As filed with the Securities and Exchange Commission on November 22, 1996.
Registration No. 33-66116
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
UNION ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
State of Missouri 43-0559760
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1901 Chouteau Avenue, St. Louis, Missouri 63103
(314) 621-3222
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
DONALD E. BRANDT,
Senior Vice President
Finance and Corporate Services
JAMES C. THOMPSON, Secretary
UNION ELECTRIC COMPANY
1901 Chouteau Avenue, St. Louis, Missouri 63103
314-621-3222
(Name, address, including zip code, and telephone number,
including area code, of agents for service)
---------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of the registration statement as determined by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
<PAGE>
<TABLE>
<CAPTION>
---------------
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed maximum Proposed maximum
Title of each class Amount to offering price aggregate Amount of
of securities to be registered be registered per unit<F1> offering price<F1> registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
First Mortgage Bonds and Debt
<S> <C> <C> <C> <C>
Securities............................ $310,000,000 100% $310,000,000 $96,875 <F2>
====================================================================================================================================
<FN>
<F1> Estimated solely for purpose of calculating the registration fee.
<F2> This filing fee was paid at the time of the initial filing of this
registration statement and no further fee is required.
</FN>
</TABLE>
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
prospectus filed as part of this registration statement will be used as a
combined prospectus in connection with this registration statement and
registration statement Nos. 33-45008 and 33-52914. Prior to the filing of this
post-effective amendment to the registration statement, $225,000,000 aggregate
principal amount of securities remained registered and unsold under this
registration statement and registration statement Nos. 33-45008 and 33-52914.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED NOVEMBER 22, 1996
PROSPECTUS
- ----------
$225,000,000
UNION ELECTRIC COMPANY
First Mortgage Bonds
Debt Securities
--------------------
Union Electric Company (the "Company") intends to offer from time to
time, in one or more transactions, up to $225,000,000 aggregate principal amount
of First Mortgage Bonds (the "New Bonds") and other debt securities (the "New
Debt Securities", and together with the New Bonds, the "Securities") or any
combination thereof, in one or more series at prices and on terms to be
determined at the time or times of sale. The aggregate principal amount, rate of
interest (which may be fixed or variable) or method of calculation thereof,
interest payment dates, maturity, initial public offering price, provision of
security, any terms for redemption, any sinking fund provisions, any
subordination or interest deferral provisions (in the case of the New Debt
Securities only), the names of any underwriters or agents, the principal amounts
to be purchased by underwriters, the compensation of such underwriters or agents
and other specific terms of each series of Securities in respect of which this
Prospectus is being delivered (the "Offered Bonds" or the "Offered Debt
Securities", as the case may be, and together, the "Offered Securities") will be
set forth, to the extent applicable, in an accompanying prospectus supplement
(the "Prospectus Supplement"). If applicable to the Offered Securities, the
Prospectus Supplement will also contain information concerning certain United
States federal income tax considerations.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
The Company intends to sell the Securities through underwriters,
dealers, agents or directly to a limited number of purchasers. The names of, and
the principal amounts to be purchased by or through, underwriters, dealers or
agents, if any, the compensation of such persons and other special terms in
connection with the offering and sale of such Offered Securities will be set
forth in the Prospectus Supplement. See "Plan of Distribution" herein.
---------------------
The date of this Prospectus is _____________ __, 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance therewith
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Information as of particular dates concerning directors and
officers, their remuneration, the principal holders of securities of the Company
and any material interest of such persons in transactions with the Company is
disclosed in reports of the Company filed with the Commission. Such reports and
other information can be inspected and copied at the offices of the Commission
at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.; 500
West Madison Street, Suite 1400, Chicago, Illinois; or in the Public Reference
Room, 13th Floor, 7 World Trade Center, New York, New York. Copies of such
material can also be obtained at prescribed rates from the Public Reference
Section of the Commission at its principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such material can also be inspected and copied at the
office of the New York Stock Exchange, 20 Broad Street, New York, New York. The
Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding reporting companies under the
Exchange Act, including the Company, at http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed by the Company with the
Commission pursuant to the Exchange Act (File No. 1-2967), are incorporated
herein by reference:
(1) The Company's Annual Report on Form 10-K for the year
ended December 31, 1995 (the "Form 10-K Annual Report"); and
(2) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1996, June 30, 1996 and September 30, 1996
(the "Form 10-Q Reports").
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering made by this
Prospectus shall be deemed to be incorporated by reference and to be a part
hereof from the date of filing of such documents; provided that all documents so
filed in each year during which the offering made by this Prospectus is in
effect shall not be incorporated herein by reference or be a part hereof from
and after the date of filing of the Company's Annual Report on Form 10-K for
such year.
