EX-4.1






Exhibit 4.1





Execution



This instrument is the Fortieth Supplemental Indenture to, and an amendment and restatement in its
entirety of, the First Mortgage, dated as of August 1, 1936, between The Cincinnati Gas & Electric
Company (predecessor to Duke Energy Ohio, Inc.) and Irving Trust Company, as trustee (a predecessor
to the trustee herein), as heretofore amended and supplemented.




 

 






DUKE
ENERGY OHIO, INC.




(FORMERLY NAMED “THE CINCINNATI GAS & ELECTRIC COMPANY”)




TO




THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

AS TRUSTEE




(SUCCESSOR TRUSTEE TO THE BANK OF NEW YORK MELLON

AND TO IRVING TRUST COMPANY)




 






FIRST MORTGAGE




DATED AS OF AUGUST 1, 1936




 






FORTIETH SUPPLEMENTAL INDENTURE




DATED AS OF MARCH 23, 2009




Constituting an Amendment and Restatement in its Entirety

of the aforesaid First Mortgage, as heretofore amended




and




Creating First Mortgage Bonds, 5.45% Series, Due April 1, 2019




 

 








 









 












DUKE ENERGY OHIO, INC.

Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of

August 1, 1936, as amended and restated in its entirety on March 23, 2009




	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	310
	 	(a)(1)	 	10.09
	 
	 	(a)(2)	 	10.09
	 
	 	(a)(3)	 	10.14
	 
	 	(a)(4)	 	Not Applicable
	 
	 	(b)	 	10.08, 10.10
	311
	 	(a)	 	10.13
	 
	 	(b)	 	10.13
	 
	 	(c)	 	Not Applicable
	312
	 	(a) 	 	11.01
	 
	 	(b) 	 	11.01
	 
	 	(c) 	 	11.01
	313
	 	(a) 	 	11.02
	 
	 	(b)(1) 	 	Not Applicable
	 
	 	(b)(2) 	 	11.02
	 
	 	(c) 	 	11.02
	 
	 	(d) 	 	11.02
	314
	 	(a) 	 	11.02
	 
	 	(a)(4) 	 	7.05
	 
	 	(b) 	 	Not Applicable
	 
	 	(c)(1) 	 	1.04
	 
	 	(c)(2) 	 	1.04
	 
	 	(c)(3) 	 	Not Applicable
	 
	 	(d) 	 	Not Applicable
	 
	 	(e) 	 	1.04
	315
	 	(a) 	 	10.01(a)
	 
	 	(b) 	 	10.02
	 
	 	(c) 	 	10.01(b)
	 
	 	(d) 	 	10.01(c)
	 
	 	(d)(1) 	 	10.01(a)(1), 10.01(c)(1)
	 
	 	(d)(2) 	 	10.01(c)(2)
	 
	 	(d)(3) 	 	10.01(c)(3)
	 
	 	(e) 	 	9.14
	316
	 	(a) 	 	9.12, 9.13
	 
	 	(a)(1)(A) 	 	9.02, 9.12
	 
	 	(a)(1)(B) 	 	9.13
	 
	 	(a)(2) 	 	Not Applicable
	 
	 	(b) 	 	9.08
	317
	 	(a)(1) 	 	9.03
	 
	 	(a)(2) 	 	9.04
	 
	 	(b) 	 	7.03
	318
	 	(a) 	 	1.09






 









 






TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ARTICLE ONE. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	 	 	9	 
	SECTION 1.01.
	 	DEFINITIONS	 	 	9	 
	SECTION 1.02.
	 	FUNDED PROPERTY; FUNDED CASH	 	 	22	 
	SECTION 1.03.
	 	PROPERTY ADDITIONS; COST	 	 	23	 
	SECTION 1.04.
	 	COMPLIANCE CERTIFICATES AND OPINIONS	 	 	25	 
	SECTION 1.05.
	 	FORM OF DOCUMENTS DELIVERED TO TRUSTEE	 	 	26	 
	SECTION 1.06.
	 	ACTS OF HOLDERS	 	 	28	 
	SECTION 1.07.
	 	NOTICES, ETC. TO TRUSTEE OR COMPANY	 	 	29	 
	SECTION 1.08.
	 	NOTICE TO HOLDERS OF SECURITIES; WAIVER	 	 	30	 
	SECTION 1.09.
	 	CONFLICT WITH TRUST INDENTURE ACT	 	 	30	 
	SECTION 1.10.
	 	EFFECT OF HEADINGS AND TABLE OF CONTENTS	 	 	31	 
	SECTION 1.11.
	 	SUCCESSORS AND ASSIGNS	 	 	31	 
	SECTION 1.12.
	 	SEPARABILITY CLAUSE	 	 	31	 
	SECTION 1.13.
	 	BENEFITS OF INDENTURE	 	 	31	 
	SECTION 1.14.
	 	GOVERNING LAW	 	 	31	 
	SECTION 1.15.
	 	LEGAL HOLIDAYS	 	 	31	 
	SECTION 1.16.
	 	INVESTMENT OF CASH HELD BY TRUSTEE	 	 	32	 
	SECTION 1.17.
	 	FORCE MAJEURE	 	 	32	 
	SECTION 1.18.
	 	WAIVER OF JURY TRIAL	 	 	33	 
	 
	 	 	 	 	 	 
	ARTICLE TWO. SECURITY FORMS	 	 	34	 
	SECTION 2.01.
	 	FORMS GENERALLY	 	 	34	 
	SECTION 2.02.
	 	FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION	 	 	34	 
	 
	 	 	 	 	 	 
	ARTICLE THREE. THE SECURITIES	 	 	35	 
	SECTION 3.01.
	 	AMOUNT UNLIMITED; ISSUABLE IN SERIES	 	 	35	 
	SECTION 3.02.
	 	DENOMINATIONS	 	 	38	 
	SECTION 3.03.
	 	EXECUTION, AUTHENTICATION, DELIVERY AND DATING	 	 	38	 
	SECTION 3.04.
	 	GLOBAL OR TEMPORARY SECURITIES	 	 	41	 






-i-









 






	 	 	 	 	 	 	 
	SECTION 3.05.
	 	REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE	 	 	41	 
	SECTION 3.06.
	 	MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES	 	 	43	 
	SECTION 3.07.
	 	PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED	 	 	43	 
	SECTION 3.08.
	 	PERSONS DEEMED OWNERS	 	 	44	 
	SECTION 3.09.
	 	CANCELLATION	 	 	45	 
	SECTION 3.10.
	 	COMPUTATION OF INTEREST	 	 	45	 
	SECTION 3.11.
	 	PAYMENT TO BE IN PROPER CURRENCY	 	 	45	 
	SECTION 3.12.
	 	EXTENSION OF INTEREST PAYMENT	 	 	46	 
	SECTION 3.13.
	 	CUSIP AND ISIN NUMBERS	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE FOUR. FIRST MORTGAGE BONDS, 5.45% SERIES DUE APRIL 1, 2019	 	 	47	 
	SECTION 4.01. 
	 	CREATION AND DESIGNATION OF BONDS OF SERIES DUE 2019	 	 	47	 
	SECTION 4.02. 
	 	AGGREGATE PRINCIPAL AMOUNT OF BONDS OF SERIES DUE 2019 ISSUABLE	 	 	47	 
	SECTION 4.03.
	 	BOOK-ENTRY SYSTEM	 	 	47	 
	SECTION 4.04.
	 	DATE OF BONDS OF SERIES DUE 2019	 	 	50	 
	SECTION 4.05.
	 	MATURITY DATES, INTEREST RATES, INTEREST PAYMENT DATES AND REGULAR RECORD DATES FOR BONDS OF SERIES DUE 2019
	 	 	50	 
	SECTION 4.06.
	 	PLACE AND MANNER OF PAYMENT OF BONDS OF SERIES DUE 2019	 	 	51	 
	SECTION 4.07.
	 	DENOMINATIONS AND NUMBERING OF DEFINITIVE BONDS OF SERIES DUE 2019	 	 	51	 
	SECTION 4.08.
	 	TEMPORARY BONDS OF SERIES DUE 2019 AND EXCHANGE THEREOF	 	 	51	 
	SECTION 4.09.
	 	REDEMPTION PROVISIONS OF THE BONDS OF SERIES DUE 2019	 	 	51	 
	SECTION 4.10.
	 	FORM OF THE BONDS OF SERIES DUE 2019	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE FIVE. REDEMPTION OF SECURITIES	 	 	58	 
	SECTION 5.01.
	 	APPLICABILITY OF ARTICLE	 	 	58	 
	SECTION 5.02.
	 	ELECTION TO REDEEM; NOTICE TO TRUSTEE	 	 	58	 
	SECTION 5.03.
	 	SELECTION OF SECURITIES TO BE REDEEMED	 	 	58	 






-ii-









 






	 	 	 	 	 	 	 
	SECTION 5.04.
	 	NOTICE OF REDEMPTION	 	 	59	 
	SECTION 5.05.
	 	SECURITIES PAYABLE ON REDEMPTION DATE	 	 	60	 
	SECTION 5.06.
	 	SECURITIES REDEEMED IN PART	 	 	60	 
	 
	 	 	 	 	 	 
	ARTICLE SIX. SINKING FUNDS	 	 	61	 
	SECTION 6.01.
	 	APPLICABILITY OF ARTICLE	 	 	61	 
	SECTION 6.02.
	 	SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES	 	 	61	 
	SECTION 6.03.
	 	REDEMPTION OF SECURITIES FOR SINKING FUND	 	 	61	 
	 
	 	 	 	 	 	 
	ARTICLE SEVEN. REPRESENTATIONS AND COVENANTS	 	 	63	 
	SECTION 7.01.
	 	PAYMENT OF SECURITIES; LAWFUL POSSESSION	 	 	63	 
	SECTION 7.02.
	 	MAINTENANCE OF OFFICE OR AGENCY	 	 	63	 
	SECTION 7.03.
	 	MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST	 	 	64	 
	SECTION 7.04.
	 	CORPORATE EXISTENCE	 	 	65	 
	SECTION 7.05.
	 	ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE	 	 	65	 
	SECTION 7.06.
	 	WAIVER OF CERTAIN COVENANTS	 	 	65	 
	 
	 	 	 	 	 	 
	ARTICLE EIGHT. SATISFACTION AND DISCHARGE	 	 	67	 
	SECTION 8.01.
	 	SATISFACTION AND DISCHARGE OF SECURITIES	 	 	67	 
	SECTION 8.02.
	 	SATISFACTION AND DISCHARGE OF INDENTURE	 	 	69	 
	SECTION 8.03.
	 	APPLICATION OF TRUST MONEY	 	 	70	 
	 
	 	 	 	 	 	 
	ARTICLE NINE. EVENTS OF DEFAULT; REMEDIES	 	 	72	 
	SECTION 9.01.
	 	EVENTS OF DEFAULT	 	 	72	 
	SECTION 9.02.
	 	ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT	 	 	73	 
	SECTION 9.03.
	 	COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE	 	 	74	 
	SECTION 9.04.
	 	TRUSTEE MAY FILE PROOFS OF CLAIM	 	 	74	 
	SECTION 9.05.
	 	TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES	 	 	75	 
	SECTION 9.06.
	 	APPLICATION OF MONEY COLLECTED	 	 	75	 
	SECTION 9.07.
	 	LIMITATION ON SUITS	 	 	76	 






-iii-









 






	 	 	 	 	 	 	 
	SECTION 9.08.
	 	UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST
	 	 	76	 
	SECTION 9.09.
	 	RESTORATION OF RIGHTS AND REMEDIES	 	 	76	 
	SECTION 9.10.
	 	RIGHTS AND REMEDIES CUMULATIVE	 	 	77	 
	SECTION 9.11.
	 	DELAY OR OMISSION NOT WAIVER	 	 	77	 
	SECTION 9.12.
	 	CONTROL BY HOLDERS OF SECURITIES	 	 	77	 
	SECTION 9.13.
	 	WAIVER OF PAST DEFAULTS	 	 	77	 
	SECTION 9.14.
	 	UNDERTAKING FOR COSTS	 	 	78	 
	SECTION 9.15.
	 	WAIVER OF USURY, STAY OR EXTENSION LAWS	 	 	78	 
	SECTION 9.16.
	 	RECEIVER AND OTHER REMEDIES	 	 	78	 
	SECTION 9.17.
	 	ENTRY UPON MORTGAGED PROPERTY	 	 	79	 
	SECTION 9.18.
	 	POWER OF SALE; SUITS FOR ENFORCEMENT	 	 	79	 
	SECTION 9.19.
	 	INCIDENTS OF SALE	 	 	79	 
	 
	 	 	 	 	 	 
	ARTICLE TEN. THE TRUSTEE	 	 	81	 
	SECTION 10.01.
	 	CERTAIN DUTIES AND RESPONSIBILITIES	 	 	81	 
	SECTION 10.02.
	 	NOTICE OF DEFAULTS	 	 	81	 
	SECTION 10.03.
	 	CERTAIN RIGHTS OF TRUSTEE	 	 	81	 
	SECTION 10.04.
	 	NOT RESPONSIBLE FOR RECITALS, ISSUANCE OF SECURITIES, ETC.	 	 	83	 
	SECTION 10.05.
	 	MAY HOLD SECURITIES	 	 	83	 
	SECTION 10.06.
	 	MONEY HELD IN TRUST	 	 	83	 
	SECTION 10.07.
	 	COMPENSATION AND REIMBURSEMENT	 	 	83	 
	SECTION 10.08.
	 	DISQUALIFICATION; CONFLICTING INTERESTS	 	 	84	 
	SECTION 10.09.
	 	CORPORATE TRUSTEE REQUIRED; ELIGIBILITY	 	 	85	 
	SECTION 10.10.
	 	RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR	 	 	85	 
	SECTION 10.11.
	 	ACCEPTANCE OF APPOINTMENT BY SUCCESSOR	 	 	87	 
	SECTION 10.12.
	 	MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS	 	 	87	 
	SECTION 10.13.
	 	PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY	 	 	87	 
	SECTION 10.14.
	 	CO-TRUSTEE AND SEPARATE TRUSTEES	 	 	88	 
	SECTION 10.15.
	 	APPOINTMENT OF AUTHENTICATING AGENT	 	 	89	 






-iv-









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ARTICLE ELEVEN. HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY	 	 	91	 
	SECTION 11.01.
	 	LISTS OF HOLDERS	 	 	91	 
	SECTION 11.02.
	 	REPORTS BY TRUSTEE AND COMPANY	 	 	91	 
	 
	 	 	 	 	 	 
	ARTICLE TWELVE. CONSOLIDATION, MERGER, CONVEYANCE, OR OTHER TRANSFER	 	 	92	 
	SECTION 12.01.
	 	COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS	 	 	92	 
	SECTION 12.02.
	 	SUCCESSOR COMPANY SUBSTITUTED	 	 	93	 
	SECTION 12.03.
	 	EXTENT OF LIEN HEREOF ON PROPERTY OF SUCCESSOR COMPANY	 	 	94	 
	SECTION 12.04.
	 	RELEASE OF COMPANY UPON CONVEYANCE OR OTHER TRANSFER	 	 	94	 
	SECTION 12.05.
	 	MERGER INTO COMPANY; EXTENT OF LIEN HEREOF	 	 	94	 
	SECTION 12.06.
	 	TRANSFER OF LESS THAN SUBSTANTIALLY ALL	 	 	95	 
	 
	 	 	 	 	 	 
	ARTICLE THIRTEEN. SUPPLEMENTAL INDENTURES	 	 	96	 
	SECTION 13.01.
	 	SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS	 	 	96	 
	SECTION 13.02.
	 	SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS	 	 	97	 
	SECTION 13.03.
	 	EXECUTION OF SUPPLEMENTAL INDENTURES	 	 	99	 
	SECTION 13.04.
	 	EFFECT OF SUPPLEMENTAL INDENTURES	 	 	99	 
	SECTION 13.05.
	 	CONFORMITY WITH TRUST INDENTURE ACT	 	 	99	 
	SECTION 13.06.
	 	REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES	 	 	99	 
	SECTION 13.07.
	 	MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE	 	 	100	 
	 
	 	 	 	 	 	 
	ARTICLE FOURTEEN. MEETINGS OF HOLDERS; ACTION WITHOUT MEETING	 	 	101	 
	SECTION 14.01.
	 	PURPOSES FOR WHICH MEETINGS MAY BE CALLED	 	 	101	 
	SECTION 14.02.
	 	CALL, NOTICE AND PLACE OF MEETINGS	 	 	101	 
	SECTION 14.03.
	 	PERSONS ENTITLED TO VOTE AT MEETINGS	 	 	101	 
	SECTION 14.04.
	 	QUORUM; ACTION	 	 	102	 






-v-









 






	 	 	 	 	 	 	 
	SECTION 14.05.
	 	ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS
	 	 	103	 
	SECTION 14.06.
	 	COUNTING VOTES AND RECORDING ACTION OF MEETINGS	 	 	103	 
	SECTION 14.07.
	 	ACTION WITHOUT MEETING	 	 	104	 
	 
