums then held by the Trustee as part of
the Mortgaged Property, and any other money or property distributable in
respect of the Company’s obligation under this Indenture after an Event of
Default shall be applied in the following order, to the extent permitted by
law, at the date or dates fixed by the Trustee and, in case of the distribution
of such money or property on account of principal or premium, if any, or
interest, if any, upon presentation of the Securities 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 11.07;


 


Second:  To the payment of the whole amount then due
and unpaid upon the Outstanding Securities for principal and premium, if any,
and interest, if any, in respect of which or for the benefit of which such
money has been collected; and in case such proceeds shall be insufficient to
pay in full the whole amount so due and unpaid upon such Securities, then to
the payment of such principal and interest, if any, thereon without any
preference or priority, ratably according to the aggregate amount so due and
unpaid, with any balance then remaining to the payment of premium, if any, and,
if so specified as contemplated by Section 3.01 with respect to the
Securities of any series, or any Tranche thereof, interest, if any, on overdue
premium, if any, and overdue interest, if any, ratably as aforesaid, all to the
extent permitted by applicable law; provided, however, that any money collected
by the Trustee pursuant to Section 8.06 in respect of interest or pursuant
to Section 10.03 shall first be applied to the payment of interest accrued
on the principal of Outstanding Securities; and


 


Third:  To the payment of the remainder, if any, to
the Company or to whomsoever may be lawfully entitled to receive the same or as
a court of competent jurisdiction may direct.


 


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


 


86





















 


SECTION 10.08  Receiver.


 


If an Event of Default
shall have occurred and, during the continuance thereof, the Trustee shall have
commenced judicial proceedings to enforce any right under this Indenture, the
Trustee shall, to the extent permitted by law, be entitled, as against the
Company, without notice or demand and without regard to the adequacy of the
security for the Securities or the solvency of the Company, to the appointment
of a receiver of the Mortgaged Property.


 


SECTION 10.09 
Trustee May File Proofs of Claim.


 


In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
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 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 proceeding or otherwise,


 


(a)                              to
file and prove a claim for the whole amount of principal, premium, if any, and
interest, if any, owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for amounts due to the
Trustee under Section 11.07) 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 payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee
any amounts due it under Section 11.07.


 


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.


 


SECTION 10.10 
Trustee May Enforce Claims without Possession of Securities.


 


All rights of action and
claims under this Indenture or on the Securities may be prosecuted and enforced
by the Trustee without the possession of any of the Securities 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 agents and counsel, be for the ratable benefit of the Holders
in respect of which such judgment has been recovered.


 


87





















 


SECTION 10.11 
Limitation on Suits.


 


No Holder 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 shall have previously given written notice to the Trustee of a
continuing Event of Default;


 


(b)                             the
Holders of not less than a majority in aggregate principal amount of the
Securities then Outstanding 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 shall have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;


 


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


 


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


 


it being understood and
intended that no one or more of such Holders 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 Lien of this Indenture or the rights of any
other of such Holders or to obtain or to seek to obtain priority or preference
over any other of 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 of such Holders.


 


SECTION 10.12 
Unconditional Right of Holders to Receive Principal, Premium and
Interest.


 


Notwithstanding any other
provision 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 Section 3.07) interest, if any, on such
Security on the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.


 


SECTION 10.13 
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 shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and such Holder shall be restored
severally and respectively to their former positions hereunder and


 


88





















 


thereafter all
rights and remedies of the Trustee and such Holder shall continue as though no
such proceeding had been instituted.


 


SECTION 10.14 
Rights and Remedies Cumulative.


 


Except as otherwise
provided in the last paragraph of Section 3.06, 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.


 


Anything in this
Article to the contrary notwithstanding, the availability of the remedies
set forth herein (on an individual or cumulative basis) and the procedures set
forth herein relating to the exercise thereof shall be subject to (a) the
law (including, for purposes of this paragraph, general principles of equity)
of any jurisdiction wherein the Mortgaged Property or any part thereof is
located to the extent that such law is mandatorily applicable and (b) the
rights of the holder of any Lien prior to the Lien of this Indenture, and, if and
to the extent that any provision of this Article conflicts with any
provision of such applicable law and/or with the rights of the holder of any
such prior Lien, such provision of law and/or the rights of such holder shall
control.


 


SECTION 10.15 
Delay or Omission Not Waiver.


 


No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein.  Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.


 


SECTION 10.16 
Control by Holders of Securities.


 


The Holders of a majority
in principal amount of the Securities then Outstanding 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; provided, however, that


 


(a)                              such
direction shall not be in conflict with any rule of law or with this
Indenture, or could not involve the Trustee in personal liability in
circumstances where indemnity would not, in the Trustee’s sole discretion, be
adequate, and


 


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


 


89





















 


SECTION 10.17 
Waiver of Past Defaults.


 


Before any sale of any of
the Mortgaged Property and before a judgment or decree for payment of the money
due shall have been obtained by the Trustee as in this Article provided,
the Holders of not less than a majority in principal amount of the Securities
then Outstanding may on behalf of the Holders of all the Securities then
Outstanding waive any past default hereunder and its consequences, except a
default


 


in the payment of the principal of or premium, if any,
or interest, if any, on any Security Outstanding, or


 


in respect of a covenant or provision hereof which
under Section 14.02 cannot be modified or amended without the consent of
the Holder of each Outstanding Security of any series or Tranche affected.


 


Upon any such waiver,
such default shall cease to exist, and any and all Events 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 10.18  Undertaking
for Costs.


 


The Company and the
Trustee agree, and each Holder of Securities by its 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; but the provisions of this Section shall not
apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than ten percentum (10%) in aggregate principal amount of
the Securities then Outstanding, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).


 


SECTION 10.19 
Waiver of Appraisement and Other Laws.