Any statement contained in a document incorporated herein by reference
shall be deemed to be modified or superseded for all purposes to the extent that
a statement contained herein or in any other subsequently filed document that is
also incorporated by reference modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person
to whom this Prospectus is delivered, on the written or oral request of any such
person, a copy of any or all of the documents incorporated herein by reference,
other than certain exhibits to such documents. Requests for such copies should
be directed to Mr. James C. Thompson, Secretary, Union Electric Company, P.O.
Box 149, St. Louis, Missouri 63166, or telephone (314) 621-3222. The information
relating to the Company contained in this Prospectus does not purport to be
comprehensive and should be read together with the information contained in the
documents incorporated by reference.
Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create an implication that there has been no
change in the affairs of the Company since the date hereof.
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<PAGE>
THE COMPANY
The Company, incorporated in Missouri in 1922, is successor to a number
of companies, the oldest of which was organized in 1881. It is the largest
electric utility in the State of Missouri and supplies electric service in
territories in Missouri and Illinois having an estimated population of 2,600,000
within an area of approximately 24,500 square miles, including the greater St.
Louis Area. Retail gas service is supplied in 90 Missouri communities and in the
City of Alton, Illinois and vicinity. The Company's principal office is at 1901
Chouteau Avenue, St. Louis, Missouri 63103 and its telephone number is (314)
621-3222.
On August 11, 1995, the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") with CIPSCO Incorporated ("CIPSCO") and Ameren
Corporation ("Ameren"), a newly formed entity, 50% owned by the Company and 50%
owned by CIPSCO, pursuant to which, among other things, the Company and CIPSCO
will be merged with Ameren (the "Merger"). Subsequent to the Merger, the Company
and Central Illinois Public Service Company and CIPSCO Investment Company
(wholly owned subsidiaries of CIPSCO), will continue as wholly owned
subsidiaries of Ameren. The holders of the common stock of the Company and
CIPSCO will receive shares of Ameren in the Merger. The Merger is expected to be
tax-free for income tax purposes and will be accounted for under the "pooling of
interests" method of accounting.
After the Merger, Ameren will become a registered public utility
holding company under the Public Utility Holding Company Act of 1935, as
amended. In December 1995, the Merger was approved by the shareholders of the
Company and CIPSCO. However, the Merger is still conditioned upon, among other
things, receipt of certain regulatory and governmental approvals.
Consummation of the Merger will not affect the Company's obligation
with respect to the Securities or its other indebtedness.
USE OF PROCEEDS
As more specifically set forth in the applicable Prospectus Supplement,
the Company proposes to apply the proceeds from the sale of the Offered
Securities to redeem, discharge or refund existing long-term debt or preferred
stock or to reimburse the Company's treasury for expenditures made for such
purposes, or to repay all or a portion of short-term borrowings outstanding.
RATIO OF EARNINGS TO FIXED CHARGES
Twelve Months Ended
1991 1992 1993 1994 1995 September 30, 1996
---- ---- ---- ---- ---- ------------------
4.21 4.66 4.66 4.68 4.78 4.85
For the purpose of computing the ratio of earnings to fixed charges,
earnings consist of net income plus taxes based on income and fixed charges.
Fixed charges consist of interest on debt, amortization of debt discount,
premium and expense, and a portion of rentals which is deemed representative of
the interest factor.
DESCRIPTION OF NEW BONDS
General. The New Bonds are to be issued under the Indenture of Mortgage
and Deed of Trust dated June 15, 1937 between the Company and Boatmen's Trust
Company, as trustee (the "Mortgage Trustee"), as amended and supplemented by
supplemental indentures, including one or more supplemental indentures relating
to the Offered Bonds (collectively, the "Mortgage").
-3-
<PAGE>
The following statements about the Mortgage, the New Bonds and the
mortgage indentures of two of the Company's former utility subsidiaries are
summary outlines of provisions contained therein, do not purport to be complete
and are qualified in their entirety by reference thereto. The specific
references below are to provisions of the Mortgage unless otherwise indicated.
Certain terms used below without definition are defined in the Mortgage. The
term "Bonds" refers to all Bonds (including the New Bonds) issued under the
Mortgage. Copies of the Mortgage (other than supplemental indentures thereto
that only convey property) and the mortgage indentures and supplements and
amendments thereto of two of the Company's former utility subsidiaries are filed
as exhibits to the Registration Statement of which this Prospectus forms a part.