	 	 	 	 	 	 
	ARTICLE FIFTEEN. IMMUNITY OF INCORPORATORS,
SHAREHOLDERS, OFFICERS AND DIRECTORS	 	 	105	 
	SECTION 15.01.
	 	LIABILITY SOLELY CORPORATE	 	 	105	 
	 
	 	 	 	 	 	 
	ARTICLE SIXTEEN. ISSUANCE OF SECURITIES	 	 	106	 
	SECTION 16.01.
	 	GENERAL	 	 	106	 
	SECTION 16.02.
	 	ISSUANCE OF SECURITIES ON THE BASIS OF PROPERTY ADDITIONS	 	 	106	 
	SECTION 16.03.
	 	ISSUANCE OF SECURITIES ON THE BASIS OF RETIRED SECURITIES	 	 	108	 
	SECTION 16.04.
	 	ISSUANCE OF SECURITIES ON THE BASIS OF DEPOSIT OF CASH	 	 	109	 
	 
	 	 	 	 	 	 
	ARTICLE SEVENTEEN. POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY	 	 	110	 
	SECTION 17.01.
	 	QUIET ENJOYMENT	 	 	110	 
	SECTION 17.02.
	 	DISPOSITIONS WITHOUT RELEASE	 	 	110	 
	SECTION 17.03.
	 	RELEASE OF FUNDED PROPERTY	 	 	111	 
	SECTION 17.04.
	 	RELEASE OF MORTGAGED PROPERTY NOT CONSTITUTING FUNDED PROPERTY	 	 	114	 
	SECTION 17.05.
	 	RELEASE OF MINOR PROPERTIES	 	 	115	 
	SECTION 17.06.
	 	WITHDRAWAL OR OTHER APPLICATION OF FUNDED CASH; PURCHASE MONEY OBLIGATIONS
	 	 	116	 
	SECTION 17.07.
	 	RELEASE OF PROPERTY TAKEN BY EMINENT DOMAIN, ETC.	 	 	119	 
	SECTION 17.08.
	 	DISCLAIMER OR QUITCLAIM	 	 	120	 
	SECTION 17.09.
	 	MISCELLANEOUS	 	 	120	 
	SECTION 17.10.
	 	PRESERVATION OF LIEN	 	 	121	 
	SECTION 17.11.
	 	MAINTENANCE OF PROPERTIES	 	 	121	 
	SECTION 17.12.
	 	PAYMENT OF TAXES; DISCHARGE OF LIENS	 	 	122	 






-vi-









 






	 	 	 	 	 	 	 
	SECTION 17.13.
	 	INSURANCE	 	 	122	 
	SECTION 17.14.
	 	RECORDING, FILING, ETC.	 	 	125	 
	 
	 	 	 	 	 	 
	EXHIBIT A.    RECORDING DATA	 	 	A-1	 
	 
	 	 	 	 	 	 
	EXHIBIT B.    REAL PROPERTY ACQUIRED SINCE DECEMBER 1, 1985	 	 	B-1	 
	 
	 	 	 	 	 	 
	EXHIBIT C.    SCHEDULE OF REAL PROPERTY HOLDINGS	 	 	C-1	 







-vii-











 





     FORTIETH SUPPLEMENTAL INDENTURE, dated as of March 23, 2009 (the “Execution Date”), between
DUKE ENERGY OHIO, INC. (hereinafter sometimes referred to as the “Company”), a corporation
organized and existing under the laws of the State of Ohio, formerly named The Cincinnati Gas &
Electric Company, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking
association, and the successor trustee to The Bank of New York Mellon and Irving Trust Company
(hereinafter sometimes referred to as the “Trustee”), whose mailing address is 900 Ashwood Parkway,
Suite 425, Atlanta, Georgia 30338, this Fortieth Supplemental Indenture being an amendment and
restatement in its entirety of the Indenture, dated as of August 1, 1936 (the “Original
Indenture”), between the Company and the Trustee, as heretofore from time to time amended.



RECITALS OF THE COMPANY




     The Original Indenture was authorized, executed and delivered by the Company to provide for
the issuance from time to time of its bonds (herein called the “Securities”), to be issued in one
or more series as contemplated therein, and to provide security for the payment of the principal of
and premium, if any, and interest, if any, on the Securities.



     The Company has heretofore executed and delivered to the Trustee thirty-nine supplemental
indentures for the purposes recited therein, including creating series of Securities and otherwise
supplementing and amending the Original Indenture. There are no Securities now outstanding under
the Original Indenture, as so amended and supplemented.



     Effective upon the execution and delivery of this Fortieth Supplemental Indenture:



     (a) The Bank of New York Mellon shall be deemed to have resigned as Trustee, Bond registrar
and paying agent under the Indenture;



     (b) the Company shall be deemed to have accepted such resignations and appointed The Bank of
New York Mellon Trust Company, N.A. as successor Trustee, Security Registrar and Paying Agent (each
as hereinafter defined) under the Indenture;



     (c) The Bank of New York Mellon Trust Company, N.A. shall be deemed to have accepted such
appointments and to be vested with all the estates, properties, rights, powers, trusts, duties and
obligations of The Bank of New York Mellon, as Trustee, Security Registrar and Paying Agent under
the Indenture;



     (d) such resignations, appointments and acceptances thereof shall be deemed to be effective,
notwithstanding anything to the contrary contained in Section 2 or 4 of Article Sixteen of the
Original Indenture, as heretofore amended and supplemented, including any provision therein for
notice of such resignations, appointments and acceptances; and



     (e) the Company shall be deemed to have requested the release, and the Trustee shall be deemed
to have released, from the Lien of the Original Indenture, as heretofore amended, any mortgaged
property (as defined in the Original Indenture, as heretofore amended) not otherwise set forth in
the granting clauses below, to the extent such mortgaged property has not been previously released,
including, without limitation, the following:



 









 






     (i) Electric Generating Plants. All electric generating plants and stations of
the Company owned by it as of the Execution Date, including all buildings, structures and
works, and the land on which the same are situated, and all other lands and easements,
rights of way, permits, privileges, towers, poles, wires, machinery, equipment, appliances,
appurtenances and supplies forming a part of such plants and stations;




     (ii) Water Systems. All water systems of the Company owned by it as of the
Execution Date, including pumping and purification equipment, wells, structures, rights of
way, tanks, mains, fire hydrants, services and meters and all other property, real or
personal, forming a part of or appertaining to, or used, occupied or enjoyed in connection
with such water systems, together with permits, privileges, franchises and rights in or
relating to the construction, maintenance or operation thereof, through, under or upon any
private property or any public streets or highways within as well as without the corporate
limits of any municipal corporation; and




     (iii) Gas Transmission and Distribution Systems. All gas plants, compressor
stations, gas measuring, regulating, and mixing stations, gas transmission lines and gas
distribution systems, including, but not limited to, all water sets, benches and retorts,
gas holders, boilers, purification apparatus, exhausters and pumps, meters and meter
installations, gauges, regulators and regulator installations, governors, calorimetric
devices, valves, fuel handling apparatus, safety tanks, valves, pipes and piping, couplings,
gates, drips, lighting and heating apparatus, machinery, equipment, appliances, and all
accessory equipment, appurtenances and supplies forming a part of such gas plants, stations,
transmission lines and distribution systems.



     The Company now desires to amend and restate the Indenture as now in effect (comprised of the
Original Indenture as heretofore from time to time amended) and has requested the Trustee to join
in the execution and delivery of this Fortieth Supplemental Indenture in order to effectuate such
amendment and restatement; it being understood, acknowledged and agreed, however, that, anything
herein or in the Original Indenture or any supplemental indenture to the contrary notwithstanding,
(a) the execution and delivery of this Fortieth Supplemental Indenture and the amendment and
restatement of the Original Indenture as heretofore amended, as aforesaid, shall not affect the
Lien granted and/or created in the granting clauses of the Original Indenture with respect to the
mortgaged property, and confirmed in the granting clauses of supplemental indentures heretofore
executed and delivered, or the priority of such Lien and (b) such Lien shall continue in effect
from the date of the original grant or creation thereof (except to the extent hereby or heretofore
released).



     The Company duly authorized the execution and delivery of the Original Indenture and of each
supplemental indenture heretofore executed and delivered. The Company has further duly authorized
the execution and delivery of this Fortieth Supplemental Indenture to amend and restate the
Original Indenture as heretofore amended, as contemplated above; and all acts and things necessary
to make each of this Fortieth Supplemental Indenture and the Indenture a valid agreement of the
Company have been performed.



-2-









 





     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 One of this Indenture.



GRANTING CLAUSES




     NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, the Company has granted, bargained, sold,
conveyed, assigned, transferred, mortgaged, pledged, set over and confirmed, and 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, in trust, and grants to the Trustee a security interest in and lien on, the following
(subject, however, to the terms and conditions set forth in this Indenture):



FIRST GRANTING CLAUSE





     All right, title and interest of the Company, as of the Execution Date, in and to all
property, real, personal and mixed, wherever located (other than Excepted Property), in any
case used or to be used in or in connection with the transmission and distribution of
electric energy by the Company (whether or not such use is the sole use of such property),
including without limitation, all right, title and interest of the Company in and to the
following:




     (a) all real property owned in fee, easements and other interests in real
property which are specifically described or referred to in the Original Indenture
and in supplemental indentures thereto, recording information with respect to which
is set forth in Exhibit A hereto, and the real property acquired by the Company
between December 1, 1985, the date of the Twenty-Fifth Supplemental Indenture, and
the date of this Fortieth Supplemental Indenture, and owned by it at the latter
date, which is described on Exhibit B hereto, except real property owned in fee,
easements and other interests in real property which have been specifically released
from such Lien from time to time (without limiting the generality of the foregoing,
a listing of the Company’s principal real estate holdings (by address and county)
encumbered by the Original Indenture or supplements thereto, and intended to be
encumbered by this Indenture is set forth on Exhibit C hereto);




     (b) without limiting the generality of the foregoing, all recorded easements or
rights of way on, upon, over, under and through real property located in the State
of Ohio, used or useful in the Company’s transmission or distribution of electric
energy and acquired by the Company in the ordinary course of its business, whether
acquired by deed, grant of easement, dedication by plat or otherwise, and whether
acquired in the name of the Company or any of



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its predecessor companies and including the Company’s right to the joint use of
any easement or right of way acquired by any other utility company;




     (c) all facilities, machinery, equipment and fixtures for the transmission and
distribution of electric energy including, but not limited to, all 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 franchises, licenses, permits, grants, immunities, privileges and
rights of the Company used or useful in the operation of its electric transmission
and distribution businesses, including all franchises, licenses, permits, grants,
immunities, privileges and rights of the Company granted by any municipalities or
political subdivisions, and all right, title and interest therein owned by the
Company on the Execution Date, and all renewals, extensions and modifications of
said franchises, grants, privileges and rights, or any of them;




     (f) 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; and




     (g) all of the foregoing property in the process of construction;



SECOND GRANTING CLAUSE





     Subject to the applicable exceptions permitted by Section 17.09(d), Section 12.03 and
Section 12.05, all right, title and interest of the Company in all property, real, personal
and mixed, wherever located (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 Execution Date shall be as fully embraced within and subjected to the Lien
hereof as if such property were owned by the Company as of the Execution Date; and



THIRD GRANTING CLAUSE





     Any Excepted Property, which may, from time to time after the Execution Date, by
delivery or by an instrument supplemental hereto, 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;



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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, securities accounts, shares of stock, interests in business or statutory
trusts, general or limited partnerships or limited liability companies, bonds,
notes, other evidences of indebtedness and other securities, security entitlements,
commodities accounts and other investment property and policies of insurance on
lives of officers of the Company, 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 and rights thereunder (other than the Company’s
franchises, permits and licenses that are used or useful in the operation of its
electric transmission and distribution businesses); all bills, notes and other
instruments and chattel paper (except to the extent that any of the same constitute
securities, security entitlements or investment property, in which case they are
separately excepted from the Lien of this Indenture under clause (a) above); all
revenues, income and earnings, all accounts, accounts receivable, rights to payment,
payment intangibles and unbilled revenues, rights or property consisting of rights
granted by statute or governmental action to bill and collect revenues or other
amounts from customers or others, including rate stabilization charges and other
special charges, and all rents, tolls, issues, product and profits, dividends,
income, claims, credits, demands and judgments; all governmental and other licenses,
permits and franchises (other than the Company’s franchises, permits and licenses
that are used or useful in the operation of its electric transmission and
distribution businesses); all unrecorded easements and rights of way; all consents
and allowances, including emission allowances and regulatory assets; all documents,
including warehouse receipts; all cooperative interests; and all patents, patent
licenses and other patent rights, patent applications, trade names, trademarks,
copyrights and other intellectual property; and all claims, credits, choses in
action, commercial tort claims, tax credits 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;



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     (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, 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 the
facilities, machinery, equipment or fixtures described or referred to in clauses
(c), (d), (f) or (g) of the First Granting Clause of this Indenture;




     (e) all coal, lignite, 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 and capacity, gas (natural or artificial), steam, water and other
products generated, produced, manufactured, purchased or otherwise acquired by the
Company;




     (f) all property which is the subject of a lease agreement designating the
Company as lessee and all right, title and interest of the Company in and to such
property and in, to and under such lease agreement, whether or not such lease
agreement is intended as security;




     (g) all property, real, personal and mixed, which has been released from the
Lien of this Indenture and any improvements, extensions and additions to such
properties and renewals, replacements and substitutions of or for any parts thereof;




     (h) all property located outside of the State of Ohio;




     (i) any and all property, stations and plants used by the Company in the
generation of electricity, including all buildings, structures and works, and the
land on which the same are situated, and all other lands and easements, rights of
way, permits, privileges, towers, poles, wires, machinery, equipment, appliances,
appurtenances and supplies forming a part of such plants and stations;




     (j) any and all water systems of the Company, including pumping and
purification equipment, wells, structures, rights of way, tanks, mains, fire
hydrants, services and meters and all other property, real or personal, forming a
part of or appertaining to, or used, occupied or enjoyed in connection with such
water systems, together with permits, privileges, franchises and rights in or
relating to the construction, maintenance or operation thereof, through, under or



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upon any private property or any public streets, or highways within as well as
without the corporate limits of any municipal corporation;




     (k) any and all gas plants, compressor stations, gas measuring, regulating, and
mixing stations, gas transmission lines and gas distribution systems, including, but
not limited to, all water sets, benches and retorts, gas holders, boilers,
purification apparatus, exhausters and pumps, meters and meter installations,
gauges, regulators and regulator installations, governors, calorimetric devices,
valves, fuel handling apparatus, safety tanks, valves, pipes and piping, couplings,
gates, drips, lighting and heating apparatus, machinery, equipment, appliances, and
all accessory equipment, appurtenances and supplies forming a part of such gas
plants, stations, transmission lines and distribution systems; and




     (l) all property not acquired or constructed by the Company for use in its
electric transmission and distribution businesses;




provided, however, that, subject to the provisions of Section 12.03, (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 10.14 or any receiver appointed pursuant to Section 9.16
or otherwise, shall have entered into possession of all or substantially all the Mortgaged
Property, to the extent permitted by law, all the Excepted Property described or referred to
in the foregoing clauses (b), (c) and (d) 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, and, in the case of any Excepted
Property described or referred to in clause (f), to the extent that the same is used in
connection with, or otherwise relates or is attributable to, the Mortgaged Property, upon
demand of the Trustee or such other trustee or receiver, become subject to the Lien of this
Indenture, junior and subordinate to any Liens at that time existing on such Excepted
Property, and the Trustee or such other trustee or receiver may, to the extent permitted 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 the Third Granting Clause, subject any
Excepted Property to the Lien of this Indenture 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 Permitted Liens;



     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;



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     PROVIDED, HOWEVER, that if 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 Eight hereof, and if the principal of and premium 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 7.03 hereof or to the appropriate Governmental Authority pursuant to
applicable law after the Maturity thereof, then and in that case this Indenture shall cease,
terminate and become void in accordance with, and subject to the conditions set forth in, Article
Eight hereof, and 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:



[The remainder of this page has been left blank intentionally.]





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ARTICLE ONE.




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




SECTION 1.01. 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 as
in effect on the Execution Date, 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
of Ohio as in effect on the Execution Date shall have the meanings assigned to them therein;



     (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 Execution Date; 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) any reference to an “Article” or a “Section” refers to an Article or a Section, as the
case may be, of this Indenture; and



     (f) 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.



     “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 an employee or Affiliate of the Company.



     “Act”, when used with respect to any Holder of a Security, has the meaning specified in
Section 1.06.



     “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



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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.




     “Authenticating Agent” means any Person or Persons (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 Vice Chairman, the President, any
Vice President, the Treasurer, any Assistant Treasurer, or any other officer, manager or agent of
the Company duly authorized pursuant to a Board Resolution to act in respect of matters relating to
this Indenture.



     “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 such form of
communication as may have come into general use for the dissemination of information of similar
import. 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 extraordinary 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, board of managers or similar
governing body 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 Secretary, an Assistant
Secretary or an Authorized Officer 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.