 


To the full extent that
it may lawfully so agree, the Company shall not at any time set up, claim or
otherwise seek to take the benefit or advantage of any appraisement, valuation,
stay, extension or redemption law, now or hereafter in effect, in order to
prevent or hinder the enforcement of this Indenture or the absolute sale of the
Mortgaged Property, or any part thereof, or the possession thereof, or any part
thereof, by any purchaser at any sale under this Article; and the Company, for
itself and all who may claim under it, so far as it or they now or hereafter
may lawfully do so, hereby waives the benefit of all such laws.  The Company, for itself and all who may claim
under it, waives, to the extent that it may lawfully do so, all right to have
the Mortgaged Property marshalled upon any foreclosure of the Lien hereof, and
agrees that any


 


90





















 


court having
jurisdiction to foreclose the Lien of this Indenture may order the sale of the
Mortgaged Property as an entirety.


 


ARTICLE XI



The Trustee


 


SECTION 11.01  Certain Duties and Responsibilities.


 


(a)                              Except
during the continuance of an Event of Default,


 


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


 


(2)                                  in the absence of bad
faith on its part, the Trustee may 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 provisions 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 stated therein).


 


(b)                             In
case an Event of Default shall have occurred and be continuing, the Trustee
shall exercise 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:


 


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


 


(2)                                  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


 


(3)                                  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 principal amount of the Outstanding Securities, as provided herein,
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.


 


(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


 


91





















 


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.


 


SECTION 11.02 
Notice of Defaults.


 


The Trustee shall give
the Holders notice of any default hereunder in the manner and to the extent
required to do so by the Trust Indenture Act (whether or not the Trust
Indenture Act is applicable to this Indenture), 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 on any
Security or in the payment of any sinking or purchase fund installment, if any,
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; and provided, further, that
in the case of any default of the character specified in Section 10.01(c),
no such notice to Holders shall be given until at least thirty (30) days after
the occurrence thereof.  For the purpose
of this Section, the term “default”
means any event which is, or after notice or lapse of time, or both, would
become, an Event of Default.


 


SECTION 11.03 
Certain Rights of Trustee.


 


Subject to the provisions
of Section 11.01:


 


(a)                                  The
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, 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, or as otherwise expressly
provided herein, 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 is specifically prescribed
herein) may, in the absence of bad faith on its part, conclusively rely upon an
Officer’s 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;


 


92





















 


(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 Holder
pursuant to this Indenture, unless such Holder shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;


 


(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
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 (subject to applicable legal
requirements) be entitled to examine, during normal business hours, 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 charged with knowledge of any default (as defined in
Section 11.02) 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 1.08 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;


 


(i)                                 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;


 


(j)                                 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;


 


(k)                                  The
permissive right of the Trustee to take any action under this Indenture shall
not be construed as a duty; and


 


(l)                                 The
Trustee shall not be personally liable, in case of entry by it upon the
Mortgaged Property, for debts contracted or liabilities or damages incurred in
the management or operation of the Mortgaged Property.


 


93





















 


SECTION 11.04  Not
Responsible for Recitals or Issuance of Securities or Application of Proceeds.


 


The recitals and other
representations and warranties of the Company contained herein and in the
Securities (except the Trustee’s certificate of authentication on the
Securities) shall be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness.  The Trustee makes no
representations as to the value or condition of the Mortgaged Property or any
part thereof, or as to the title of the Company thereto or as to the security
afforded thereby or hereby, or as to the validity or genuineness of any
securities at any time pledged and deposited with the Trustee hereunder, or as
to the validity or sufficiency of this Indenture or of the Securities or as to
the validity, attachment, perfection, priority or enforceability of the Liens
in any of the Mortgaged Property created or intended to be created by this
Indenture.  The Trustee shall not be
accountable for the use or application by the Company of the Securities or the
proceeds thereof or of any money paid to the Company or upon Company Order
under any provision hereof.  The Trustee
shall have no responsibility to make or to see to the making of any recording,
filing or registration of any instrument or notice (including any financing or
continuation statement or any tax or securities form) (or any rerecording,
refiling or reregistration of any thereof); at any time in any public office or
elsewhere for the purpose of perfecting, maintaining the perfection of or
otherwise making effective the Lien of this Indenture or for any other purpose
and shall have no responsibility for seeing to the insurance on the Mortgaged
Property or for paying any taxes, changes or assessments on or relating to the
Mortgaged Property or for otherwise maintaining the Mortgaged Property,
including, but not limited to, compliance with Environmental Laws (as defined
in Section 6.11), the investigation or remediation of Hazardous Materials
(as define in Section 6.11), or any other environmental matter affecting
the Company or the Mortgaged Property or any part thereof, it being understood
that none of the foregoing shall be construed as permitting the Trustee to
engage in negligence or willful misconduct with respect to the Mortgaged
Property.


 


SECTION 11.05 
May Hold Securities.


 


Each of the Trustee, any
Authenticating Agent, any Paying Agent, any 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 11.08
and 11.13, may otherwise deal with the Company with the same rights it would
have if it were not such Trustee, Authenticating Agent, Paying Agent, Security
Registrar or other agent.


 


SECTION 11.06 
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 investment of any money received
by it hereunder except as expressly provided herein or otherwise agreed with,
and for the sole benefit of, the Company.


 


94





















 


SECTION 11.07 
Compensation and Reimbursement.


 


The Company shall


 


(a)                              pay
to the Trustee from time to time such reasonable compensation as the Company
and the Trustee shall from time to time agree 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, reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except to the extent that any such expense, disbursement or advance
may be attributable to its negligence, bad faith or willful misconduct;


 


(c)                              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
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 coorporate 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 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.