Reference is made to the applicable Prospectus Supplement for a series
of the New Bonds for a description of the following terms of such series of New
Bonds in respect of which this Prospectus is being delivered: (i) the title
(series designation) of such New Bonds; (ii) the date or dates on which the
principal of such New Bonds is payable; (iii) the rate or rates at which such
New Bonds will bear interest; the date or dates from which such interest will
accrue; the dates on which such interest will be payable and the regular record
dates for the interest payable on such interest payment dates; (iv) the bases on
which the New Bonds will be issued; (v) the option, if any, of the Company to
redeem such New Bonds and the periods within which or the dates on which, the
prices at which and the terms and conditions upon which, such New Bonds may be
redeemed; (vi) the obligation, if any, of the Company to redeem or purchase such
New Bonds pursuant to any sinking fund or at the option of the holder and the
terms and conditions upon which such New Bonds will be redeemed pursuant to such
obligation; and (vii) any other terms of such New Bonds not inconsistent with
the provisions of the Mortgage.
The New Bonds are to be issued as registered Bonds without coupons in
denominations of $1,000 or multiples thereof. The New Bonds may be exchanged for
other New Bonds of different authorized denominations and may be transferred
without charge to the holders thereof other than for applicable governmental
taxes. Notwithstanding the foregoing, the Company shall not be required to
transfer or exchange any New Bond (i) during a period beginning at the opening
of business 15 days before any selection of New Bonds to be redeemed and ending
at the close of business on the day notice of redemption is mailed, or (ii)
called or being called for redemption in whole or in part, except, in the case
of any New Bond to be redeemed in part, the portion thereof not so to be
redeemed.
The Company reserves the right to provide in the supplemental indenture
for any Offered Bonds to permit the issuance of such Offered Bonds in book-entry
form. See "Global Securities" herein.
Principal and interest are payable at the office of the Company in St.
Louis, Missouri, provided that, at the option of the Company, interest may be
paid by checks mailed to the registered owners of the New Bonds. Interest, other
than defaulted interest, will be payable to the person in whose name any New
Bond is registered at the close of business on the 15th day of the month next
preceding a month containing an interest payment date (or, if such 15th day
shall be a legal holiday in the State of New York or in the State of Missouri or
a day when banking institutions in the Borough of Manhattan, The City of New
York, or St. Louis, Missouri are authorized by law to close, the next preceding
day which shall not be a legal holiday or a day on which such institutions are
so authorized to close). See also "Global Securities" herein.
There is no improvement, maintenance or analogous fund for the New
Bonds similar to the funds provided for one outstanding series of Bonds. The
holders of the outstanding Bonds will not have any specific contractual
protection in the event the Company becomes involved in a highly leveraged
transaction.
Security. In the opinion of the Vice President and General Counsel of
the Company, the New Bonds will be secured, together with all other Bonds now or
hereafter issued under the Mortgage, by a valid and direct first lien (subject
to certain leases, Permitted Liens and other minor defects) on substantially all
the properties and franchises of the Company other than cash, accounts
receivable and other liquid assets, securities not specifically pledged and
electric energy, materials, supplies or other products produced or purchased by
the Company for use, sale or lease, and certain properties acquired in the 1983
mergers with two former utility subsidiaries, which properties are subject to
the prior liens of their respective indentures.
-4-
<PAGE>
The Mortgage contains provisions subjecting after-acquired property
(with certain exceptions) to the lien of the Mortgage. The indentures of the
merged subsidiaries subject to the prior lien thereof after-acquired property
constituting (with certain exceptions) additions, extensions, improvements,
repairs, and replacements appurtenant to properties acquired in the mergers, and
one such indenture subjects to the lien thereof after-acquired property situated
in the territory formerly served by the former subsidiary.
Issuance of Additional Bonds. Additional Bonds ranking equally with the
New Bonds may be issued up to (i) 60% of the Net Bondable Value of Property
Additions not subject to an Unfunded Prior Lien, (ii) the amount of Bonds
retired or to be retired (except out of trust estate money) or (iii) the amount
of cash deposited with the Mortgage Trustee for such purpose, which cash may
thereafter be withdrawn upon the same basis that additional Bonds are issuable
under (i) and (ii). (Arts. III and VIII.) Unless otherwise stated in the
applicable Prospectus Supplement, the Offered Bonds will be issued against the
deposit of cash, which cash will be concurrently withdrawn under clause (ii)
above. At September 30, 1996, the aggregate principal amount of Bonds issuable
under clause (i) above was approximately $1.2 billion (without giving effect to
the issuance of New Bonds), and approximately $665 million principal amount of
Bonds could be issued under clause (ii) above.