     “Bonds of Series Due 2019” has the meaning specified in Section 4.01.



     “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 or
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.



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     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the Execution Date 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 instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.



     “Company Order” or “Company Request” mean, respectively, a written order or request, as the
case may be, signed in the name of the Company by an Authorized Officer and delivered to the
Trustee.



     “Corporate Trust Office” means the designated office of the Trustee at which at any particular
time its corporate trust business shall be administered, which office at the Execution Date is
located at 900 Ashwood Parkway, Suite 425, Atlanta, Georgia 30338.



     “corporation” means a corporation, association, company, limited liability company,
partnership, limited partnership, joint stock company, or business or statutory trust, and
references to “corporate” and other derivations of “corporation” herein shall be deemed to include
appropriate derivations of such entities.



     “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 9.02. “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 of America as at the time shall be legal tender for the payment of public and private debts.



     “Eligible Obligations” means:



          (a) with respect to Securities denominated in Dollars, Government Obligations or, if
specified pursuant to Section 3.01 with respect to any Securities, other Investment
Securities; or



          (b) 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 9.01.



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



     “Exchange Act” means, as of any time, the Securities Exchange Act of 1934, as amended, as in
effect at such time.



     “Execution Date” has the meaning specified in the first paragraph of this instrument.



     “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.



     “Expert’s Certificate” means a certificate signed by an Authorized Officer and by an Expert
(which Expert (a) shall be selected either by the Board of Directors or by an Authorized Officer,
the execution of such certificate by such Authorized Officer to be conclusive evidence of such
selection, and (b) except as otherwise required in Sections 12.06, 16.02 or 17.09, may be an
employee or Affiliate of the Company) and delivered to the Trustee. 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 of the Securities.



     “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 17.03) and (y) the Fair Value to the Company of 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



-12-









 




political subdivision of any thereof, or any department, agency, authority or other
instrumentality of any of the foregoing.




     “Government Obligations” means securities which are (a) (i) direct obligations of the United
States where the payment or payments thereunder are supported by the full faith and credit of the
United States or (ii) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by the United States or (b)
depository receipts issued by a bank (as defined in Section 3(a)(2) of the Securities Act, which
may include the Trustee or any Paying Agent) as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of or other amount with respect to any
such Government Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation evidenced by such depository
receipt.



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



     “Indenture” means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this Indenture and any such supplemental indenture, respectively. The term “Indenture”
shall also include the provisions or terms of particular series of Securities established in any
Officer’s Certificate, Board Resolution or Company Order delivered pursuant to Sections 2.01, 3.01,
3.03 and 13.07.



     “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, and
(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.



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



     “interest” with respect to a Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate rather than interest calculated at any imputed rate.



     “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



-13-









 




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 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 (which, for the avoidance of doubt, includes, without
limitation, Funded Cash, Investment Securities and obligations secured by Purchase Money Liens to
the extent held by the Trustee as part of the Mortgaged Property as set forth herein).



-14-









 





     “Notice of Default” means a written notice of the kind specified in Section 9.01(c).



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



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company,
or an individual who is an employee of the Company or an Affiliate of the Company, and who shall be
acceptable to the Trustee.



     “Original Indenture” has the meaning specified in the first paragraph of this instrument.



     “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 Security Registrar for cancellation;



     (b) Securities deemed to have been paid for all purposes of this Indenture in accordance with
Section 8.01 (whether or not the Company’s indebtedness in respect thereof shall be satisfied and
discharged for any other purpose), or deemed to have been paid in accordance with the terms of the
Securities; and



     (c) Securities, the principal, premium, if any, and interest, if any, which have been fully
paid pursuant to the third paragraph of Section 3.06 or in exchange for 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
Affiliate or such obligor owns all Securities Outstanding under this Indenture, or
(except for the purposes of actions to be taken by Holders of more than one series
or more than one Tranche, as the case may be, voting as a class under Section 13.02)
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



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reasonable satisfaction of the Trustee that the pledgee, and not the Company,
or 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 provided, further, that in no event shall any Security which shall have
been delivered to evidence or secure, in whole or in part, the Company’s obligations
in respect of other indebtedness be deemed to be owned by the Company if the
principal of such Security is payable, whether at Stated Maturity or upon mandatory
redemption or acceleration, at the same time as the principal of such other
indebtedness is payable, whether at Stated Maturity or upon mandatory redemption or
acceleration, but only to the extent of such portion of the principal amount of such
Security as does not exceed the principal amount of such other indebtedness, 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 902; and




     (z) the principal amount of any Security which is denominated in a currency
other than Dollars or in a composite currency that shall be deemed to be Outstanding
for such purposes shall be the amount of Dollars which could have been purchased by
the principal amount (or, in the case of a Discount Security, the Dollar equivalent
on the date determined as set forth below of the amount determined as provided in
(y) above) of such currency or composite currency evidenced by such Security, in
each such case certified to the Trustee in an Officer’s Certificate, based (i) on
the average of the mean of the buying and selling spot rates quoted by three banks
which are members of the New York Clearing House Association selected by the Company
in effect at 11:00 A.M. (New York time) in The City of New York on the fifth
Business Day preceding any such determination or (ii) if on such fifth Business Day
it shall not be possible or practicable to obtain such quotations from such three
banks, on such other quotations or alternative methods of determination which shall
be as consistent as practicable with the method set forth in (i) above;


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;
provided, however, that unless otherwise provided as contemplated by Section 3.01, the Trustee
shall be the Paying Agent for all series of Securities.



     “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



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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, as contemplated in Section 3.01 and clause (b) of Section 3.03.




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



     (a) Liens existing at the date of execution and delivery of the Original Indenture;



     (b) as to property acquired by the Company after the date of execution and delivery of the
Original Indenture, Liens existing or placed thereon at the time of the acquisition thereof and any
Purchase Money Liens;



     (c) 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 or of which at
least ten (10) Business Days notice has not been given to the general counsel of the Company or to
such other Person designated by the Company to receive such notices;



     (d) Mechanics’, workmen’s, repairmen’s, materialmen’s, warehousemen’s, and carriers’ Liens,
other Liens incident to construction, Liens or privileges of any employees of the Company for
salary or wages earned, but not yet payable, and other Liens, including without limitation Liens
for worker’s compensation awards, 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 or of which at least ten (10) Business Days notice has not been given to the general
counsel of the Company or to such other Person designated by the Company to receive such notices;



     (e) 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) Fifty Million Dollars
($50,000,000) and (B) three percent (3%) of the 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 or (Z) have not received at least ten (10) Business Days notice given to the
general counsel of the Company or to such other Person designated by the Company to receive such
notices;



     (f) 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;



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



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license or similar right; or (iii) the rights-of-way, leases, easements, licenses or similar
rights in favor of the Company; provided, however, that (A) 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; (B) the Company has power under
eminent domain or similar statutes to remove or subordinate such Liens, defects, irregularities,
exceptions or limitations or (C) such defects, irregularities, exceptions and limitations may be
otherwise remedied without undue effort or expense; and defects, irregularities, exceptions and
limitations in title to flood lands, flooding rights and/or water rights;




     (h) 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;



     (i) leases existing at the date of execution and delivery of the Original Indenture 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;



     (j) 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;



     (k) 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;



     (l) 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; and any and all obligations of the Company correlative to any such rights;



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     (m) 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;



     (n) Liens on the Mortgaged Property or any part thereof which are granted by the Company to
secure duties or public or statutory obligations or to secure, or serve in lieu of, surety, stay or
appeal bonds;



     (o) 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 electric capacity or energy, gas, water, steam and
any other products, developed, produced, manufactured, generated, purchased or otherwise acquired
by the Company or by others on property of the Company;



     (p) (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;



     (q) any restrictions on assignment and/or requirements of any assignee to qualify as a
permitted assignee and/or public utility or public service corporation;



     (r) 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;



     (s) rights and interests granted pursuant to Section 17.02(c);



     (t) Prepaid Liens and Purchase Money Liens; and



     (u) any Lien of the Trustee granted pursuant to Section 10.07.



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



     “Place of Payment”, when used with respect to the Securities of any series, or Tranche
thereof, means the place or places, specified as contemplated by Section 3.01 or specified in
Section 4.06 with respect to the Bonds of Series Due 2019, at which, subject to Section 7.02,
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



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exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.




     “Prepaid Lien” means any Lien securing indebtedness for the payment of which money in the
necessary amount shall have been irrevocably deposited in trust with the trustee or other holder of
such Lien; 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 mortgage or other 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



     (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.




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     “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, exclusive of accrued and unpaid interest.



     “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 or
specified for that purpose in Section 4.10 with respect to the Bonds of Series Due 2019.



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



     “Responsible Officer”, when used with respect to the Trustee, means any Vice President,
Assistant Vice President, Trust Officer or other officer of the Trustee who, in the case of each of
the foregoing, is assigned by the Trustee to its corporate trust department responsible for the
administration of this Indenture that is located in the Corporate Trust Office.



     “Retired Securities” means any Securities authenticated and delivered under this Indenture on
or after the Execution Date, which (a) 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), (b) have not been made the basis under any of the provisions of this Indenture of one or
more Authorized Purposes or (c) have not been paid, redeemed, purchased or otherwise retired by the
application thereto of Funded Cash.



     “Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any securities authenticated and delivered under this Indenture.



     “Securities Act” means, as of any time, the Securities Act of 1933, as amended, as in effect
at such time.



     “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 a Security shall be made without regard
to the effective interest cost to the Company of such Security and without regard to the Stated
Interest Rate on, or the effective cost to the Company of, any other indebtedness the Company’s
obligations in respect of which are evidenced or secured in whole or in part by such Security.



     “Stated Maturity”, when used with respect to any Security or any obligation or any installment
of principal thereof or interest thereon, means the date on which the principal of such



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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).




     “Successor Company” has the meaning set forth in Section 12.01.



     “supplemental indenture” or “indenture supplemental hereto” means an instrument supplementing
or amending this Indenture executed and delivered pursuant to Article Thirteen.



     “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.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have been appointed by the Company pursuant to Section 10.10 or
otherwise have become such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee”
as used with respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.



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



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



SECTION 1.02. FUNDED PROPERTY; FUNDED CASH.




     “Funded Property” means:



     (a) 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 16.02;



     (b) all Property Additions to the extent that the same shall have been made the basis of the
release of Funded Property from the Lien of this Indenture pursuant to Section 17.03;



     (c) all Property Additions to the extent that the same shall have been substituted for Funded
Property retired pursuant to Section 1.03;



     (d) 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 16.04 or 17.06; and



     (e) 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 cease to be Outstanding.



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     In the event that in any certificate filed with the Trustee in connection with any of the
Property Additions referred to in clauses (a), (b), (d) and (e) 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 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 17.13), or cash deposited in
connection with the release of Funded Property pursuant to Article Seventeen, 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 Seventeen, all subject, however, to the provisions of
Section 17.13 and Section 17.06; and



     (b) any cash deposited with the Trustee under Section 16.04.



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 Mortgaged Property.



     (b) When any Property Additions are certified to the Trustee as the basis of any Authorized
Purpose (except as otherwise provided in Section 17.03 and Section 17.06),




     (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



-23-









 






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




     (1) 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 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;




     (2) 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;




     (3) 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 16.03 shall at any time
theretofore have been waived under Section 17.03(d)(iii) as the basis of the release
of Funded Property retired;




     (4) the Cost or Fair Value to the Company (whichever shall be less) 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




     (5) 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 17.03, 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



-24-









 




thereof, (iii) the principal amount of any obligations secured by 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,





     (i) 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, 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;




     (ii) 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




     (iii) 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 16.02(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. 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 in the opinion of the Authorized
Officer executing such Officer’s Certificate all conditions precedent, if any, provided




-25-











 




for in this Indenture relating to the proposed action (including any covenants compliance with
which constitutes a condition precedent) 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,
except that in the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.




     Every certificate or opinion with respect to compliance 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 1.05. 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



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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 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, abstracts of title, lien search
certificates and other similar documents or (ii) certificates of, or representations by, officers,
employees, agents and/or other representatives of the Company or (iii) any combination of the
documents referred to in (i) and (ii), 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 (i) any Person is required to make,
give or execute two or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, or (ii) two or more Persons are each required to make, give
or execute any such application, request, consent, certificate, statement, opinion or other
instrument, any such applications, requests, consents, certificates, statements, opinions or other
instruments 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, Opinion of Counsel or other document or instrument, a



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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 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 benefits of this Indenture equally and ratably with all other Outstanding
Securities, except as aforesaid.



SECTION 1.06. 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 Fourteen, 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 10.01) 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 14.06.



     (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 ownership, 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.



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     (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 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
Company 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) If the Company shall solicit from Holders any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option, fix in advance a record date
for the determination of Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or
other Act 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
whether Holders of the requisite proportion of the Outstanding Securities have authorized or agreed
or consented to such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of the record date.



SECTION 1.07. NOTICES, ETC. TO TRUSTEE OR 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 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 (such means of delivery being acceptable to the Trustee) to
such telephone number or other electronic communications address set forth for such party below or
such other address as the parties hereto shall from time to time designate, or delivered by
registered or certified mail or reputable overnight courier, charges prepaid, to the applicable
address set forth for such party below or to such other address as either party hereto may from
time to time designate:



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If to the Trustee, to:



The Bank of New York Mellon Trust Company, N.A.

Corporate Trust Administration

900 Ashwood Parkway, Suite 425

Atlanta, Georgia 30338

Attention: Vice President

Telecopy: (770) 698-5195



If to the Company, to:



Duke Energy Ohio, Inc.

526 South Church Street

Charlotte, North Carolina 28202

Attention: Treasurer

Telecopy: (980) 373-3699




     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 or certified mail or reputable overnight courier, on the date of receipt.



SECTION 1.08. 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, if any, 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 1.09. CONFLICT WITH 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



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by, any provision of the Trust Indenture Act, such other provision shall control; and if any
provision hereof otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act shall
control unless otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities.



SECTION 1.10. 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 1.11. SUCCESSORS AND ASSIGNS.




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



SECTION 1.12. 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 1.13. 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 of any Outstanding
Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.



SECTION 1.14. GOVERNING LAW.




     This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of Ohio, except (a) to the extent that the Trust Indenture Act shall be
applicable, and (b) that the rights, duties, obligations, privileges, immunities and standard of
care of the Trustee shall be governed by the laws of the State of New York.



SECTION 1.15. 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, Redemption Date, or 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.



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SECTION 1.16. 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 17.06 or in Article Eight, at the request of the Company
evidenced by Company Order, be invested or reinvested in Investment Securities designated by the
Company (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 the cash used to purchase such Investment
Securities was being held as part of the Mortgaged Property, then such Investment Securities and
proceeds shall also be held as part of the Mortgaged Property. 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
this Section.



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



SECTION 1.17. FORCE MAJEURE.




     In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.



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SECTION 1.18. 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 OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.



[End of Article One]




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ARTICLE TWO.




SECURITY FORMS




SECTION 2.01. FORMS GENERALLY.




     The definitive Securities of each series shall be in substantially the form or forms thereof
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, or with respect to the Bonds of Series Due 2019, in substantially the form set
forth in Section 4.10, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such notations, legends or endorsements placed thereon as may
be required to comply with applicable law, the rules of any securities exchange or depository,
including The Depository Trust Company, or other clearing corporation or securities intermediary,
automated quotation system, agreements to which the Company is subject, or usage, or as may,
consistently herewith, be determined by the officers executing such Securities, as evidenced by
their execution thereof. 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 3.03 for the
authentication and delivery of such Securities.



     Unless otherwise specified as contemplated by Section 3.01, 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.



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as
Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 



[End of Article Two]




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ARTICLE THREE.




THE SECURITIES




SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.





     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 second to last paragraph of
this Section and except with respect to the Bonds of Series Due 2019, 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:



     (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 13.06 and except for any Securities
which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered
hereunder);



     (c) the Person or Persons (without specific identification) to whom any interest on Securities
of such series, or any Tranche thereof, shall be payable, if other than 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;



     (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); and the right, if any, to extend the Maturity of the Securities of such
series, or any Tranche thereof, and the duration of any such 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
after Maturity 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 and the Regular Record Dates, 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; and the right, if any, to extend the interest payment periods and the duration of any
such extension;



-35-









 





     (f) the place or places at which and/or 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, if
other than the Trustee; and, if such is the case and if administratively acceptable to the Trustee,
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 and any restrictions on
such redemptions; including but not limited to a restriction on a partial redemption by the Company
of the Securities of any series, or any Tranche thereof, resulting in delisting of such Securities
from any national exchange;



     (h) the obligation or obligations, if any, of the Company to redeem or purchase or repay the
Securities of such series, or any Tranche thereof, pursuant to any sinking fund 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 or repaid, 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 or repayment 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 multiple
thereof;



     (j) 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 period or periods within which, and the terms and conditions upon which, such election may be
made and the manner in which the amount of such coin or currency payable is to be determined;



     (k) 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 Dollars) and the manner in which the equivalent of
the principal amount thereof in Dollars is to be determined for any purpose, including for the
purpose of determining the principal amount deemed to be Outstanding at any time;



     (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



-36-









 







amount shall be determined, and the period or periods within which, and the terms and
conditions upon which, any such election may be 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 this Indenture, the manner in which such amounts
shall be determined to the extent not established pursuant to clause (e) of this paragraph;



     (n) if other than the entire 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 9.02;



     (o) any Events of Default, in addition to those specified in Section 9.01, and any covenants
of the Company for the benefit of the Holders of Securities, in addition to those set forth in
Article Seven; provided, however, that such supplemental indenture, Board Resolution or Officer’s
Certificate may provide that such additions or exceptions shall only be effective so long as the
Securities of such series, or one or more Tranches thereof, remain Outstanding;



     (p) 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;



     (q) 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, whether Eligible Obligations include
Investment Securities with respect to Securities of such series, and any provisions for
satisfaction and discharge of Securities of any series, in addition to those set forth in Article
Eight, or any exceptions to those set forth in Article Eight;



     (r) 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 global form and (iii) any other matters incidental to such Securities;



     (s) 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 (g) of Section 13.01;



     (t) to the extent not established pursuant to clause (r) 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;



     (u) any exceptions to Section 1.15, or variation in the definition of Business Day, with
respect to the Securities of such series, or any Tranche thereof; and



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     (v) any other terms of the Securities of such series, or any Tranche thereof, that the Company
may elect to specify.