 


(d)           To the extent resulting from or in
connection with the execution, delivery, enforcement, performance, or
administration of this Indenture, and except to the extent arising from the
gross negligence, willful misconduct, or bad faith of the Trustee, the Company
shall defend, indemnify, and hold harmless each Indemnified Party from and
against any claims,


 


95





















 


demands,
penalties, fines, liabilities, settlements, damages, costs, or expenses of
whatever kind or nature, known or unknown, contingent or otherwise, arising out
of, or in any way related to, (w) the presence, disposal, release, or
threatened release of any Hazardous Materials which are on, from, or affecting
soil, water, vegetation, buildings, personal property, persons, animals, or
otherwise; (x) any personal injury (including wrongful death), property damage
(real or personal) or natural resource damage arising out of or related to such
Hazardous Materials; (y) any third party claim brought or threatened, settlement
reached, or government order, or any policies or requirements of the Trustee,
which are based upon or in any way related to such Hazardous Materials
including, without limitation, attorney and consultant fees and expenses,
investigation and laboratory fees, court costs, and litigation expenses, and
(z) any violations of Environmental Laws.


 


As security for the
performance of the obligations of the Company under this Section, the Trustee
shall have a Lien secured by this Indenture prior to the Securities upon the
Mortgaged Property and upon all other property and funds held or collected by
the Trustee as such, other than property and funds held in trust under
Section 9.03 (except moneys payable to the Company as provided in
Section 9.03) and for the payment of such compensation, expenses,
disbursements, advances and indemnity, the Trustee shall have the right to use
and apply any Funded Cash held by it under any provision of this Indenture.


 


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 10.01(d) or
Section 10.01(e), 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.


 


“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,
bad faith or willful misconduct of any Trustee hereunder shall not affect the rights
of any other Trustee hereunder.


 


The obligations of the
Company under this Section 11.07 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, together with the Lien provided for in this
Section 11.07, shall survive the satisfaction and discharge of this
Indenture, the termination of this Indenture and the resignation or removal of
the Trustee.


 


SECTION 11.08 
Disqualification; Conflicting Interests.


 


If the Trustee shall have
or acquire any conflicting interest within the meaning of the Trust Indenture
Act, it shall either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the conditions,
provided in the Trust Indenture Act, to the extent it is applicable, and this
Indenture.  For purposes of
Section 310(b)(1) of the Trust Indenture Act and to the extent
permitted thereby, the Trustee, in its capacity as trustee in respect of the
Securities of any series, shall not be deemed to have a conflicting interest
arising


 


96





















 


from its capacity
as trustee in respect of the Securities of any other series.  Nothing herein 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 should this
Indenture become qualified and subject to the Trust Indenture Act.


 


SECTION 11.09 
Corporate Trustee Required; Eligibility.


 


There shall at all times
be a Trustee hereunder which shall be


 


(A)                          a
corporation organized and doing business under the laws of the United States,
any State or Territory thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least Fifty Million Dollars ($50,000,000) and subject to
supervision or examination by Federal or State authority, or


 


(B)                            if
and to the extent permitted by the Commission by rule, regulation or order upon
application, a corporation or other Person organized and doing business under
the laws of a foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
Fifty Million Dollars ($50,000,000) or the Dollar equivalent of the
applicable foreign currency and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United States
institutional trustees,


 


and, in either case,
qualified and eligible under this Article and the Trust Indenture Act to
the extent it is applicable.  If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of such supervising or examining authority, then for the
purposes of this Section, 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 the Trustee shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.


 


SECTION 11.10 
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 in accordance with the applicable
requirements of Section 11.11.


 


(b)                             The
Trustee may resign at any time by giving written notice thereof to the
Company.  If the instrument of acceptance
by a successor Trustee required by Section 11.11 shall not have been
delivered to the Trustee within thirty (30) days after the giving of such
notice of resignation or a notice of removal of the Trustee pursuant ot this
Section 11.10 the resigning or removed Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


(c)                              The
Trustee may be removed at any time by Act of the Holders of a majority in
principal amount of the Securities then Outstanding delivered to the Trustee
and to the Company.


 


97





















 


(d)                             If
at any time:


 


(i)                                     the
Trustee shall fail to comply with Section 11.08 after written request
therefor by the Company or by any Holder who has been a bona fide Holder for at
least six months, or


 


(ii)                                  the
Trustee shall cease to be eligible under Section 11.09 and shall fail to
resign after written request therefor by the Company or by any such Holder, or


 


(iii)                               the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,


 


then, in any such case, (x) the
Company by a Board Resolution may remove the Trustee or (y) subject to
Section 10.18, any Holder who has been a bona fide Holder for at least six
(6) months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee or Trustees.


 


(e)                              If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause (other than as
contemplated in clause (y) in subsection (d) of this Section),
the Company, by a Board Resolution, shall take prompt steps to appoint a
successor Trustee or Trustees and shall comply with the applicable requirements
of Section 11.11.  If, within
one (1) year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Securities then
Outstanding delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 11.11, become
the successor Trustee and to that extent supersede the successor Trustee appointed
by the Company.  If no successor Trustee
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 11.11, any Holder who has
been a bona fide Holder of a Security for at least six (6) months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


(f)                                So
long as no event which is, or after notice or lapse of time, or both, would
become, an Event of Default shall have occurred and be continuing, if the
Company shall have delivered to the Trustee (i) a Board Resolution
appointing a successor Trustee, effective as of a date specified therein, and
(ii) an instrument of acceptance of such appointment, effective as of such
date, by such successor Trustee in accordance with Section 11.11, the
Trustee shall be deemed to have resigned as contemplated in
subsection (b) of this Section, the successor Trustee shall be deemed
to have been appointed pursuant to subsection (e) of this
Section and such appointment shall be deemed to have been accepted as
contemplated in Section 11.11, all as of such date, and all other
provisions of this Section and Section 11.11 shall be applicable to
such resignation, appointment and acceptance except to the extent inconsistent
with this subsection (f).