     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 in clause (b) of Section 3.03.



     Unless otherwise provided with respect to a series of Securities as contemplated in Section
3.01(b), without the consent of any Holder, the aggregate principal amount of a series of
Securities, including the Bonds of Series Due 2019, may be increased and additional Securities of
such series may be issued up to the maximum aggregate principal amount authorized with respect to
such series as increased, provided that such additional Securities of such series are fungible with
the previously issued Securities of such series for Federal income tax purposes.



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 multiple thereof.



SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.




     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 (but need not) have the corporate seal of the Company affixed thereto
or reproduced thereon attested by any other Authorized Officer or by the Secretary or an Assistant
Secretary of the Company. 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 or the Secretary or an Assistant Secretary of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Securities or did not hold such offices at the
date of such Securities.



     The 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 the Securities
of such series, as provided in Sections 2.01 and 3.01;



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     (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, or pursuant to
Article Four, 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, to the extent acceptable to the Trustee,
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 establishing the terms of
the Securities of such series delivered pursuant to clause (a) above;



     (c) any opinions, certificates, documents and instruments required by Article Sixteen;



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



     (e) an Officer’s Certificate (i) which shall comply with the requirements of Section 1.04 of
this Indenture and (ii) which states that no Event of Default under this Indenture has occurred or
is occurring; and



     (f) an Opinion of Counsel which shall comply with the requirements of Section 1.04 of this
Indenture and that states 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; and




     (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 have been duly issued under this
Indenture and will constitute valid and legally binding obligations of the Company, entitled
to the benefits provided by this Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting generally the enforcement of
mortgagees’ and other creditors’ rights, including, without limitation, bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws affecting the rights and
remedies of creditors and mortgagees generally and general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law);


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 Securities of such series and that in lieu of the opinions
described in clauses (ii) and (iii) above such Opinion of Counsel may, alternatively, state,
respectively,




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     (x) that, 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; and



     (y) that, such Securities, when (1) executed by the Company, (2) authenticated and delivered
by the Trustee in accordance with this Indenture, (3) issued and delivered by the Company and (4)
paid for, all as contemplated by and in accordance with the aforesaid Company Order or Orders, as
the case may be, will have been duly issued under this Indenture and will constitute valid and
legally binding obligations of the Company, entitled to the benefits provided by the Indenture, and
enforceable in accordance with their terms, subject, as to enforcement, to laws relating to or
affecting generally the enforcement of mortgagees’ and other creditors’ rights, including, without
limitation, bankruptcy, insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors and mortgagees generally and general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law).



     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 and the legality, validity, binding effect and enforceability thereof, and compliance
of the authentication and delivery thereof with the terms and conditions of this Indenture, upon
the Opinion of Counsel and other documents delivered pursuant to Sections 2.01 and 3.01 and this
Section, as applicable, at or prior to the time of the first authentication of Securities of such
series, unless and until such opinion 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,
pursuant 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.



     If the forms or terms of the Securities of any series have been established by or pursuant to
a Board Resolution or an Officer’s Certificate as permitted by Sections 2.01 or 3.01, the Trustee
shall not be required to authenticate such Securities if the issuance of such Securities pursuant
to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.



     Except as 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.



     Except as 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 its agent by manual signature of an authorized signatory thereof, and such certificate upon any



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Security shall be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder to the Company, or any Person acting on its behalf, but shall never have been issued and
sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not comply with Section 1.04
and need not be accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be entitled to the
benefits hereof.



SECTION 3.04. GLOBAL OR TEMPORARY SECURITIES.




     The Company may issue some or all of the Securities in temporary or permanent global form. The
Company may issue a global Security only to a depository, including The Depository Trust Company,
or other clearing corporation or securities intermediary, or its nominee. A depository or its
nominee may transfer a Security in global form only to the depository, a nominee of a depository or
to a successor depository, but upon request of such depository, the Company shall deliver
non-global Securities in exchange for global Securities. A global Security shall represent the
amount of Securities specified in the global Security. A global Security may have variations that
the depository requires or that the Company considers appropriate for such a Security, including
grids for increasing or decreasing the principal amount of such Security. Beneficial owners of part
or all of a global Security are subject to the rules of the depository as in effect from time to
time. The Company, the Trustee and any Registrar and any Paying Agent shall not be responsible for
any acts or omissions of a depository, for any depository records of beneficial ownership interests
or for any transactions between the depository and beneficial owners.



     Until definitive Securities are ready for delivery, the Company may use temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall deliver definitive Securities in exchange for temporary Securities. 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.



SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.




     The Company shall cause to be kept in an office designated pursuant to Section 7.02, with
respect to the Securities of each series, a register (all registers kept in accordance with this
Section being collectively referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the registration of
Securities of such series, or any Tranche thereof, 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.” Unless otherwise provided as contemplated by Section 3.01, the Trustee shall be the



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Security Registrar for all series of Securities. Anything herein to the contrary
notwithstanding, the Company may designate one of its offices as an office in which the register
with respect to the Securities of a series shall be maintained, and the Company may designate
itself the Security Registrar with respect to one or more series of Securities. The Security
Register shall be open for inspection by the Trustee and the Company at all reasonable times.



     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
7.02 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 obligation, 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 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 Sections 3.04, 5.06 or 13.06 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 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.



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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, 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 any of them
harmless, then, in the absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, 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, 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, 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) in
connection therewith.



     Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original 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.



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



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having been such Holder, and such Defaulted Interest may be paid by the Company, at its
election, as provided in clause (a) or (b) below:



     (a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a date (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 (and at the request of the
Company, invested or reinvested in Government Obligations designated by the Company and maturing on
or before the Special Record Date fixed by the Trustee, any interest accruing on such Government
Obligations to be promptly paid over to the Company free and clear of any Lien) for the benefit of
the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the 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 promptly cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at the address of such Holder as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on such Special Record
Date.



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



     Subject to the foregoing provisions of this Section 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.



SECTION 3.08. PERSONS DEEMED OWNERS.




     Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such 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



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overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall
be affected by notice to the contrary.



SECTION 3.09. CANCELLATION.




     All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment 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, except as expressly permitted by this Indenture. All canceled Securities held by
the Security Registrar shall be disposed of in accordance with the customary practices of the
Security Registrar at the time in effect, and the Security Registrar shall not be required to
destroy any such certificates. The Security Registrar shall promptly deliver a certificate of
disposition to the Trustee and the Company unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned to it. The Security Registrar shall
promptly deliver evidence of any cancellation of a Security in accordance with this Section 3.09 to
the Trustee and the Company upon their request therefor.



SECTION 3.10. COMPUTATION OF INTEREST.




     Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, or
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 month, on the basis of the actual number of days elapsed
during such period. For example, the interest for a period running from the 15th day of one month
to the 15th day of the next month would be calculated on the basis of one 30-day month.



SECTION 3.11. PAYMENT TO BE IN PROPER CURRENCY.




     In the case of any Security denominated in any currency other than Dollars or in a composite
currency (the “Required Currency”), except as otherwise specified with respect to such Security as
contemplated by Section 3.01, the obligation of the Company to make any payment of the principal
thereof, or the premium or interest 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 amount of Required Currency then due and payable,



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and in no circumstances shall the Trustee be liable therefor except in the case of its
negligence or willful misconduct.



SECTION 3.12. EXTENSION OF INTEREST PAYMENT.




     The Company shall have the right at any time, to extend interest payment periods on all the
Securities of any series hereunder, if so specified as contemplated by Section 3.01 with respect to
such Securities and upon such terms as may be specified as contemplated by Section 3.01 with
respect to such Securities.



SECTION 3.13. CUSIP AND ISIN NUMBERS.




     The Company in issuing the Securities may use CUSIP, ISIN or other similar numbers (if then
generally in use), and, if so, the Company, the Trustee or the 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 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 shall promptly notify the Trustee and Security Registrar of any change in the CUSIP,
ISIN or other such number.



[End of Article Three]





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ARTICLE FOUR.




FIRST MORTGAGE BONDS, 5.45% SERIES DUE APRIL 1, 2019




SECTION 4.01. CREATION AND DESIGNATION OF BONDS OF SERIES DUE 2019.




     There is hereby created a series of Securities to be issued under and secured by the
Indenture, to be designated as “First Mortgage Bonds, 5.45% Series, Due April 1, 2019 (herein
sometimes referred to as the “Bonds of Series Due 2019”).



SECTION 4.02. AGGREGATE PRINCIPAL AMOUNT OF BONDS OF SERIES DUE 2019 ISSUABLE.




     (a) The principal amount of Bonds of Series Due 2019 which may be authenticated and delivered
hereunder is limited to the aggregate principal amount of Four Hundred Fifty Million Dollars
($450,000,000) (except for Bonds of Series Due 2019 authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Bonds of Series Due 2019 pursuant to
Section 3.04, 3.05, 3.06, 5.06 or 13.06 and except for any Bonds of Series Due 2019 which, pursuant
to Section 3.03, are deemed never to have been authenticated and delivered hereunder).



     (b) The Bonds of Series Due 2019 in the aggregate principal amount of Four Hundred Fifty
Million Dollars ($450,000,000) may at any time subsequent to the execution hereof be executed by
the Company and delivered to the Trustee and shall be authenticated by the Trustee and delivered
(either before or after the recording hereof) upon the basis of Property Additions issued and
delivered to the Trustee for such purpose, pursuant to a Company Order referred to in Section 16.02
of this Indenture and upon receipt by the Trustee of the opinions and other documents required by
said Section 16.02.



SECTION 4.03. BOOK-ENTRY SYSTEM.




     The following provisions shall apply to the Bonds of Series Due 2019.



     (a) The Bonds of Series Due 2019 shall be issued in fully registered form only. However,
except as provided elsewhere in this Section, the registered owner of all of the Bonds of Series
Due 2019 initially shall be The Depository Trust Company (“DTC”) or its nominee, and such Bonds of
Series Due 2019 initially shall be registered in the name of DTC or its nominee. Payment of the
principal of or interest on Bonds of Series Due 2019 registered in the name of DTC or its nominee
shall be made in the manner specified in DTC’s rules and by-laws. DTC (and any successor
securities depository) and its (or their) participating institutions (collectively “Participants”)
shall maintain a book-entry registration and transfer system with respect to ownership of
beneficial interests in the Bonds of Series Due 2019 (the “Book-Entry System”).



     (b) The Bonds of Series Due 2019 initially shall be issued in the form of one or more
authenticated, fully registered bonds for such series (each a “Global Security”) which (i) need not
be in the form of a lithographed or engraved certificate, but may be typewritten or printed on
ordinary paper or such paper as the Trustee may reasonably request, (ii) shall represent and be



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denominated in an amount equal to 100% of the aggregate principal amount of the Bonds of
Series Due 2019 issued under this Indenture, (iii) shall be executed by the Company and
authenticated by the Trustee in accordance with the provisions of this Indenture, (iv) shall be
registered in the name of DTC or its nominee, and delivered to DTC or its nominee or a custodian
therefor, and (v) shall contain the following legend on the face thereof:





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



     Unless and until it is exchanged in whole or in part for Bonds of Series Due 2019 in
definitive certificated form, each Global Security representing the Bonds of Series Due 2019 may
not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or by DTC or any such nominee to a successor securities depository or a
nominee of any such successor securities depository.



     (c) The Trustee and the Company may treat DTC or its nominee, or any successor securities
depository or nominee thereof (collectively, the “Depository”) as the sole and exclusive owner of
the Bonds of Series Due 2019, registered in its name for the purposes of payment of the principal
or redemption price of or interest on the Bonds of Series Due 2019, giving any notice permitted or
required to be given to Holders of the Bonds of Series Due 2019, under this Indenture, registering
the transfer of the Bonds of Series Due 2019, obtaining any consent or other action to be taken by
Holders of the Bonds of Series Due 2019, and for all other purposes whatsoever and neither the
Trustee nor the Company shall be affected by any notice to the contrary. Neither the Company nor
the Trustee nor any Security Registrar nor any Paying Agent shall have any responsibility or
obligation to any Participant, any Person claiming a beneficial ownership interest in the Bonds of
Series Due 2019 under or through the Depository or any Participant, or any other Person which is
not shown on the Security Register as being a Holder of the Bonds of Series Due 2019 with respect
to (i) the accuracy of any records maintained by the Depository or any Participant; (ii) the
payment by the Depository to any Participant of any amount in respect of the principal or
Redemption Price of or interest on the Bonds of Series Due 2019; (iii) the payment by any
Participant to any owner of a beneficial ownership interest in the Bonds of Series Due 2019, in
respect of the principal or Redemption Price of or interest on the Bonds of Series Due 2019 or (iv)
any consent or other action taken by the Depository as owner of the Bonds of Series Due 2019. The
Trustee shall pay all principal or Redemption Price of and interest on the Bonds of Series Due 2019
only to or upon the order of the registered Holder or Holders of the Bonds of Series Due 2019, as
shown on the Security Register, and all such payments shall be valid and effective to fully satisfy
and discharge the Company’s obligations with respect to the principal or Redemption Price of and
interest on the Bonds of Series Due 2019, to the extent of the sum or sums so paid. Except as
hereinafter



-48-









 




provided, no Person other than a Holder of the Bonds of Series Due 2019, as shown on the
Security Register, shall receive an authenticated Bond evidencing the obligation of the Company to
make payment of the principal or Redemption Price of and interest on the Bonds of Series Due 2019,
pursuant to this Indenture. Upon delivery by DTC to the Trustee of written notice to the effect
that DTC has determined to substitute a new nominee for Cede & Co, and subject to the provisions of
this Indenture, the word “Cede & Co.”, as used in this Indenture, shall refer to each new nominee
of DTC.




     (d) In the event that after the occurrence of an Event of Default that has not been cured or
waived, holders of a majority in aggregate principal amount of the beneficial interests in the
Bonds of Series Due 2019, as reflected in the books and records of the Depository, notify the
Trustee, through the Depository or any Participant, that the continuation of the Book-Entry System
is no longer in the best interests of such holders of beneficial interests in the Bonds of such
Series, then the Trustee shall notify the Depository and the Company, and the Depository will
notify the Participants of the availability through the Depository of definitive certificated Bonds
of such Series. In such event, the Company shall execute, and the Trustee, upon receipt of a
Company Order, for the authentication and delivery of definitive certificated Bonds of Series Due
2019, will authenticate and deliver Bonds of such Series in definitive certificated form, in any
authorized denominations, all pursuant to the provisions of this Indenture, to the Person or
Persons specified to the Trustee in writing by the Depository in the aggregate principal amount of
the applicable Global Security or Securities and in exchange for such Global Security or
Securities.



     (e) If at any time the Depository notifies the Company that it is unwilling or unable to
continue as Depository for the Bonds of Series Due 2019, or if at any time the Depository shall no
longer be registered as a clearing agency in good standing under the Exchange Act or other
applicable statute or regulation, the Company may appoint a successor Depository with respect to
the Bonds of such Series. If a successor Depository for the Bonds of such Series is not appointed
by the Company within 90 days after the Company receives such notice or becomes aware of such
condition, the Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive certificated Bonds of Series Due 2019, will authenticate
and deliver Bonds of such Series in definitive certificated form, in any authorized denominations,
all pursuant to the provisions of this Indenture, to the Person or Persons specified to the Trustee
in writing by the Depository in the aggregate principal amount of the applicable Global Security or
Global Securities and in exchange for such Global Security or Global Securities.



     (f) The Company may at any time and in its sole discretion and subject to the procedures of
the Depository determine that the Bonds of Series Due 2019 shall no longer be represented by a
Global Security or Global Securities. In such event the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of definitive certificated
Bonds of Series Due 2019, will authenticate and deliver Bonds of Series Due 2019 in definitive
certificated form, in any authorized denominations, all pursuant to the provisions of this
Indenture, to the Person or Persons specified to the Trustee in writing by the Depository in the
aggregate principal amount of the Global Security or Global Securities and in exchange for such
Global Security or Global Securities.