 


98





















 


(g)                             The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders as their names and
addresses appear in the Security Register. 
Each notice shall include the name of the successor Trustee and the
address of its corporate trust office.


 


SECTION 11.11 
Acceptance of Appointment by Successor.


 


(a)                              In
case of the appointment hereunder of a successor Trustee, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of all sums owed to it, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its Lien provided for in
Section 11.07.


 


(b)                             Upon
request of any such successor Trustee, the Company shall execute any
instruments which fully vest in and confirm to such successor Trustee all
rights, powers and trusts referred to in subsection (a) of this
Section.


 


(c)                              No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.


 


SECTION 11.12 
Merger, Conversion, Consolidation or Succession 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
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 deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.


 


SECTION 11.13 
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):


 


99





















 


(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) 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.


 


100





















 


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 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 11.13 a creditor
relationship arising from


 


101





















 


(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 11.13;


 


(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 11.13.


 


(c)                                  For the purpose of
this Section 11.13 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 11.13 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


 


102





















 


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 11.14 
Co-trustees and Separate Trustees.


 


At any time or times, for
the purpose of meeting the legal requirements of any jurisdiction in which any
of the Mortgaged Property may at the time be located, the Company and the
Trustee shall have power to appoint, and, upon the written request of the
Trustee or of the Holders of at least twenty-five per centum (25%) in principal
amount of the Securities then Outstanding, the Company shall for such purpose
join with the Trustee in the execution and delivery of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Trustee and, if no Event of Default shall have occurred and be continuing, by
the Company either to act as co-trustee, jointly with the Trustee, of all or
any part of the Mortgaged Property, or to act as separate trustee of any such
property, in either case with such powers as may be provided in the instrument
of appointment, and to vest in such Person or Persons, in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section.  If the Company does not join in such
appointment within fifteen (15) days after the receipt by it of a request so to
do, or if an Event of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.


 


Should any written
instrument or instruments from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to such co-trustee or
separate trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and delivered by the
Company.


 


Every co-trustee or
separate trustee shall, to the extent permitted by law, but to such extent
only, be appointed subject to the following conditions:


 


(A)                          the
Securities shall be authenticated and delivered, and all rights, powers, duties
and obligations hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited or pledged with,
the Trustee hereunder, shall be exercised solely, by the Trustee;


 


(B)                            the
rights, powers, duties and obligations hereby conferred or imposed upon the
Trustee in respect of any property covered by such appointment shall be
conferred or imposed upon and exercised or performed either by the Trustee or
by the Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in which any
particular act is to be performed the Trustee shall be incompetent or
unqualified to perform


 


103





















 


such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee;


 


(C)                            the
Trustee at any time, by an instrument in writing executed by it, with the
concurrence of the Company, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section, and, if an Event
of Default shall have occurred and be continuing, the Trustee shall have power
to accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Company. 
Upon the written request of the Trustee, the Company shall join with the
Trustee in the execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or removal.  A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided in this
Section;


 


(D)                           neither
the Trustee nor any co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of any other trustee
hereunder; and


 


(E)                             any
Act of Holders delivered to the Trustee shall be deemed to have been delivered
to each such co-trustee and separate trustee.


 


SECTION 11.15 
Appointment of Authenticating Agent.


 


The Trustee may appoint
an Authenticating Agent or Agents with respect to the Securities of one or more
series, or any Tranche thereof, which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series or Tranche issued upon
original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder.  Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. 
Each 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 or Territory thereof or the District of Columbia
or the Commonwealth of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
Fifty Million Dollars ($50,000,000) and subject to supervision or
examination by Federal or State authority. 
If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent 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, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.


 


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


 


104





















 


succeeding to all
or substantially all of 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, 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 to the
Company.  The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company.  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.


 


The Company agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its
services under this Section.


 


The provisions of
Sections 3.08, 11.04 and 11.05 shall be applicable to each Authenticating
Agent.


 


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


 


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


 


	
  BNY
  MIDWEST TRUST COMPANY, as Trustee

  
	
   

  
	
   

  
	
  By

  	
   

  	
   

  
	
  As
  Authenticating Agent

  
	
   

  
	
   

  
	
  By

  	
   

  	
   

  
	
  Authorized
  Officer

  



 


If all of the Securities
of a series may not be originally issued at one time, and if the Trustee does
not have an office capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the Trustee, if so requested
by the Company in writing (which writing need not comply with Section 1.05
and need not be accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such


 


105





















 


procedures as shall
be acceptable to the Trustee, an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.


 


ARTICLE XII



Lists of Holders; Reports by Trustee and Company


 


SECTION 12.01  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 12.02 
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 12.01 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 12.01 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


 


(i)                                 afford such applicants access to
the information preserved at the time by the Trustee in accordance with
Section 12.02(a) hereof, or


 


106





















 


(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 12.02(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 12.02(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 12.02(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 12.02(b) hereof.


 


SECTION 12.03 
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 12.01 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):


 


107





















 


(1)                                  any
change to its eligibility under Section 11.09 hereof and its
qualifications under Section 11.08 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 11.13(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 11.02.


 


(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.


 


(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.


 


108





















 


SECTION 12.04  Reports by Company.


 


The Company shall


 


(a)                                  file with the
Trustee, within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which
the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports pursuant to
either of said Sections, then it will file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Exchange
Act in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;


 


(b)                                 file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations; and


 


(c)                                  transmit by mail to
all Holders, as their names and addresses appear in the Security Register,
within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to paragraph (a) and (b) of this Section 12.04 as may be
required by rules and regulations prescribed from time to time by the
Commission.