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     (g) Upon the exchange of any Global Security for the Bonds of Series Due 2019 in definitive
certificated form, in authorized denominations, the Global Security or Global Securities shall be
cancelled by the Trustee.



     (h) Whenever the Depository requests the Company and the Trustee to do so, the Trustee and the
Company will cooperate with the Depository in taking appropriate action after reasonable notice to
(i) make available one or more separate Global Securities evidencing the Bonds of Series Due 2019
to any Participant having such Bonds of Series Due 2019 credited to its account at the Depository,
or (ii) arrange for another Depository to maintain custody of the Global Security or Securities
evidencing the Bonds of Series Due 2019.



     (i) In connection with any notice or other communication to be provided to Holders of the
Bonds of Series Due 2019 pursuant to this Indenture by the Company or the Trustee with respect to
any consent or other action to be taken by Holders of such Bonds of Series Due 2019, the Company or
the Trustee, as the case may be, shall establish a record date for such consent or other action and
give the Depository notice of such record date not less than 15 calendar days in advance of such
record date to the extent possible. Such notice to the Depository shall be given only so long as a
Depository or its nominee is the sole Holder of the Bonds of Series Due 2019.



SECTION 4.04. DATE OF BONDS OF SERIES DUE 2019.




     Each Bond of Series Due 2019 issued prior to the first Interest Payment Date therefor shall be
dated as of March 23, 2009, and otherwise shall be dated as provided in Section 3.03 of this
Indenture.



SECTION 4.05. MATURITY DATES, INTEREST RATES, INTEREST PAYMENT DATES AND REGULAR RECORD DATES FOR
BONDS OF SERIES DUE 2019.




     All Bonds of Series Due 2019 shall be due and payable on April 1, 2019, and shall bear
interest from the date of original issuance thereof or the last date to which interest has been
paid or duly provided for at the rate of 5.45% per annum, payable semi-annually on the first day of
April and October in each year, commencing October 1, 2009 (each such date being an Interest
Payment Date for Bonds of Series Due 2019).



     Subject to certain exceptions provided in this Indenture, the interest payable on any Interest
Payment Date for Bonds of Series Due 2019 shall be paid to the Person in whose name a Bond of
Series Due 2019 shall be registered at the close of business on the Regular Record Date for the
Bonds of Series Due 2019 (as defined in the form of the Bonds of Series Due 2019 set forth in
Section 4.10) or, in the case of any Defaulted Interest therefor, in the manner and to the Person
as provided in Section 3.07 of this Indenture. If any Interest Payment Date for Bonds of Series
Due 2019 should fall on a day that is not a Business Day, then the interest payment shall be made
on the next succeeding Business Day and no interest shall accrue for the intervening period with
respect to the payment so deferred.



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SECTION 4.06. PLACE AND MANNER OF PAYMENT OF BONDS OF SERIES DUE 2019.




     Subject to agreements with or the rules of the Depository or any successor book-entry security
system or similar system with respect to Global Securities, both the principal of and the interest
on the Bonds of Series Due 2019 shall be payable in any coin or currency of the United States of
America which at the time of payment is legal tender for the payment of public and private debts,
at the office or agency of the Company in Cincinnati, Ohio, or, at the option of the Holder
thereof, at the office or agency of the Company in the Borough of Manhattan, the City of New York,
State of New York, except that interest on the Bonds of Series Due 2019 may be paid, at the option
of the Company, by check or draft mailed to the address of the Person entitled thereto as it
appears on the Security Register.



SECTION 4.07. DENOMINATIONS AND NUMBERING OF DEFINITIVE BONDS OF SERIES DUE 2019.




     Definitive Bonds of Series Due 2019 shall be issuable in denominations of $2,000 and multiples
of $1,000 in excess thereof, numbered consecutively from “R-1” upward.



SECTION 4.08. TEMPORARY BONDS OF SERIES DUE 2019 AND EXCHANGE THEREOF.




     Pursuant to the provisions of Section 3.04 of this Indenture, Bonds of Series Due 2019 may be
issued in temporary form, and if temporary bonds be issued, the Company shall, with all reasonable
dispatch, at its own expense and without charge to the holders of the temporary bonds, prepare and
execute definitive Bonds of Series Due 2019 and exchange the temporary bonds for such definitive
bonds in the manner provided for in said Section, provided, however, no presentation or surrender
of temporary Bonds of Series Due 2019 shall be necessary in order for the Holders entitled to
interest thereon to receive such interest.



SECTION 4.09. REDEMPTION PROVISIONS OF THE BONDS OF SERIES DUE 2019.




     (a) The Bonds of Series Due 2019 may be redeemed at the option of the Company, as a whole or
in part at any time, at a redemption price equal to the greater of (1) 100% of the principal amount
of the Bonds of Series Due 2019 to be redeemed and (2) the sum of the present values of the
remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to
the Redemption Date), discounted to the Redemption Date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 0.40% (40 basis points), plus,
in each case, accrued interest to the Redemption Date. For the avoidance of doubt, interest that is
due and payable on an Interest Payment Date for the Bonds of Series Due 2019 falling on or prior to
a Redemption Date therefor will be payable on such Interest Payment Date in accordance with the
Bonds of Series Due 2019 and this Indenture. The Company shall notify the Trustee of the
Redemption Price with respect to any redemption pursuant to this paragraph promptly after the
calculation thereof. The Trustee shall not be responsible for calculating said Redemption Price.



     (b) For purposes of this Section, except as otherwise expressly provided or unless the context
otherwise requires:



-51-









 





     “Business Day” means any day other than a day on which banks in New York City are required or
authorized to be closed.



     “Comparable Treasury Issue” means the United States Treasury security or securities selected
by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining
term of the Bonds of Series Due 2019 to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new issues of corporate
debt securities of a comparable maturity to the remaining term of the Bonds of Series Due 2019.



     “Comparable Treasury Price” means, with respect to any Redemption Date for the Bonds of Series
Due 2019, (A) the average of the Reference Treasury Dealer Quotations for such Redemption Date,
after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the
Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of
all such quotations.



     “Quotation Agent” means one of the Reference Treasury Dealers appointed by the Company.



     “Reference Treasury Dealer” means each of Barclays Capital Inc., Deutsche Bank Securities Inc.
and UBS Securities LLC, plus two other financial institutions appointed by the Company at the time
of any redemption or their affiliates which are primary U.S. Government securities dealers, and
their respective successors; provided, however, that if any of the foregoing or their affiliates
shall cease to be a primary U.S. Government securities dealer in the United States (a “Primary
Treasury Dealer”), the Company shall substitute therefor another Primary Treasury Dealer.



     “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Quotation Agent by the Reference Treasury Dealers at 3:30 p.m.,
New York time, on the third Business Day preceding such Redemption Date.



     “Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the
semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption
Date.



     (c) Notice of any redemption by the Company will be mailed at least thirty (30) days but not
more than sixty (60) days before any Redemption Date to each Holder of Bonds of Series Due 2019 to
be redeemed. If less than all the Bonds of Series Due 2019 are to be redeemed at the option of the
Company, the Trustee shall select, in such manner as it shall deem fair and appropriate, the Bonds
of Series Due 2019 to be redeemed in whole or in part.



-52-









 





     (d) Unless the Company defaults in payment of the Redemption Price therefor, on and after any
Redemption Date therefor, interest will cease to accrue on the Bonds of Series Due 2019 or portions
thereof called for redemption.



     (e) The Company shall indemnify and hold harmless the Trustee from any and all losses, costs,
damages, expenses, fees (including reasonable attorneys’ fees), court costs, judgments, penalties,
obligations, suits, disbursements and liabilities of any kind or character whatsoever which may at
any time be imposed upon, incurred by or asserted against the Trustee by reason of or arising out
of or caused, directly or indirectly, by any act or omission of the Trustee with respect to this
Section 4.09, except for such that would arise out of the gross negligence, willful misconduct or
bad faith of the Trustee and except for costs and expenses arising in the ordinary course of the
Trustee’s business.



SECTION 4.10. FORM OF THE BONDS OF SERIES DUE 2019.




     The Bonds of Series Due 2019 and the Trustee’s certificate to be endorsed thereon shall be
substantially in the following form:



[The remainder of this page has been left blank intentionally.]




-53-









 








(Form of Bond of Series Due 2019)




     [Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (“DTC”), to issuer or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any payment is made to Cede
& Co. or to such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered holder hereof, Cede & Co., has an interest herein.]1



			
	 	 	 
	No. R-

CUSIP No: 26442E AA 8

ISIN: US26442EAA82
	 	$_________






Duke Energy Ohio, Inc.

First Mortgage Bond, 5.45% Series,

Due April 1, 2019




     Duke Energy Ohio, Inc., an Ohio corporation (hereinafter called the “Company”), for value
received, hereby promises to pay to _______________, or registered assigns, the principal sum of
___________________________
Dollars ($   ) on the first day of April, 2019 and to pay interest on
said sum from the date hereof or from the most recent date to which interest has been paid or duly
provided for, until said principal sum is paid or made available for payment, at the rate of 5.45%
per annum, payable semi-annually on the first day of April and October in each year, commencing
October 1, 2009 (each such date herein called an “Interest Payment Date”). Both the principal of
and the interest on this bond shall be payable in any coin or currency of the United States of
America which at the time of payment is legal tender for the payment of public and private debts at
the office or agency of the Company in Cincinnati, Ohio, or, at the option of the registered owner
hereof, at the office or agency of the Company in the Borough of Manhattan, the City of New York,
State of New York, except that interest on this bond may be paid, at the option of the Company, by
check or draft mailed to the address of the Person entitled thereto as it appears on the Security
Register.



     This bond is one of the Securities of the Company issued and to be issued from time to time
under and in accordance with and all secured by a First Mortgage Indenture, dated as of August 1,
1936, from the Company to The Bank of New York Mellon Trust Company, N.A., as successor Trustee
(which indenture as amended by all supplemental indentures is hereinafter referred to as the
“Indenture”). Said Trustee or its successor in trust under the Indenture is hereinafter sometimes
referred to as the “Trustee.” Reference is hereby made to the Indenture for a description of the
property mortgaged and pledged and the nature and extent of the security for said Securities.
Capitalized terms not otherwise defined herein have the meanings specified therefor in the
Indenture. By the terms of the Indenture, the Securities secured thereby are issuable in series
which may vary as to date, amount, date of maturity, rate of interest and in other respects as in
the Indenture provided.





 




			
	1	 	This should be included only if the Bonds of Series
Due 2019 are being issued in global form.




-54-









 










     This bond is one of a series designated as “First Mortgage Bonds, 5.45% Series, Due April 1,
2019” (hereinafter referred to as the “Bonds of Series Due 2019”) of the Company issued under and
secured by the Indenture and created by a Fortieth Supplemental Indenture, dated as of March 23,
2009, which Supplemental Indenture also amends and restates in its entirety the Indenture.



     Subject to certain exceptions provided in the Indenture, the interest payable on any Interest
Payment Date shall be paid to the Person in whose name this bond shall be registered at the close
of business on the Regular Record Date (hereinafter defined) or, in the case of Defaulted Interest
therefor, in the manner and to the person as provided in the Indenture. If any Interest Payment
Date should fall on a day that is not a Business Day, then the interest payment shall be made on
the next succeeding Business Day and no interest shall accrue for the intervening period with
respect to the payment so deferred.



     The term “Regular Record Date” shall mean, with respect to any Interest Payment Date for any
Bonds of Series Due 2019, the close of business on the fifteenth (15th) calendar day next preceding
the respective Interest Payment Date (whether or not a Business Day); provided, however, that so
long as the Bonds of Series Due 2019 are held by a Depository in the form of one or more Global
Securities, the Regular Record Date with respect to each Interest Payment Date will be the close of
business on the Business Day before the applicable Interest Payment Date.



     The Bonds of Series Due 2019 may be redeemed at the option of the Company, as a whole or in
part at any time, at a Redemption Price equal to the greater of (1) 100% of the principal amount of
the Bonds of Series Due 2019 to be redeemed and (2) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (exclusive of interest accrued to the
Redemption Date), discounted to the Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 0.40% (40 basis points), plus, in the
case of each of clause (1) and (2), accrued and unpaid interest, if any, to the Redemption Date.
For the avoidance of doubt, interest that is due and payable on an Interest Payment Date falling on
or prior to a Redemption Date therefor will be payable on such Interest Payment Date in accordance
with the Bonds of Series Due 2019 and the Indenture.



     Notice of any redemption by the Company will be mailed at least thirty (30) days but not more
than sixty (60) days before any Redemption Date to each Holder of Bonds of Series Due 2019 to be
redeemed. If less than all the Bonds of Series Due 2019 are to be redeemed at the option of the
Company, the Trustee shall select, in such manner as it shall deem fair and appropriate, the Bonds
of Series Due 2019 to be redeemed..



     The Bonds of Series Due 2019 are not otherwise redeemable prior to their maturity.



     Unless the Company defaults in payment of the Redemption Price, on and after any Redemption
Date for the Bonds of Series Due 2019, interest will cease to accrue on the Bonds of Series Due
2019 or portions thereof called for redemption.



-55-









 





     In the case of any of certain Events of Default specified in the Indenture, the principal of
this bond may be declared or may become due and payable prior to the stated date of maturity hereof
in the manner and with the effect provided in the Indenture.



     No recourse shall be had for the payment of the principal of or interest on this bond, or for
any claim based hereon, or otherwise in respect hereof or of the Indenture, to or against any
incorporator, shareholder, officer or director, past, present or future, of the Company or of any
predecessor or successor company, either directly or through the Company or such predecessor or
successor company, under any constitution or statute or rule of law, or by the enforcement of any
assessment or penalty, or otherwise, all such liability of incorporators, shareholders, directors
and officers being waived and released by the registered owner hereof by the acceptance of this
bond and being likewise waived and released by the terms of the Indenture.



     The Bonds of Series Due 2019 are issuable only in registered form without coupons. This bond
is transferable by the registered owner hereof, in person or by an attorney duly authorized, at the
Corporate Trust Office of The Bank of New York Mellon Trust Company, N.A., the Trustee, or its
successor in trust under the Indenture, or, at the option of the registered owner, at the office or
agency of the Company in the Borough of Manhattan, the City of New York, State of New York, upon
the surrender and cancellation of this bond, and upon any such transfer a new registered Security
or Securities of the same series and maturity date and for the same aggregate principal amount will
be issued to the transferee in exchange herefor.



     The Bonds of Series Due 2019 are issuable in denominations of $2,000 and multiples of $1,000
in excess thereof. In the manner and subject to the limitations provided in the Indenture, Bonds of
Series Due 2019 are exchangeable as between authorized denominations, upon presentation thereof for
such purpose by the registered owner, at the Corporate Trust Office of The Bank of New York Mellon
Trust Company, N.A., the Trustee, or its successor in trust under the Indenture, or, at the option
of the registered owner, at the office or agency of the Company in the Borough of Manhattan, the
City of New York, State of New York.



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



     This bond shall not be valid or become obligatory for any purpose unless and until it shall
have been authenticated by the execution by the Trustee, or its successor in trust under the
Indenture, of the certificate endorsed hereon.



[The remainder of this page has been left blank intentionally.]




-56-









 








     In Witness Whereof, Duke Energy Ohio, Inc. has caused this bond to be executed in its
name by the manual or facsimile signature of an Authorized Officer.



Dated as of:




	 	 	 	 	 
	 	Duke Energy Ohio, Inc.

 	 
	 	By  	 	 
	 	 	Authorized Officer 	 



TRUSTEE’S CERTIFICATE OF AUTHENTICATION





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



	 	 	 	 	 
	 	The Bank of New York Mellon Trust Company, N.A.,
as Trustee
 	 
	 	 	 	 
	 	By  	 	 
	 	 	Authorized Signatory 	 



[End of Article Four]




-57-









 








ARTICLE FIVE.




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 40 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 which are subject to the prior compliance with any
restriction or condition on such redemption provided in the terms of such Securities or elsewhere
in this Indenture, 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 such particular series or Tranche, or in the absence of any such provision, 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 portions (equal to any authorized denomination
for Securities of such series or Tranche) of the principal amount of Securities of such series or
Tranche of 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.



     The Trustee shall promptly notify the Company and the Security Registrar 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.



-58-









 





SECTION 5.04. NOTICE OF REDEMPTION.




     Except as otherwise specified as contemplated by Section 3.01 for Securities of any series,
notice of redemption shall be given in the manner provided in Section 1.08 to the Holders of the
Securities to be redeemed not less than 30 days prior to the Redemption Date.



     Except as otherwise specified as contemplated by Section 3.01 for Securities of any series,
all notices of redemption shall state:



     (a) the Redemption Date,



     (b) the Redemption Price (if known),



     (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 or other similar numbers, if any, assigned to such Securities; provided,
however, that such notice may state that no representation is made as to the correctness of CUSIP,
ISIN or other similar numbers, in which case none of the Company, the Trustee or any agent of the
Company or the Trustee shall have any liability in respect of the use of any CUSIP, ISIN or other
similar number or numbers on such notices, and the redemption of such Securities shall not be
affected by any defect in or omission of such numbers, and



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



     Unless otherwise specified with respect to any Securities in accordance with Section 3.01,
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 8.01, 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 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



-59-









 




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.
Except as provided in Section 6.03, notice of any 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 Sections 3.05 and 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.