 


Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute 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).


 


109





















 


ARTICLE XIII



Consolidation, Merger, Conveyance

or Other Transfer


 


SECTION 13.01 
Company May Consolidate, etc., Only on Certain Terms.


 


The Company shall not
consolidate with or merge into any other corporation, or convey or otherwise
transfer, or lease, subject to the Lien of this Indenture, all of the Mortgaged
Property as or substantially as an entirety to any Person, unless:


 


(a)                              such
consolidation, merger, conveyance or other transfer or lease shall be on terms
as shall fully preserve in all material respects the Lien and security of this
Indenture and the rights and powers of the Trustee and the Holders hereunder;


 


(b)                             the
corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or other transfer, or which leases, the
Mortgaged Property as or substantially as an entirety shall be a corporation
organized and existing under the laws of the United States, any State or
Territory thereof or the District of Columbia (such corporation being
hereinafter sometimes called the “Successor Corporation”)
and shall execute and deliver to the Trustee an indenture supplemental hereto,
in form recordable and reasonably satisfactory to the Trustee, which:


 


(i)                                 in
the case of a consolidation, merger, conveyance or other transfer, or in the
case of a lease if the term thereof extends beyond the last Stated Maturity of
the Securities then Outstanding, contains an assumption by the Successor
Corporation of the due and punctual payment of the principal of and premium, if
any, and interest, if any, on all the Securities then Outstanding and the
performance and observance of every covenant and condition of this Indenture to
be performed or observed by the Company, and


 


(ii)                              in
the case of a consolidation, merger, conveyance or other transfer, contains a
grant, conveyance, transfer and mortgage by the Successor Corporation, of the
same tenor of the Granting Clauses herein,


 


(A)                          confirming
the Lien of this Indenture on the Mortgaged Property (as constituted
immediately prior to the time such transaction became effective) and subjecting
to the Lien of this Indenture all property, real, personal and mixed,
thereafter acquired by the Successor Corporation which shall constitute an
improvement, extension or addition to the Mortgaged Property (as so
constituted) or a renewal, replacement or substitution of or for any part
thereof, and, at the election of the Successor Corporation,


 


(B)                            subjecting
to the Lien of this Indenture such property, real, personal or mixed, in
addition to the property described in subclause (A) above, then owned
or thereafter acquired by the Successor Corporation as the Successor
Corporation shall, in its sole discretion, specify or describe therein,


 


and the Lien confirmed or
created by such grant, conveyance, transfer and mortgage shall have force,
effect and standing similar to those which the Lien of this Indenture would
have had if the


 


110





















 


Company had not been a
party to such consolidation, merger, conveyance or other transfer and had
itself, after the time such transaction became effective, purchased,
constructed or otherwise acquired the property subject to such grant,
conveyance, transfer and mortgage;


 


(c)                              in
the case of a lease, such lease shall be made expressly subject to termination
by the Company or by the Trustee at any time during the continuance of an Event
of Default, and also by the purchaser of the property so leased at any sale
thereof hereunder, whether such sale be made under the power of sale hereby
conferred or pursuant to judicial proceedings; and


 


(d)                             the
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel each of which shall state that such consolidation, merger,
conveyance or other transfer 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.


 


As used in this Article and
in Section 8.09(d), the terms “improvement”,
“extension” and “addition” shall be limited to
(a) with respect to real property subject to the Lien of this Indenture,
any item of personal property which has been so affixed or attached to such
real property as to be regarded a part of such real property under applicable
law and (b) with respect to personal property subject to the Lien of this
Indenture, any improvement, extension or addition to such personal property
which (i) is made to maintain, renew, repair or improve the function of
such personal property and (ii) is physically installed in or affixed to
such personal property.


 


SECTION 13.02 
Successor Corporation Substituted.


 


Upon any consolidation or
merger or any conveyance or other transfer, subject to the Lien of this
Indenture, of all of the Mortgaged Property as or substantially as an entirety
in accordance with Section 13.01, the Successor Corporation shall succeed
to, and be substituted for, and may exercise every power and right of, the Company
under this Indenture with the same effect as if such Successor Corporation had
been named as the “Company” herein. 
Without limiting the generality of the foregoing:


 


(a)                              all
property of the Successor Corporation then subject to the Lien of this Indenture,
of the character described in Section 1.03, shall constitute Property
Additions;


 


(b)                             the
Successor Corporation may execute and deliver to the Trustee, and thereupon the
Trustee shall, subject to the provisions of Article IV, authenticate and
deliver, Securities upon any basis provided in Article IV; and


 


(c)                              the
Successor Corporation may, subject to the applicable provisions of this
Indenture, cause Property Additions to be applied to any other Authorized
Purpose.


 


All Securities so
executed by the Successor Corporation, and authenticated and delivered by the
Trustee, shall in all respects be entitled to the benefit of the Lien of this
Indenture equally and ratably with all Securities executed, authenticated and
delivered prior to the time such consolidation, merger, conveyance or other
transfer became effective.


 


111





















 


SECTION 13.03 
Extent of Lien Hereof on Property of Successor Corporation.


 


Unless, in the case of a
consolidation, merger, conveyance or other transfer contemplated by
Section 13.01, the indenture supplemental hereto contemplated in
clause (b)(ii) in Section 13.01, or any other indenture,
contains a grant, conveyance, transfer and mortgage by the Successor Corporation
as described in subclause (B) thereof, neither this Indenture nor
such supplemental indenture shall become or be, or be required to become or be,
a Lien upon any of the properties:


 


(a)                              owned
by the Successor Corporation or any other party to such transaction (other than
the Company) immediately prior to the time of effectiveness of such transaction
or


 


(b)                             acquired
by the Successor Corporation at or after the time of effectiveness of such
transaction,


 


except, in either case,
properties acquired from the Company in or as a result of such transaction and
improvements, extensions and additions to such properties and renewals,
replacements and substitutions of or for any part or parts thereof.


 


SECTION 13.04 
Release of Company upon Conveyance or Other Transfer.


 


In the case of a
conveyance or other transfer (other than a lease) of the Mortgaged Property to
any Person or Persons as contemplated in Section 13.01, upon the
satisfaction of all the conditions specified in Section 13.01, the Company
(such term being used in this Section without giving effect to such
transaction) shall be released and discharged from all obligations and
covenants under this Indenture and on and under all Securities then Outstanding
(unless the Company shall have delivered to the Trustee an instrument in which
it shall waive such release and discharge or any portion thereof) and, upon
Company Order, the Trustee shall acknowledge in writing that the Company has
been so released and discharged.


 


SECTION 13.05 
Merger into Company; Extent of Lien Hereof.


 


(a)                              Nothing
in this Indenture shall be deemed to prevent or restrict any consolidation or
merger after the consummation of which the Company would be the surviving or
resulting corporation or any conveyance or other transfer, or lease, subject to
the Lien of this Indenture, of any part of the Mortgaged Property which does
not constitute the entirety, or substantially the entirety, thereof.


 


(b)                             Unless,
in the case of a consolidation or merger described in
subsection (a) of this Section, an indenture supplemental hereto
shall otherwise provide, this Indenture shall not become or be, or be required
to become or be, a Lien upon any of the properties acquired by the Company in
or as a result of such transaction or any improvements, extensions or additions
to such properties or any renewals, replacements or substitutions of or for any
part or parts thereof.


 


112





















 


ARTICLE XIV



Supplemental Indentures


 


SECTION 14.01 
Supplemental Indentures without Consent of Holders.


 


Without the consent of
any Holders, the Company and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form reasonably
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, all as provided in Article XIII; or


 


(b)                             to
add one or more covenants of the Company or other provisions for the benefit of
all Holders or for the benefit of the Holders of, or to remain in effect only
so long as there shall be Outstanding, Securities of one or more specified
series, or one or more specified Tranches thereof; or to surrender any right or
power herein conferred upon the Company; or


 


(c)                              to
correct or amplify the description of any property at any time subject to the
Lien of this Indenture; or better to assure, convey and confirm unto the
Trustee any property subject or required to be subjected to the Lien of this
Indenture; or to subject to the Lien of this Indenture additional property
(including property of Persons other than the Company); or


 


(d)                             to
change or eliminate any provision of this Indenture or to add any new provision
to this Indenture; provided, however, that if such change, elimination or
addition shall adversely affect the interests of the Holders of Securities of
any series or Tranche in any material respect, such change, elimination or
addition shall become effective with respect to such series or Tranche only
when no Security of such series or Tranche remains Outstanding; or


 


(e)                              to
establish the form or terms of Securities of any series or Tranche as
contemplated by Sections 2.01 and 3.01; or


 


(f)                                to
provide for the authentication and delivery of bearer Securities and coupons
appertaining thereto representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement thereof and for the
giving of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental thereto; or


 


(g)                             to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee or by a co-trustee or separate trustee; or


 


(h)                             to
provide for the procedures required to permit the Company to utilize, at its
option, a non-certificated system of registration for all, or any series or
Tranche of, the Securities; or


 


(i)                                 to
change any place or places where (1) the principal of and premium, if any,
and interest, if any, on all or any series of Securities, or any Tranche
thereof, shall be


 


113





















 


payable, (2) all or
any series of Securities, or any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or any series of Securities,
or any Tranche thereof, and this Indenture may be served; or


 


(j)                                 to
cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or to make any other
additions to, deletions from or other changes to the provisions under this
Indenture, provided that such additions, deletions and/or other changes shall
not adversely affect the interests of the Holders of Securities of any series
or Tranche in any material respect; or


 


(k)                              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.


 


SECTION 14.02 
Supplemental Indentures with Consent of Holders.


 


Subject to the provisions
of Section 14.01, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all series then
Outstanding under this Indenture, considered as one class, by Act of said
Holders delivered to the Company and the Trustee, 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; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if a proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental indenture
shall, without the consent of each Holder of Outstanding Securities affected
thereby:


 


(a)                              change
the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate
of interest thereon (or the amount of any installment of interest thereon) or
change the method of calculating such rate or reduce any premium payable
thereon, or reduce the amount of the principal of any Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 10.02, or change the coin or currency (or
other property), in which any Security or premium, if any, or interest, if any,
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the


 


114





















 


Maturity of any Security,
without, in any such case, the consent of the Holder of such Security; or


 


(b)                             permit
the creation of any Lien (not otherwise permitted hereby) ranking prior to the
Lien of this Indenture with respect to all or substantially all of the
Mortgaged Property, or (except by virtue of a supplemental indenture described
in clause (j) in Section 14.01) terminate the Lien of this Indenture
on all or substantially all of the Mortgaged Property or deprive the Holders of
the benefit of the Lien of this Indenture; or


 


(c)                              reduce
the percentage in principal amount of the Outstanding Securities of any series,
or any Tranche thereof, the consent of the Holders of which is required for any
such supplemental indenture, or the consent of the Holders of which is required
for any waiver of compliance with any provision of this Indenture or of any
default hereunder and its consequences, or reduce the requirements of
Section 15.04 for quorum or voting; or


 


(d)                             modify
any of the provisions of this Section 14.02, Section 6.09 or
Section 10.17 with respect to the Securities of any series or any Tranche
thereof (except to increase the percentages in principal amount referred to in
this Section or such other Sections or to provide that other provisions of
this Indenture cannot be modified or waived without the consent of the Holders
of all Securities of such series or Tranche); 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, or the deletion of this proviso, in accordance with the requirements
of Section 14.01(g).