[End of Article Five]





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ARTICLE SIX.




SINKING FUNDS




SECTION 6.01. APPLICABILITY OF ARTICLE.




     The provisions of this Article shall be applicable to any sinking fund for the retirement of
the Securities of any series, or any Tranche thereof, except as otherwise specified as contemplated
by Section 3.01 for Securities of such series or Tranche.



     The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series, or any Tranche thereof, is herein referred to as a “mandatory sinking fund payment”, and
any payment in excess of such minimum amount provided for by the terms of Securities of any series,
or any Tranche thereof, is herein referred to as an “optional sinking fund payment”. If provided
for by the terms of Securities of any series, or any Tranche thereof, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 6.02. Each sinking fund
payment shall be applied to the redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such Securities.



SECTION 6.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.




     The Company (a) may deliver to the Trustee Outstanding Securities (other than any previously
called for redemption) of a series or Tranche in respect of which a mandatory sinking fund payment
is to be made and (b) may apply as a credit Securities of such series or Tranche which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of such mandatory sinking fund payment
with respect to the Securities of such series; provided, however, that no Securities shall be
applied in satisfaction of a mandatory sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption through operation of
the sinking fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.



SECTION 6.03. REDEMPTION OF SECURITIES FOR SINKING FUND.




     Not less than 40 days prior to each sinking fund payment date for the Securities of any
series, or any Tranche thereof, the Company shall deliver to the Trustee an Officer’s Certificate
specifying:



     (a) the amount of the next succeeding mandatory sinking fund payment for such series or
Tranche;



     (b) the amount, if any, of the optional sinking fund payment to be made together with such
mandatory sinking fund payment;



     (c) the aggregate sinking fund payment; and



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     (d) the portion, if any, of such aggregate sinking fund payment which is to be satisfied by
the payment of cash;



     (e) the portion, if any, of such aggregate sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series or Tranche pursuant to Section 6.02 and stating
the basis for such credit and that such Securities have not previously been so credited, and the
Company shall also deliver to the Trustee any Securities to be so delivered.



     If the Company shall not deliver such Officer’s Certificate and, to the extent applicable, all
such Securities, the next succeeding sinking fund payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory sinking fund payment. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 5.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 5.04. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 5.05 and 5.06.



[End of Article Six]





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ARTICLE SEVEN.




REPRESENTATIONS AND COVENANTS




SECTION 7.01. PAYMENT OF SECURITIES; LAWFUL POSSESSION.




     (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 Execution Date, the Company is lawfully possessed of the Mortgaged Property and has
sufficient right and authority to mortgage and pledge the Mortgaged Property, as provided in and by
this Indenture.



SECTION 7.02. MAINTENANCE OF OFFICE OR AGENCY.




     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 1.08. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, then
payment of such Securities shall be made, registration of transfer or exchange thereof may be
effected and notices and demands in respect of such Securities and this Indenture 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 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
1.08, 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 or an Affiliate of the Company, in which event the
Company or such Affiliate shall perform all functions to be performed at such office or agency.



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SECTION 7.03. 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 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 Seven; 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.



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     Any money deposited with the Trustee or any Paying Agent, 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 to the extent permitted by law 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 unless the applicable law provides otherwise, 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, may 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 7.04. CORPORATE EXISTENCE.




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



SECTION 7.05. ANNUAL OFFICER’S CERTIFICATE AS TO COMPLIANCE.




     Not later than October 1 in each year, commencing October 1, 2009, the Company shall deliver
to the Trustee an Officer’s Certificate which need not comply with the requirements of Section
1.04, 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, and making any other
statements as may be required by the provisions of Section 314(a)(4) of the Trust Indenture Act.



SECTION 7.06. WAIVER OF CERTAIN COVENANTS.




     The Company may omit in any particular instance to comply with any term, provision or
condition set forth in (a) Section 7.02 or any additional covenant or restriction specified with
respect to the Securities of any series, or any Tranche thereof, as contemplated by Section 3.01,
if before the time for such compliance the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches with respect to which compliance with Section
7.02 or such additional 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 and (b) Section 7.04, 7.05 or Article Twelve if before the
time for such compliance the Holders of 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 the case of (a) or
(b), no such waiver shall extend to or affect such term, provision or condition



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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.




 [End of Article Seven]





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ARTICLE EIGHT.




SATISFACTION AND DISCHARGE




SECTION 8.01. SATISFACTION AND DISCHARGE OF SECURITIES.




     Any Security or Securities, or any portion of the principal amount thereof, shall be deemed to
have been paid and no longer Outstanding for all purposes of this Indenture, and the entire
indebtedness of the Company in respect thereof shall be deemed to have been 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 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 in the written opinion of a firm of independent certified public accountants delivered
to the Trustee, or



     (c) a combination of (a) or (b) which shall be sufficient in the opinion of such firm, to pay
when due the principal of and premium, if any, and interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity; 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 Trustee as provided herein and, in
the case of a redemption of all or less than all the Securities of any series or Tranche, 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 8.03;




     (y) an Officer’s Certificate and Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the deemed payment and, if the Officer’s
Certificate described in clause (z) below shall have been delivered, satisfaction and
discharge of such Securities have been complied with; and




     (z) if the Company intends such deposit to satisfy and discharge its indebtedness in
respect of such Securities or portions thereof prior to the Maturity of such Securities or
portion thereof, 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.



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     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
receipt of a Company Request, acknowledge in writing that the Security or Securities or portions
thereof with respect to which such deposit was made 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)
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 benefits provided by this Indenture, the
Lien of this Indenture, or any of the covenants of the Company under Article Seven (except the
covenants contained in Sections 7.02 and 7.03) or any other covenants made in respect of such
Securities or portions thereof as contemplated by Section 3.01 or Section 13.01(b), 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 the Holders of
such Securities or portions thereof shall continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; 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 or prior to 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 Trustee 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, 7.02, 7.03, 10.07 and 10.15 and this Article
shall survive such deemed payment and any related satisfaction and discharge.



     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.



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     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 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, (i) 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, or (ii) 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, 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 7.03.



SECTION 8.02. 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;



     (b) the Company has paid or caused to be paid, or made provision acceptable to the Trustee for
payment of, all other sums payable hereunder by the Company; and



     (c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each containing the statements required by Section 1.04;


provided, however, that if, in accordance with the last paragraph of Section 8.01, 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 anything to the contrary expressed or implied in this Indenture, the fact that
no Securities are Outstanding hereunder at any particular time and that the Company has paid or
caused to be paid, or made provision acceptable to Trustee for payment of, all other sums payable
hereunder by the Company, shall not operate to render void this Indenture, or any amendment or
supplement hereto, nor will the same be deemed a release, satisfaction or discharge of this
Indenture, or any amendment or supplement hereto. This Indenture, as amended and supplemented,
shall remain in full force until recordation of appropriate instrument(s) of satisfaction and
discharge executed by the Trustee in accordance with this



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Section following a Company Request and the Company’s delivery of the Officer’s Certificate and
Opinion of Counsel set forth in paragraph (c) above.



     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, 7.02, 7.03, 10.07 and 10.15
and this Article shall survive such satisfaction and discharge.



     Upon satisfaction and discharge of this Indenture as provided in this Section, the Trustee
shall assign, transfer and turn over to the Company, subject to the lien provided by Section 10.07,
any and all money, securities and other property then held by the Trustee for the benefit of the
Holders of the Securities (other than money and Eligible Obligations held by the Trustee pursuant
to Section 8.03) and shall execute and deliver to the Company such instruments as, in the judgment
of the Company, shall be necessary, desirable or appropriate to effect or evidence the satisfaction
and discharge of this Indenture.



SECTION 8.03. APPLICATION OF TRUST MONEY.




     Neither the Eligible Obligations nor the money deposited pursuant to Section 8.01, 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, and interest, if any, on the Securities or portions of principal amount thereof in respect of
which such deposit was made, all subject, however, to the provisions of Section 7.03; provided,
however, that so long as there shall not have occurred and be continuing an Event of Default, 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 be invested in
Eligible Obligations of the type described in clause (b) in the first paragraph of Section 8.01
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, in the written opinion
of a firm of independent certified public accountants delivered to the Trustee, to pay when due the
principal of and premium, if any, and interest, if any, 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 any trust, lien or pledge under
this Indenture (except the lien provided by Section 10.07); and provided, further, that, so long as
there shall not have occurred and be continuing an Event of Default, 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, then due on such Securities shall be
paid over to the Company free and clear of any trust, lien or pledge under this Indenture (except
the lien provided by Section 10.07); 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 until such Event of Default shall have been waived or cured.



     At any time before or after depositing any money or Eligible Obligations with the Trustee
under this Article, the Company may by written notice to the Trustee irrevocably waive any or all
of its rights (1) to any residual interest in such money or Eligible Obligations, including any
interest earned or excess amounts, (2) to instruct the Trustee to sell or purchase Eligible
Obligations or otherwise invest money or proceeds held in trust pursuant to this Section, (3) to



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provide investment advice to the Trustee with respect to such money or Eligible Obligations,
(4) to provide to the Trustee instructions or advice of counsel for the Company as to matters
arising in connection with the Trustee’s servicing of the trust established pursuant to this
Section with respect to such money or Eligible Obligations, or (5) to any involvement with such
money, Eligible Obligations or the trust established pursuant to this Section.



[End of Article Eight]




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ARTICLE NINE.




EVENTS OF DEFAULT; REMEDIES




SECTION 9.01. EVENTS OF DEFAULT.




     “Event of Default” means any one of the following events:



     (a) failure to pay any interest on any Security when it becomes due and payable and
continuance of such default for a period of 30 days; provided, however, that no such default shall
constitute an “Event of Default” if the Company has made a valid extension of the interest payment
period with respect to the Securities of the series of which such Security is a part, if so
provided as contemplated by Section 3.01; or



     (b) failure to pay the principal of or premium, if any, on any Security when it becomes due
and payable; provided, however, that no such default shall constitute an “Event of Default” if the
Company has made a valid extension of the Maturity of the Securities of the series of which such
Security is a part, if so provided as contemplated by Section 3.01; 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 addressed) and continuance of such default or breach for a
period of 90 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 35% in aggregate
principal amount of the Outstanding Securities, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder,
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 (1) 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 (2) 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 bankruptcy, insolvency or
similar 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 90 consecutive days;



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     (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 the Company 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 the Company, or the filing
by the Company of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or similar law, or the consent
by the Company 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 the Company of an assignment for the
benefit of creditors, or the admission by the Company 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 of the
Company; or



     (f) any other Event of Default provided for as contemplated by Section 3.01(o).



SECTION 9.02. 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 35% in principal amount of the Outstanding Securities may
declare the principal amount (or, if any of the Securities of such series 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 of the Securities to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and upon receipt by the
Company of notice of such declaration such principal amount (or specified amount) together with
premium, if any, and accrued and unpaid interest 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 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;




     (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;




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



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     (iv) all amounts due to the Trustee under Section 10.07; and



     (b) all Events of Default, other than the non-payment of the principal of Securities of such
series which shall have become due solely by such declaration of acceleration, shall have been
cured or waived as provided in Section 9.13.


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




SECTION 9.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.




     If an Event of Default described in clause (a) or (b) of Section 9.01 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 and be
continuing, the whole amount then due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law, interest on premium, if any, and on
any overdue principal and interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to
the Trustee under Section 10.07.



     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.



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



SECTION 9.04. 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



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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 10.07) 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 10.07.




     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 9.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.




     All rights of action and claims under this Indenture or 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.



SECTION 9.06. APPLICATION OF MONEY COLLECTED.




     Any money or other property collected or received by the Trustee pursuant to this Article, or
otherwise distributable under this Article in respect of the Company’s obligations under this
Indenture, 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 on account of principal
or premium, if any, or interest, if any, upon presentation of the Securities in respect of which or
for the benefit of which such money shall have been collected 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 under Section 10.07;



     Second: To the payment of the amounts then due and unpaid upon the Securities for principal of
and premium, if any, and interest, if any, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if any, and interest, if any,
respectively; 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.



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SECTION 9.07. 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 a majority in aggregate principal amount of the Outstanding Securities
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 indemnity satisfactory to it
against the costs, expenses and liabilities to be incurred in compliance with such request;



     (d) the Trustee for 60 days after its receipt of such notice, request and 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 60-day period by the Holders of a majority in aggregate principal amount of the
Outstanding Securities;


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




SECTION 9.08. 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 9.09. 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 thereafter all
rights and remedies of the Trustee and such Holder shall continue as though no such proceeding had
been instituted.



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SECTION 9.10. 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.



SECTION 9.11. 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 any 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 9.12. CONTROL BY HOLDERS OF SECURITIES.




     If an Event of Default shall have occurred and be continuing, the Holders of a majority in
principal amount of the Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to such Securities; provided, however, that



     (a) such direction shall not be in conflict with any rule of law or with this Indenture, and
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.



SECTION 9.13. WAIVER OF PAST DEFAULTS.




     The Holders of not less than a majority in principal amount of the Outstanding Securities may
on behalf of the Holders of all the Securities waive any past default hereunder and its
consequences, except a default



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



     (b) in respect of a covenant or provision hereof which under Section 13.02 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



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such waiver shall extend to any subsequent or other default or impair any right consequent
thereon.



SECTION 9.14. UNDERTAKING FOR COSTS.




     The Company and the Trustee agree, and each Holder by his 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 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 9.15. WAIVER OF USURY, STAY OR EXTENSION LAWS.




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



SECTION 9.16. RECEIVER AND OTHER REMEDIES.




     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, to the appointment of a
receiver of the Mortgaged Property and subject to the rights, if any, of others to receive
collections from former, present or future customers of the rents, issues, profits, revenues and
other income thereof, and whether or not any receiver is appointed, the Trustee shall be entitled
to retain possession and control of, and to collect and receive the income from cash, securities
and other personal property held by the Trustee hereunder. In addition, upon the occurrence and
during the continuance of an Event of Default, the Trustee shall be entitled to all remedies
available to mortgagees and secured parties under the Uniform Commercial Code or any other
applicable law.



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SECTION 9.17. 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, subject to the
rights of others, if any, with respect thereto, the rents, issues, profits, revenues and other
income of the Mortgaged 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 9.06. 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, the Trustee shall
surrender possession of the Mortgaged Property to the Company.



SECTION 9.18. 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 9.12 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 9.19. 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:



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     (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;



     (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 or agent 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.



[End of Article Nine]




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ARTICLE TEN.




THE TRUSTEE




SECTION 10.01. CERTAIN DUTIES AND RESPONSIBILITIES.




     (a) The Trustee shall have and be subject to all the duties and responsibilities specified
with respect to an indenture trustee in the Trust Indenture Act and no implied covenants or
obligations shall be read into this Indenture against the Trustee. For purposes of Sections 315(a)
and 315(c) of the Trust Indenture Act, the term “default” is hereby defined as an Event of Default
which has occurred and is continuing.



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



     (c) Notwithstanding anything contained in this Indenture to the contrary, the duties and
responsibilities of the Trustee under this Indenture shall be subject to the protections,
exculpations and limitations on liability afforded to an indenture trustee under the provisions of
the Trust Indenture Act. For the purposes of Sections 315(b) and 315(d)(2) of the Trust Indenture
Act, the term “responsible officer” is defined as a Responsible Officer (as herein defined).



     (d) 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 10.02. NOTICE OF DEFAULTS.




     The Trustee shall give notice of any default hereunder known to the Trustee in the manner and
to the extent required to do so by the Trust Indenture Act, unless such default shall have been
cured or waived; provided, however, that in the case of any default of the character specified in
Section 9.01(c), no such notice to Holders shall be given until at least 60 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 10.03. CERTAIN RIGHTS OF TRUSTEE.




     Subject to the provisions of Section 10.01 and to the applicable provisions of the Trust
Indenture Act:



     (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;



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     (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 be herein specifically prescribed) 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;



     (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 reasonable security or indemnity 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
10.02) or Event of Default (other than an interest or principal payment default; provided that the
Trustee is the principal Paying Agent) unless either (1) a Responsible Officer of the Trustee shall
have actual knowledge of such default or Event of Default or (2) written notice of such default or
Event of Default shall have been given to the Trustee by the Company or any other obligor on such
Securities, or by any Holder of such Securities;



     (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;



     (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; and



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     (k) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, without limitation, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.



SECTION 10.04. NOT RESPONSIBLE FOR RECITALS, ISSUANCE OF SECURITIES, ETC.