 


A supplemental indenture
which (x) changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of the
Holders of, or which is to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified series, or one or more
Tranches thereof, or (y) modifies the rights of the Holders of Securities of
such series or Tranches 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 or Tranche.


 


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.


 


SECTION 14.03 
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 11.01) 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.  The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee’s own rights, duties, immunities or
liabilities under this Indenture or otherwise.


 


115





















 


SECTION 14.04 
Effect of Supplemental Indentures.


 


Upon the execution and
delivery 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.  Any supplemental indenture
permitted by this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement shall supersede
this Indenture as theretofore in effect for all purposes.


 


SECTION 14.05 
Reference in Securities to Supplemental Indentures.


 


Securities of any series,
or any Tranche thereof, 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, or any Tranche thereof, 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 or Tranche.


 


SECTION 14.06 
Modification Without Supplemental Indenture.


 


To the extent, if any,
that the terms of any particular series of Securities shall have been established
in or pursuant to a Board Resolution or an Officer’s Certificate pursuant to a
supplemental indenture or a Board Resolution as contemplated by
Section 3.01, and not in a supplemental indenture, additions to, changes
in or the elimination of any of such terms may be effected by means of a
supplemental Board Resolution or a supplemental Officer’s Certificate, as the
case may be, delivered to, and accepted by, the Trustee; provided, however,
that such supplemental Board Resolution or supplemental Officer’s Certificate
shall not be accepted by the Trustee or otherwise be effective unless all
conditions set forth in this Indenture which would be required to be satisfied
if such additions, changes or elimination were contained in a supplemental
indenture shall have been appropriately satisfied.  Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or supplemental Officer’s Certificate
shall be deemed to be a “supplemental indenture” for purposes of
Section 14.04 and 14.05 and a “supplemental indenture”, “indenture
supplemental” to this Indenture or “instrument” supplemental to this Indenture
for purposes of Section 6.08.


 


ARTICLE XV



Meetings of Holders; Action Without Meeting


 


SECTION 15.01 
Purposes for Which Meetings May Be Called.


 


A meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
may be called at any time and from time to time pursuant to this
Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other


 


116





















 


action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.


 


SECTION 15.02 
Call, Notice and Place of Meetings.


 


(a)                              The
Trustee may at any time call a meeting of Holders of Securities of one or more,
or all, series, or any Tranche or Tranches thereof, for any purpose specified
in Section 15.01, to be held at such time and (except as provided in
subsection (b) of this Section) at such place in the Borough of
Manhattan, the City of New York, as the Trustee shall determine, or, with the
approval of the Company, at any other place. 
Notice of every such meeting, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 1.09, not less
than twenty-one (21) nor more than one hundred eighty (180) days prior to the
date fixed for the meeting.


 


(b)                             The
Trustee may be asked to call a meeting of the Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof, by the Company or by
the Holders of twenty-five percentum (25%) in aggregate principal amount of all
of such series and Tranches, considered as one class, for any purpose specified
in Section 15.01, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting. 
If the Trustee shall have been asked by the Company to call such a
meeting, the Company shall determine the time and place for such meeting and
may call such meeting by giving notice thereof in the manner provided in
subsection (a) of this Section, or shall direct the Trustee, in the
name and at the expense of the Company, to give such notice.  If the Trustee shall have been asked to call
such a meeting by Holders in accordance with this subsection (b), and the
Trustee shall not have given the notice of such meeting within twenty-one (21)
days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Holders of Securities of such
series and Tranches, in the principal amount above specified, may determine the
time and the place in the Borough of Manhattan, The City of New York, or in such
other place as shall be determined or approved by the Company, for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.


 


(c)                              Any
meeting of Holders of Securities of one or more, or all, series, or any Tranche
or Tranches thereof, shall be valid without notice if the Holders of all
Outstanding Securities of such series or Tranches are present in person or by
proxy and if representatives of the Company and the Trustee are present, or if
notice is waived in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or any Tranche or Tranches thereof, or
by such of them as are not present at the meeting in person or by proxy, and by
the Company and the Trustee.


 


SECTION 15.03 
Persons Entitled to Vote at Meetings.


 


To be entitled to vote at
any meeting of Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches or (b) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one
or more Outstanding Securities of such series or Tranches by such Holder or
Holders.  The only Persons who shall be
entitled to attend any


 


117





















 


meeting of Holders
of Securities of any series or Tranche shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.


 


SECTION 15.04  Quorum; Action.


 


The Persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities of
the series and Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall constitute a quorum
for a meeting of Holders of Securities of such series and Tranches; provided,
however, that if any action is to be taken at such meeting which this Indenture
expressly provides may be taken by the Holders of a specified percentage, which
is less than a majority, in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, shall constitute a
quorum.  In the absence of a quorum
within one hour of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series and
Tranches, be dissolved.  In any other
case the meeting may be adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such meeting.  In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for such
period as may be determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. 
Except as provided by Section 15.05(e), notice of the reconvening
of any meeting adjourned for more than thirty (30) days shall be given as
provided in Section 1.09 not less than ten (10) days prior to the
date on which the meeting is scheduled to be reconvened.  Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series and Tranches
which shall constitute a quorum.


 


Except as limited by
Section 14.02, any resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid may be adopted only
by the affirmative vote of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of the series and Tranches with respect to
which such meeting shall have been called, considered as one class; provided,
however, that, except as so limited, any resolution with respect to any action
which this Indenture expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as one class,
may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class.


 


Any resolution passed or
decision taken at any meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of Securities of the
series and Tranches with respect to which such meeting shall have been held,
whether or not present or represented at the meeting.


 


118





















 


SECTION 15.05 
Attendance at Meetings; Determination of Voting Rights; Conduct and
Adjournment of Meetings.