     The recitals contained herein and in the Securities (except the Trustee’s certificates of
authentication) shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correctness. The Trustee makes no
representations as to the value or condition of the Mortgaged Property, the title of the Company to
the Mortgaged Property, the security afforded by the Lien of this Indenture, the validity or
genuineness of any securities deposited with the Trustee hereunder, or the validity or sufficiency
of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the proceeds thereof or any
money paid to the Company hereunder. The Trustee shall not be responsible for perfecting or
maintaining the perfection of any security interest granted to it hereunder or for filing,
re-filing, recording or re-recording any notice or other document in any public office at any time
or times or for seeing to the insurance of the Mortgaged Property or for paying or causing the
payment of any taxes owing in connection therewith.



SECTION 10.05. MAY HOLD SECURITIES.




     Each of the Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 10.08 and 10.13, may otherwise deal with the Company
with the same rights it would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.



SECTION 10.06. 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.



SECTION 10.07. COMPENSATION AND REIMBURSEMENT.




     The Company shall



     (a) pay to the Trustee from time to time reasonable compensation 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 reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable



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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 the Trustee’s
negligence, willful misconduct or bad faith; and



     (c) indemnify the Trustee for, and hold it harmless from and against, any loss, liability or
expense (including under environmental laws) reasonably incurred by it arising out of or in
connection with the acceptance or administration of the trust or trusts hereunder or the
performance of its duties hereunder, including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder except to the extent any such loss, liability or expense may be
attributable to its negligence, willful misconduct or bad faith.



     As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon the Mortgaged Property and all property and
funds held or collected by the Trustee as such, other than property and funds held in trust under
Section 8.03 (except moneys payable to the Company as provided in Section 8.03).



     In addition and without prejudice to the rights provided to the Trustee under any of the
provisions of this Indenture or under applicable law, when the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 9.01(d) or Section 9.01(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
and State bankruptcy, insolvency or other similar law.



     The Company’s obligations under this Section 10.07 and the Lien referred to in this Section
10.07 shall survive the resignation or removal of the Trustee, the discharge of the Company’s
obligations under Article Eight of this Indenture and/or the termination of this Indenture.



     “Trustee” for purposes of this Section 10.07 shall include any predecessor Trustee; provided,
however, that the negligence, willful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.



SECTION 10.08. 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 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 from its capacity as trustee in
respect of the Securities of any other series issued under this Indenture. 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.



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SECTION 10.09. 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 of America,
any State thereof or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal, State or District of Columbia authority; 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 $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. 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 and the Trust
Indenture Act, it shall resign immediately in the manner and with the effect hereinafter specified
in this Article.



SECTION 10.10. 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 10.11.



     (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 10.11 shall not have been
delivered to the resigning or removed Trustee within 30 days after the giving of such notice of
resignation or receipt by the Trustee of notice of such removal, 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 Outstanding Securities delivered to the Trustee and the Company.



     (d) If at any time:




     (i) the Trustee shall fail to comply with Section 10.08 after written request therefor
by the Company or by any Holder who has been a bona fide Holder for at least six months, or



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     (ii) the Trustee shall cease to be eligible under Section 10.09 or Section 310(a) of
the Trust Indenture Act 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 Board Resolutions may remove the Trustee with respect to all Securities or (y)
subject to Section 9.14, any Holder who has been a bona fide Holder for at least six months
may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities 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 by clause (y) in
subsection (d) or this Section), the Company, by Board Resolutions, shall promptly appoint a
successor Trustee and shall comply with the applicable requirements of Section 10.11. If, within
one 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
Outstanding Securities 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 10.11, 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
10.11, any Holder who has been a bona fide Holder of a Security for at least six 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, and except with respect to a Trustee
appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, 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 10.11, 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 by the Company pursuant to subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 10.11, all as of such date, and all other
provisions of this Section and Section 10.11 shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with this subsection (f).



     (g) The Company shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee to all Holders of Securities in the manner provided in Section
1.08. Each notice shall include the name of the successor Trustee and the address of its Corporate
Trust Office.



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SECTION 10.11. 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 10.07.



     (b) Upon request of any such successor Trustee, the Company shall execute any instruments for
more fully and certainly vesting in and confirming to such successor Trustee all such 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 10.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.




     Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation 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 10.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.




     If the Trustee shall be or become a creditor of the Company or any other obligor upon the
Securities (other than by reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all applicable provisions of the Trust
Indenture Act regarding the collection of claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act (a) the term “cash transaction” shall have
the meaning provided in Rule 11b-4 under the Trust Indenture Act, and (b) the term
“self-liquidating paper” shall have the meaning provided in Rule 11b-6 under the Trust Indenture
Act.



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SECTION 10.14. CO-TRUSTEE AND SEPARATE TRUSTEES.




     At any time or times, for the purpose of meeting the legal requirements of any applicable
jurisdiction, 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 35% 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 either to act as co-trustee, jointly with the Trustee, or to act as
separate trustee, 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 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 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 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;



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     (d) no co-trustee or separate trustee hereunder shall be personally liable by reason of any
act or omission of the Trustee, or any other such trustee hereunder, and the Trustee shall not be
personally liable by reason of any act or omission of any such co-trustee or separate trustee; 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 10.15. 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 of America, 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 $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 succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section,
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 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 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



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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, 10.04 and 10.05 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.



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., As
Trustee

 	 
	 	By  	[Name of Authenticating Agent],
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 1.04 and need not be accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such 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.



[End of Article Ten]





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ARTICLE ELEVEN.




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




SECTION 11.01. LISTS OF HOLDERS.




     Semiannually, not later than April 1 and October 1 in each year, commencing October 1, 2009
and at such other times as the Trustee may request in writing, the Company shall furnish or cause
to be furnished to the Trustee information as to the names and addresses of the Holders, and the
Trustee shall preserve such information and similar information received by it in any other
capacity and afford to the Holders access to information so preserved by it, all to such extent, if
any, and in such manner as shall be required by the Trust Indenture Act; provided, however, that no
such list need be furnished so long as the Trustee shall be the Security Registrar.



SECTION 11.02. REPORTS BY TRUSTEE AND COMPANY.




     The Trustee shall transmit to the Holders, the Commission and each securities exchange upon
which any Securities are listed, on or before July 1, 2009, and on or before the first day of July
in each year thereafter, a report as of the last preceding fifteenth day of May, with respect to
any events and other matters described in Section 313(a) of the Trust Indenture Act, which may have
occurred within the previous 12 months (but if no event has occurred within such period no report
need be transmitted), in such manner and to the extent required by the Trust Indenture Act. The
Trustee shall transmit to the Holders, the Commission and each securities exchange upon which any
Securities are listed, and the Company shall file with the Trustee (within 30 days after filing
with the Commission in the case of reports which pursuant to Section 314(a) of the Trust Indenture
Act must be filed with the Commission and furnished to the Trustee) and transmit to the Holders,
such information, reports and other documents, if any, at such times and in such manner, as shall
be required by Section 314(a) of the Trust Indenture Act. The Company shall notify the Trustee of
the listing of any Securities on any securities exchange and of any delisting thereof.



     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 notice or constructive notice
of any information contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officer’s Certificates).



     The Company shall file with the Trustee (within thirty (30) days after filing with the
Commission in the case of reports that pursuant to Section 314(a) of the Trust Indenture Act must
be filed with the Commission and furnished to the Trustee) and transmit to the Holders, such
information, reports and other documents, if any, at such times and in such manner, as shall be
required by Section 314(a) of the Trust Indenture Act.



[End of Article Eleven]




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ARTICLE TWELVE.




CONSOLIDATION, MERGER, CONVEYANCE, OR OTHER TRANSFER




SECTION 12.01. 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, as or substantially as an entirety the Mortgaged Property to any
Person, unless:



     (a) 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, as or substantially as an
entirety such Mortgaged Property 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 Company”) 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 express assumption by the Successor Company 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 Company, 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 Company 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,




     (B) at the election of the Successor Company, 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
Company as the Successor Company 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
Company had not been a party to such consolidation, merger, conveyance or other transfer and


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had itself, after the time such transaction became effective, purchased, constructed or otherwise
acquired the property subject to such grant, conveyance, transfer and mortgage;




     (b) in the case of a lease, such lease shall be made expressly subject to termination at any
time during the continuance of an Event of Default, by (i) the Company or the Trustee and (ii) 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;



     (c) 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; and



     (d) immediately after giving effect to such transaction (and treating any debt that becomes an
obligation of the Successor Company as a result of such transaction as having been incurred by the
Successor Company at the time of such transaction), no Default or Event of Default shall have
occurred and be continuing.



     As used in this Article and in Section 17.09(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 12.02. SUCCESSOR COMPANY SUBSTITUTED.




     Upon any consolidation or merger or any conveyance or other transfer of, as or substantially
as an entirety the Mortgaged Property in accordance with Section 12.01, the Successor Company 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 Company had been named as the “Company”
herein. Without limiting the generality of the foregoing:



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



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



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



     All Securities executed by the Successor Company, and authenticated and delivered by the
Trustee, shall in all respects be entitled to the benefit of the Lien of this Indenture equally and



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ratably with all Securities executed, authenticated and delivered prior to the time such
consolidation, merger, conveyance or other transfer became effective.




SECTION 12.03. EXTENT OF LIEN HEREOF ON PROPERTY OF SUCCESSOR COMPANY.




     Unless, in the case of a consolidation, merger, conveyance or other transfer contemplated by
Section 12.01, the indenture supplemental hereto contemplated in Section 12.01 or in Article
Thirteen expressly provides otherwise, 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 Company 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 Company at or after the time of effectiveness of such
transaction;


except, in either case, properties (other than Excepted Property) 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 12.04. RELEASE OF COMPANY UPON CONVEYANCE OR OTHER TRANSFER.




     In the case of a conveyance or other transfer to any Person or Persons as contemplated in
Section 12.01, upon the satisfaction of all the conditions specified in Section 12.01 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) and, upon request by the Company, the Trustee
shall acknowledge in writing that the Company has been so released and discharged.



SECTION 12.05. 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, of any part of the Mortgaged Property which does not
constitute the entirety or substantially the entirety of the Mortgaged Property.



     (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.



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SECTION 12.06. TRANSFER OF LESS THAN SUBSTANTIALLY ALL.



     A conveyance, transfer or lease by the Company of any part of the Mortgaged Property shall not
be deemed to constitute the conveyance, transfer or lease as, or substantially as, an entirety of
the Mortgaged Property for purposes of this Indenture if the Fair Value of the Mortgaged Property
retained by the Company exceeds one hundred fifty percent (150%) of the aggregate principal amount
of all Outstanding Securities and any other outstanding debt of the Company secured by a Purchase
Money Lien that ranks equally with, or senior to, the Securities with respect to such Mortgaged
Property. Such Fair Value shall be established by the delivery to the Trustee of an Independent
Expert’s Certificate stating the Independent Expert’s opinion of such Fair Value as of a date not
more than 90 days before or after such conveyance, transfer or lease. This Article is not intended
to limit the Company’s conveyances, transfers or leases of less than substantially the entirety of
the Mortgaged Property.



[End of Article Twelve]





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ARTICLE THIRTEEN.




SUPPLEMENTAL INDENTURES




SECTION 13.01. 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 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
Twelve; or



     (b) to add one or more covenants of the Company or other provisions for the benefit of the
Holders of the Securities or to surrender any right or power herein conferred upon the Company (and
if such is the case, stating that such covenants are to be in effect for only so long as a
particular series of Securities, or one or more Tranches thereof, shall be Outstanding); or



     (c) to add any additional Events of Default (and if such is the case, stating that such
additional Events of Default are to be in effect for only so long as a particular series of
Securities, or one or more Tranches thereof, shall be Outstanding); 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 Outstanding on the date of such
supplemental indenture in any material respect, such change, elimination or addition shall become
effective with respect to such series or Tranche only pursuant to the provisions of Section 13.02
hereof or when no Security of such series or Tranche remains Outstanding; or



     (e) to provide additional collateral security for the Securities; or



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



     (g) 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



     (h) to evidence and provide for the acceptance of appointment hereunder by a separate or
successor Trustee with respect to the Securities and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by (1) more than one Trustee, pursuant to the requirements of Section 10.14, or (2) a
successor Trustee, pursuant to the requirements of Section 10.11(b); or



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     (i) 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



     (j) 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 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;



     (k) to amend and restate this Indenture, as originally executed and delivered and as it may
have been subsequently amended, in its entirety, but with such additions, deletions and other
changes as shall not adversely affect the interests of the Holders of Securities of any series or
Tranche in any material respect; or



     (l) 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 changes to the
provisions hereof or to add other provisions with respect to matters or questions arising under
this Indenture, provided that such other changes or additions shall not materially adversely affect
the interests of the Holders of Securities of any series or Tranche in any material respect.



     Without limiting the generality of the foregoing, if the Trust Indenture Act as in effect at
the Execution Date or at any time thereafter shall be amended and



     (x) if any such amendment shall require one or more changes to any provisions hereof or the
inclusion herein of any additional provisions, or shall by operation of law be deemed to effect
such changes or incorporate such provisions by reference or otherwise, this Indenture shall be
deemed to have been amended so as to conform to such amendment to the Trust Indenture Act, and the
Company and the Trustee may, without the consent of any Holders, enter into an indenture
supplemental hereto to evidence such amendment hereof; or



     (y) if any such amendment shall permit one or more changes to, or the elimination of, any
provisions hereof which, at the Execution Date or at any time thereafter, are required by the Trust
Indenture Act to be contained herein or are contained herein to reflect any provision of the Trust
Indenture Act as in effect at such date, this Indenture may be amended to effect such changes or
elimination, and the Company and the Trustee may, without the consent of any Holders, enter into an
indenture supplemental hereto to effect such changes or elimination or evidence such amendment.



SECTION 13.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.




     Subject to the provisions of Section 13.01, 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, when authorized by a Board Resolution, 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,



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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 the 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 the Holder of each Outstanding Security of each series or Tranche so
directly affected,




     (a) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security (other than pursuant to the terms thereof), 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 upon the
redemption thereof, or reduce the amount of the principal of a Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 9.02, or
change the coin or currency (or other property), in which any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or



     (b) permit the creation of any Lien ranking prior to the Lien of this Indenture with respect
to the Mortgaged Property or terminate the Lien of this Indenture on the Mortgaged Property or
deprive such Holder of the benefit of the security 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 14.04 for quorum or voting, or



     (d) modify any of the provisions of this Section, Section 7.06 or Section 9.13 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 Holder of each
Outstanding Security affected thereby.



     A supplemental indenture entered into pursuant to this Section which (x) changes or eliminates
any covenant or other provision of this Indenture which is to remain in effect only so long as
there shall be Outstanding, Securities of one or more particular 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.



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     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.



     Anything in this Indenture to the contrary notwithstanding, if the Officer’s Certificate,
supplemental indenture or Board Resolution, as the case may be, establishing the Securities of any
series or Tranche shall provide that the Company may make certain specified additions, changes or
eliminations to or from the Indenture which shall be specified in such Officer’s Certificate,
supplemental indenture or Board Resolution establishing such series or Tranche, (a) the Holders of
Securities of such series or Tranche shall be deemed to have consented to a supplemental indenture
containing such additions, changes or eliminations to or from the Indenture which shall be
specified in such Officer’s Certificate, supplemental indenture or Board Resolution establishing
such series or Tranche, (b) no Act of such Holders shall be required to evidence such consent and
(c) such consent may be counted in the determination of whether or not the Holders of the requisite
principal amount of Securities shall have consented to such supplemental indenture.



SECTION 13.03. 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 10.01) shall be fully protected in
relying upon, an Opinion of Counsel and an Officer’s Certificate stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and containing the statements
required by Section 1.04. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which adversely affects the Trustee’s own rights, duties, immunities or
liabilities under this Indenture or otherwise.



SECTION 13.04. EFFECT OF SUPPLEMENTAL INDENTURES.




     Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby. 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 13.05. CONFORMITY WITH TRUST INDENTURE ACT.




     Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.



SECTION 13.06. 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 Company as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities of any series, or any



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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 13.07. 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 Board Resolution as contemplated by Section 3.01, and not in an indenture
supplemental hereto, additions to, changes in or the elimination of any of such terms may be
effected by means of a supplemental Board Resolution or Officer’s Certificate pursuant to a Board
Resolution or a supplemental indenture and complying with the requirements of Section 1.04, as the
case may be, delivered to, and accepted by, the Trustee in writing; provided, however, that such
supplemental Board Resolution or 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 written acceptance thereof by the Trustee, any
such supplemental Board Resolution or Officer’s Certificate shall be deemed to be effective and
constitute part of the Indenture and a supplemental indenture hereunder, including for purposes of
Section 17.14. Such acceptance shall be conveyed by a written instrument signed by a Responsible
Officer of the Trustee.



[End of Article Thirteen]





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ARTICLE FOURTEEN.




MEETINGS OF HOLDERS; ACTION WITHOUT MEETING




SECTION 14.01. 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 action
provided by this Indenture to be made, given or taken by Holders of Securities of such series or
Tranches.



SECTION 14.02. 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 14.01, to be
held at such time and 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 1.08, not
less than 21 nor more than 180 days prior to the date fixed for the meeting.