 


(a)                              Attendance
at meetings of Holders of Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to which it was given
unless and until specifically revoked by the Holder or future Holder (except as
provided in Section 1.07(g)) of such Securities before being voted.


 


(b)                             Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities
in regard to proof of the holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate.  Except as
otherwise permitted or required by any such regulations and approved by the
Company, the holding of Securities shall be proved in the manner specified in
Section 1.07 and the appointment of any proxy shall be proved in the
manner specified in Section 1.07. 
Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.07 or other proof.


 


(c)                              The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders
as provided in Section 15.02(b), in which case the Company or the Holders
of Securities of the series and Tranches calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman.  A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities of
all series and Tranches represented at the meeting, considered as one class.


 


(d)                             At
any meeting each Holder or proxy shall be entitled to one vote for each One
Thousand Dollars ($1,000) principal amount of Outstanding Securities held or
represented by such Holder; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding.  The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.


 


(e)                              Any
meeting duly called pursuant to Section 15.02 at which a quorum is present
may be adjourned from time to time by Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of all series and
Tranches represented at the meeting, considered as one class; and the meeting
may be held as so adjourned without further notice.


 


SECTION 15.06 
Counting Votes and Recording Action of Meetings.


 


The vote upon any
resolution submitted to any meeting of Holders shall be by written ballots on
which shall be subscribed the signatures of the Holders or of their


 


119





















 


representatives by
proxy and the principal amounts and serial numbers of the Outstanding
Securities, of the series and Tranches with respect to which the meeting shall
have been called, held or represented by them. 
The permanent chairman of the meeting shall appoint two
(2) inspectors of votes who shall count all votes cast at the meeting for
or against any resolution and who shall make and file with the secretary of the
meeting their verified written reports of all votes cast at the meeting.  A record in duplicate of the proceedings of
each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that such notice was given as provided in
Section 15.02 and, if applicable, Section 15.04.  Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.  Any record so signed and
verified shall be conclusive evidence of the matters therein stated.


 


SECTION 15.07 
Action Without Meeting.


 


In lieu of a vote of
Holders at a meeting as hereinbefore contemplated in this Article, any request,
demand, authorization, direction, notice, consent, waiver or other action may
be made, given or taken by Holders by one or more written instruments as
provided in Section 1.06.


 


ARTICLE XVI



Immunity of Incorporators, Stockholders, Officers

and Directors


 


SECTION 16.01 
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 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


 


120





















 


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.


 










 


This Indenture 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 Indenture.  Any such
counterpart, as recorded or filed in any jurisdiction, may omit such portions
of Exhibit A hereto as shall not describe or refer to properties
located in such jurisdiction.


 


121





















 


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


 


	
   

  	
  INTERNATIONAL
  TRANSMISSION COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	 

	
   

  	
   

  	
  Name:

  	 

	
   

  	
   

  	
  Title:

  	 

	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BNY
  MIDWEST TRUST COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	 

	
   

  	
   

  	
  Name:  Roxane
  Ellwanger

  
	
   

  	
   

  	
  Title:  Assistant
  Vice President

  
							



 





















 


	
  STATE OF
  MICHIGAN

  	
  )

  	
   

  
	
   

  	
  ) ss.:

  	
   

  
	
  COUNTY
  OF                                   

  	
  )

  	
   

  



 


On
this          day
of          2003, before me
personally
appeared                       ,
to me known to
be                                of
INTERNATIONAL TRANSMISSION COMPANY, one of the corporations that executed the
within and foregoing instrument, and acknowledged said instrument to be the
free and voluntary act and deed of said Corporation, for the uses and purposes
therein mentioned, and on oath stated that he was authorized to execute said
instrument and that the seal affixed, if any, is the corporate seal of said
Corporation.


 


On
the        day
of             in
the year        before me personally
came                     to
me known, who, being by me duly sworn, did depose and say that he resides
at                                                        ;
that he
is                                                        of
INTERNATIONAL TRANSMISSION COMPANY, the corporation described in and which
executed the above instrument; and that he signed his name thereto by authority
of the board of directors of said corporation.


 


IN WITNESS
WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first above written.


 


	
   

  	
   

  
	
                                         ,
  Notary Public

  
	
                                         ,County,
  Michigan

  
	
  My Commission expires:

  	
   

  	
   

  
				



 





















 


	
  STATE OF ILLINOIS

  	
  )

  	
   

  
	
   

  	
  ) ss.:

  	
   

  
	
  COUNTY OF COOK

  	
  )

  	
   

  



 


On the     day
of             in
the year 2003 before me, the undersigned, personally appeared Roxane Ellwanger,
Assistant Vice President of BNY Midwest Trust Company, personally known to me
or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that
she executed the same in her capacity, and that by her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.


 


 


	
   

  	
   

  
	
  Print Name: A.
  Hernandez

  
	
   

  
	
  Notary Public in
  and for the State of Illinois

  
	
  Commission
  expires: July 8, 2006

  



 


Drafted by:


Milbank, Tweed,
Hadley & McCloy LLP


1Chase Manhattan Plaza


New York, New York  10005


 


When recorded return to:


BNY Midwest Trust Company


2 N. LaSalle Street, Suite 1020


Chicago, Illinois  60630


Attention:  Corporate Trust Administration/Roxane
Ellwanger


 





















 


Exhibit A


 


REAL
PROPERTY


 


State
of Michigan


 


A-1





















 


Schedule I


 


RECORDING
INFORMATION


 


List of Recording Jurisdictions are:


 


Huron County


Lapeer County


Livingston County


Macomb County


Monroe County


Oakland County


St. Clair County


Sanilac County


Tuscola County


Washtenaw County


Wayne County


 


Michigan Secretary of State.