     (b) If the Trustee shall have been requested 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 35% in aggregate principal amount of all of such series and Tranches, considered as one class,
for any purpose specified in Section 14.01, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have given the notice of
such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of Securities of such
series and Tranches in the amount above specified, as the case may be, 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 14.03. 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



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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 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 14.04. 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
14.05(e), notice of the reconvening of any meeting adjourned for more than 30 days shall be given
as provided in Section 14.02(a) not less than ten 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 13.02, 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.



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SECTION 14.05. 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 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, the holding of Securities shall be proved in the manner specified in Section 1.06 and
the appointment of any proxy shall be proved in the manner specified in Section 1.06. 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 1.06 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 14.02(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 in person or by proxy at the meeting, considered as one class.



     (d) At any meeting each Holder or proxy shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by him; 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 14.02 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 14.06. 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 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 inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file with



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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 said 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
said notice was given as provided in Section 14.02 and, if applicable, Section 14.04. 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 14.07. 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.



[End of Article Fourteen]




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ARTICLE FIFTEEN.




IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS




SECTION 15.01. 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, shareholder, member, limited partner,
officer, manager or director, as such, past, present or future of the Company or of any predecessor
or successor of the Company (either directly or through the Company or a predecessor or successor
of the Company), 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, shareholder, member,
limited partner, officer, manager or director, past, present or future, of the Company or of any
predecessor or successor of the Company, either directly or indirectly through the Company or any
predecessor or successor of the Company, 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 that any such personal liability is
hereby expressly waived and released as a condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the Securities.



[End of Article Fifteen]




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ARTICLE SIXTEEN.




ISSUANCE OF SECURITIES




SECTION 16.01. GENERAL.




     The Trustee shall authenticate and deliver Securities, for original issue, at one time or from
time to time in accordance with the Company Order referred to below, only pursuant to Section
16.02, 16.03 or 16.04.



SECTION 16.02. 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 an aggregate principal amount not
exceeding sixty-six and two-thirds percent (66-2/3%) 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).



     (b) Securities of any series shall be authenticated by the Trustee on the basis of Property
Additions and delivered in accordance with one or more Company Orders, all without compliance with
any of the conditions, provisions and limitations set forth in Sections 16.03 and 16.04, upon
receipt by the Trustee of:




     (i) the documents with respect to the Securities of such series specified in Section
3.03;




     (ii) an Expert’s Certificate dated as of a date not more than ninety (90) days prior to
the date of the related Company Order,




     (1) describing the property 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;




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




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




     (4) 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;



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     (5) 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 of such Property Additions 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 percent (1%)
of the aggregate principal amount of Securities then Outstanding;




     (6) 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 any thereof with
respect to the Fair Value to the Company of which a statement is to be made in an
Independent Expert’s Certificate pursuant to clause (iii) below;




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




     (8) if any property included in such Property Additions is subject to a Lien of
the character described (I) in clause (f) 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 for the
purposes for which it is held by the Company, or (II) in clause (i)(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 (III) in clause (p)(ii) of the
definition of Permitted Liens, stating that the enforcement of such Lien would not,
in the judgment of the signers, adversely affect the interests of the Company in
such property in any material respect;




     (9) 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 (7) above;




     (10) 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 sixty-six and two-thirds percent (66-2/3%) of the amount stated pursuant
to clause (9) 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
percent (1%) of the aggregate principal amount of Securities then



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




     (iv) Opinion of Counsel to the effect that:




     (1) 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, subject to no Lien thereon prior to the Lien of this
Indenture except Permitted Liens; and




     (2) the Company has corporate authority to operate such Property Additions; and




     (v) copies of the instruments of conveyance, assignment and transfer, if any, specified
in the Opinion of Counsel provided for in clause (iv) above.



SECTION 16.03. 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 by the Trustee on the basis of Retired
Securities and delivered in accordance with one or more Company Orders, all without compliance with
any of the conditions, provisions and limitations set forth in Sections 16.02 and 16.04, upon
receipt by the Trustee of:




     (i) the documents with respect to the Securities of such series specified in Section
3.03; 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.



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SECTION 16.04. 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 not exceeding the amount of, any cash deposited with the Trustee for
such purpose.



     (b) Securities of any series shall be authenticated by the Trustee on the basis of the deposit
of cash and delivered in accordance with one or more Company Orders, all without compliance with
any of the conditions, provisions and limitations set forth in Sections 16.02 and 16.03, upon
receipt by the Trustee of:




     (i) such deposit of cash; and




     (ii) the documents with respect to the Securities of such series specified in Section
3.03.



     (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 to 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 subsection (c) otherwise provided).



     Upon any such application for withdrawal, the Company shall comply with all applicable
provisions of this Article relating to the authentication and delivery of Securities except that
the Company shall not in any event be required to deliver the documents specified in Section 3.03.



     Any withdrawal of cash under this subsection (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; 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.



     (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
17.06.



[End of Article Sixteen]




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ARTICLE SEVENTEEN.




POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY




SECTION 17.01. 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 17.02. 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, scrubbers, 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;



     (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 or
transportation of coal, lignite, gas, oil 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; and



     (d) terminate, abandon, surrender, cancel, release, modify or dispose of any franchises,
licenses or permits that are Mortgaged Property; provided that such action is, in the opinion of
the Company, necessary, desirable or advisable in the conduct of the business of the Company, and;
provided further that any franchises, licenses or permits that become Mortgaged Property by the
operation of the First Granting Clause and thereafter, in the opinion of the Company, cease to be
necessary for the operation of the Mortgaged Property shall automatically cease to be subject to
the Lien of this Indenture, without any release or consent, or report to, the Trustee.



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SECTION 17.03. 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, other than Funded Cash held by the Trustee, 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 or instruments 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 the amount referred to in clause (c)(iii) above exceeds the aggregate
of the following items:




     (i) an amount equal to 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 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
16.02(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;



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     (iii) one hundred fifty percent (150%) of the aggregate principal amount of Securities
to the authentication and delivery of which the Company shall be entitled under the
provisions of Section 16.03, by virtue of compliance with all applicable provisions of
Section 16.03 (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 could have
been 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;




     (iv) any amount in cash and/or an amount equal to 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) one hundred fifty percent (150%) of the aggregate principal amount of any
Outstanding Securities delivered to the Trustee (other than Securities authenticated and
delivered pursuant to Section 16.04); and




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


provided, however, that no obligations secured by Purchase Money Lien upon any property being
released from the Lien hereof shall be used as a credit in connection with such release unless all
obligations secured by such Purchase Money Lien shall be delivered to the Trustee or to the trustee
or other holder of a Lien prior to the Lien of this Indenture;




     (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 16.03, 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 sixty-six and two-thirds percent (66-2/3%) 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,



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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 lower of Cost or 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 16.03 (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
16.03 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 3.03.




     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:



     (x) 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



     (y) 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 (B) that the terms of such Purchase Money Lien, as then in



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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.




     If the Opinion of Counsel provided to the Trustee pursuant to clause (y) above is conditioned
upon the filing and/or recording of any instruments of conveyance, assignment or transfer, the
Company shall promptly cause such instruments to be filed and/or recorded in the proper places and
manner and shall deliver to the Trustee evidence of such filing and/or recording promptly upon
receipt of such evidence by the Company.



     If (a) any property to be released from the Lien of this Indenture under any provision of this
Article (other than Section 17.07) 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, upon receipt of a Company Order, forthwith be canceled by the
Trustee. Any cash and/or obligations deposited with the Trustee pursuant to the provisions of this
Section 17.03, 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 17.06.



     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 17.03 and obtain the release of the
part of such property which does not constitute Funded Property under Section 17.04. In such event,
(a) the application of Property Additions in the release under this Section 17.03 as contemplated
in clause (d)(ii) in the first paragraph thereof shall be taken into account in clause (v) or
clause (vi), whichever may be applicable, of the Expert’s Certificate described in clause (c) in
Section 17.04 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 17.04. RELEASE OF MORTGAGED 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 or instruments to effect such release;



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     (b) an Officer’s Certificate describing the property to be released and 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); and




     (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



     (d) if the Expert’s Certificate required by clause (c) above contains neither of the
statements contemplated in subclause (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 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
subclause (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 17.03 that the Company then elects to
use as a credit under this Section 17.04 (subject, however, to the same limitations and conditions
with respect to such items as are set forth in Section 17.03).



     Any Outstanding Securities delivered to the Trustee pursuant to clause (d) above shall
forthwith be canceled by the Trustee.



SECTION 17.05. RELEASE OF MINOR PROPERTIES.




     Notwithstanding the provisions of Sections 17.03 and 17.04, unless an Event of Default shall
have occurred and be continuing, the Company may obtain the release from the Lien hereof



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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 or instruments to effect such release, and without requiring compliance with any of the
provisions of Section 17.03 or 17.04, release from the Lien hereof all the right, title and
interest of the Trustee in and to the same provided that the lower of the aggregate Cost or Fair
Value of the property to be so released on any date in a given calendar year, together with all
other property theretofore released pursuant to this Section 17.05 in such calendar year, shall not
exceed the greater of (a) Ten Million Dollars ($10,000,000) and (b) three percent (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 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 a Lien 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 17.03, 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 17.03. 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 17.06.




SECTION 17.06. WITHDRAWAL OR OTHER APPLICATION OF FUNDED CASH; PURCHASE MONEY OBLIGATIONS.




     Subject to the provisions of Section 16.04 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 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 16.02(b), delivered to the Trustee; provided, however,



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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 16.03 hereof, by virtue of compliance with all applicable
provisions of Section 16.03 (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 Eight) 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 Five and in such Securities, 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 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
16.03 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 3.03.



     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



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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, upon request by the Company, 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 paid to the Trustee as and when the same become payable. 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
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:



     (x) 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



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     (y) 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 as shall be selected by the Company and specified in
written instructions delivered to the Trustee. 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 as shall be selected by the Company and specified in written instructions delivered to
the Trustee. 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 17.07. 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 or instruments 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 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 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




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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 17.06.




SECTION 17.08. 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 and complying
with the requirements of Section 1.04 of this Indenture.



SECTION 17.09. 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 non-impairment, 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 percent (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 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 percent (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 1.04
and 1.05 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



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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 17.03, 17.04 or 17.05, 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 12.01.



     (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 instrument or instruments of
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.



SECTION 17.10. PRESERVATION OF LIEN.




     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 Thirteen and Article
Seventeen.



SECTION 17.11. 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 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



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causing the discontinuance of, the operation and maintenance of any portion of the Mortgaged
Property if such discontinuance is in the judgment of the Company desirable in the conduct of its
business; 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 in compliance with the other Sections of this Indenture.



SECTION 17.12. 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 observe and
conform in all material respects to all valid requirements of any Governmental Authority relative
to 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 upon the
Mortgaged Property, or any part thereof, prior to or on parity with the Lien of this Indenture,
other than Permitted Liens; 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 or (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; and provided, further, that nothing in this Section shall prohibit the issuance or other
incurrence of additional indebtedness, or the refunding of outstanding indebtedness, secured by any
Lien prior to the Lien hereof which is permitted under this Section to continue to exist.



SECTION 17.13. INSURANCE.




     (a) The Company shall (i) keep or cause to be kept all the Mortgaged Property 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) Twenty Million Dollars ($20,000,000) and (B)
three percent (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 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) Twenty Million Dollars ($20,000,000) and (Y)



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three percent (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 in respect
of such loss or paid to the trustee or other holder of any 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 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 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)
Twenty Million Dollars ($20,000,000) and (B) three percent (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 percent (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 any Lien 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 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, 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;




     (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



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     (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




     (a) 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




     (b) 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 percent (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.



     Any such moneys not so applied within thirty-six (36) 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 thirty-six (36) 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
17.06; provided, however, that if the amount of such moneys shall exceed the amount stated pursuant
to clause (B) in the Expert’s Certificate referred to above, the amount of such excess shall not be
deemed to be Funded Cash, shall not be subject to Section 17.06 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 17.06.



     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 17.13.



     (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 the requirements of any
Lien 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;



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     (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 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 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 17.14. RECORDING, FILING, ETC.




     The Company shall cause this Indenture 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 to perfect and maintain the
perfection of any security interest granted to the Trustee hereunder or thereunder, and shall
furnish to the Trustee:



     (a) promptly after the execution and delivery of this Indenture 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, resolution, certificate, 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 to perfect



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any security interest granted to the Trustee hereunder or thereunder, 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 or to perfect such security interest. 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, resolution, certificate notice, memorandum or financing statement in 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 (if such is the case), such receipt
for record or filing makes effective the Lien intended to be created by this Indenture or such
supplemental indenture or perfects such security interest, and (ii) such opinion is delivered to
the Trustee within such time, following the Execution Date or the date of execution and delivery of
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, resolution, certificate, notice, memorandum or financing statement in connection
therewith) is required to be recorded or filed; and



     (b) on or before October 1 of each year, beginning October 1, 2009, 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, resolution, certificate, notice, memorandum or
financing statement in connection therewith), as is necessary to maintain the effectiveness of the
Lien hereof and to maintain the perfection of any security interest granted to the Trustee
hereunder, and reciting such action, or (ii) that in the opinion of such counsel no such action is
necessary to maintain the effectiveness of such Lien or the perfection of such security interest.



     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.



     This Indenture is a “utility mortgage” as defined in Ohio Revised Code Section 1701.66 and, as
more fully set forth in the Second Granting Clause above, is intended to encumber after-acquired
property.



     This Indenture constitutes a fixture filing within the meaning of Ohio Revised Code Section
1309.502 and covers goods which are or may become fixtures related to the real property encumbered
by this Indenture and any amendments or supplements hereto.



[End of Article Seventeen]




 






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



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



	 	 	 	 	 
	 	Duke Energy Ohio, Inc.

 	 
	 	By  	/s/
M. Allen Carrick 	 
	 	 	M. Allen Carrick 	 
	 	 	Assistant Treasurer 	 



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	 	The Bank of New York Mellon Trust Company, N.A.,
as Trustee

 	 
	 	By  	/s/
Van K. Brown 	 
	 	 	Van K. Brown 	 
	 	 	Vice President 	 



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Acknowledged and agreed solely as to the

matters set forth in clauses (a) and (d) of

the “Recitals of the Company”:




	 	 	 	 	 
	The Bank of New York Mellon, 

as Resigning Trustee

 	 	 
	By  	/s/
Kimberly P. Davidson 	 	 
	 	Kimberly P. Davidson 	 	 
	 	Vice President 	 	 



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	State of North Carolina

	 	)
	 

	 	) ss:
	County of Mecklenburg 

	 	)






     
Be It Remembered, that
on this 23rd day of March, 2009, before me, the undersigned,
a notary public in and for the County and State aforesaid, duly commissioned and qualified,
personally appeared M. Allen Carrick, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, and personally known to me to be an Assistant Treasurer of
Duke Energy Ohio, Inc., an Ohio corporation, and acknowledged that he signed and delivered said
instrument as his free and voluntary act as such Assistant Treasurer, and as the free and voluntary
act of said Duke Energy Ohio, Inc., for the uses and purposes therein set forth; in pursuance of
the power and authority granted to him by resolution of the Board of Directors of said Company.



     In Witness Whereof, I have hereunto set my hand and affixed my notarial seal the day
and year aforesaid.



(Notarial Seal)




	 	 	 	 	 
	 	 	 
	 	  	/s/
Heather Paige Blum
 	 
	 	 	Notary Public 	 
	 	 	 	 



My
commission expires 1/9/2013



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	State of Georgia

	 	)
	 

	 	) ss:
	County of Fulton

	 	)






     
Be It Remembered, that on this ___ day of March, 2009, before me, the undersigned, a
notary public in and for the County and State aforesaid, duly commissioned and qualified,
personally appeared Van K. Brown, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, and personally known to me to be a Vice President of The
Bank of New York Mellon Trust Company, N.A., a national banking association, and acknowledged that
he signed and delivered said instrument as his free and voluntary act as such Vice President, and
as the free and voluntary act of said The Bank of New York Mellon Trust Company, N.A., for the uses
and purposes therein set forth; in pursuance of the power and authority granted to him by the
bylaws of said association.



     In Witness Whereof, I have hereunto set my hand and affixed my notarial seal the day
and year aforesaid.



(Notarial Seal)




	 	 	 	 	 
	 	 	 
	 	  	/s/
Inna Rueve 	 
	 	 	Notary Public 	 
	 	 	 	 
	 




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EXHIBIT A




RECORDING DATA




DUKE ENERGY OHIO, INC.

(formerly The Cincinnati Gas & Electric Company)




MORTGAGE AND SUPPLEMENTAL INDENTURES





A-1









 








EXHIBIT B




REAL PROPERTY ACQUIRED BETWEEN DECEMBER 1, 1985,

THE DATE OF THE TWENTY-FIFTH SUPPLEMENTAL INDENTURE,

AND THE DATE OF THIS FORTIETH SUPPLEMENTAL INDENTURE





B-1









 








EXHIBIT C




SCHEDULE OF REAL PROPERTY HOLDINGS





C-1









 







This instrument was prepared by:




Bradley C. Arnett, Esq.

Frost Brown Todd LLC

2200 PNC Center

201 East Fifth Street

Cincinnati, Ohio 45202