Additional Bonds may not be issued (i) unless Net Earnings of the
Company Available for Interest and Property Retirement Appropriations for 12
consecutive months within the 15 months preceding such issuance shall have been
equal to the greater of twice the annual interest charges on, or 10% of the
principal amount of, all Bonds and Prior Lien Bonds then outstanding and then
being issued, nor (ii) unless Net Earnings of the Company Available for Interest
After Property Retirement Appropriations for such periods shall have been equal
to twice the annual interest on all such Bonds and Prior Lien Bonds. Such
earnings tests need not be complied with to issue Bonds to refund Bonds
theretofore issued, or to refund a Prior Lien which simultaneously becomes a
Funded Prior Lien upon the Property Additions made on the basis of such
application, if application to issue additional Bonds for either of these two
purposes is made at any time after a date two years prior to the maturity of the
Bonds or Prior Lien Bonds being refunded. (Art. III, Secs. 3, 4 and 6;
__________ Supplemental Indenture, Art. IV, Sec. 4.) The ratio under the test
set forth under (ii) above, which is more restrictive than the test set forth
under (i) above, was 6.6 for the twelve months ended September 30, 1996, and
would permit the Company (without giving effect to the issuance of the New
Bonds) to issue an additional $3.0 billion of First Mortgage Bonds (7.5% annual
interest rate assumed). Net Earnings of the Company Available for Interest After
Property Retirement Appropriations is defined as total operating revenues and
net non-operating revenues, less operating expenses (other than income taxes)
and less the greater of (i) the provisions for depreciation and expenditures for
maintenance and repairs for the period in question or (ii) 15% of gross
operating revenues (as defined) for the period in question. [(July 1956
Supplemental Indenture, Art. V, Sec. 2.)]
Prior Lien Bonds secured by an Unfunded Prior Lien (such as bonds
issuable under the indentures of the two former utility subsidiaries discussed
above under "Security") may be issued under the circumstances and subject to the
conditions and limitations contained in the Mortgage and the subsidiaries'
indentures referred to above. (Art. IV, Secs. 15 and 16; __________ Supplemental
Indenture, Art. IV, Sec. 4.) The Company has no plans to issue any such bonds
and is in the process of extinguishing the lien of one of the subsidiaries'
indentures, under which no bonds are outstanding.
Dividend Restriction. There are no dividend restrictions applicable to
the New Bonds. However, so long as Bonds of certain prior series are
outstanding, the Company will not declare any dividend on its Common Stock
(other than in Common Stock) or make any distribution on or acquire for value
any of its Common Stock (otherwise than in exchange for, or out of proceeds of
sale of, Common Stock) if the amount thereof, together with the aggregate of all
payments made since June 30, 1961 would exceed $22,700,000 plus the net income
applicable to the Common Stock subsequent to June 30, 1961. (See, e.g., May 1990
Supplemental Indenture, Art. IV, Sec. 6.)
Modification of the Mortgage. With the consent of the holders of 80% of
the Bonds and 80% in amount of Bonds of each affected series if less than all
are affected, the Mortgage may be changed except to affect the terms of payment
of the principal or interest on any Bond or to reduce the percentage of
Bondholders required to effect any change. (Art. XV.) The Company has reserved
the right to amend the Mortgage without any consent or other action by holders
of Bonds of any series created by the Supplemental Indenture of August 16, 1976,
or by any
-5-
<PAGE>
supplemental indenture dated thereafter, including the holders of the New Bonds,
so as to substitute for the foregoing provision a provision to the effect that
the Mortgage may be modified or altered and the rights of the holders of Bonds
may be affected with the consent of the holders of 60% of the Bonds; and if less
than all series of Bonds are affected, the consent also of the holders of 60% of
the Bonds of each series affected. Additionally, the Company has reserved the
right to amend the Mortgage, as supplemented, to authorize amendments thereto by
an appropriate written consent of the holders of 60% of the Bonds without a
meeting of such Bondholders.
(__________ Supplemental Indenture, Art. VII.)
The Mortgage may be amended without a meeting of Bondholders to cure
ambiguities or defects and may be so modified under certain other circumstances,
provided that no such modification shall impair any of the rights of the
Bondholders or of the Mortgage Trustee.
Insofar as the holders of the Bonds of all series issued subsequent to
the February 1974 Supplemental Indenture, including the New Bonds, are
concerned, the Mortgage is amended by the February 1974 Supplemental Indenture
(Art. VII.) to include construction work in progress on nuclear facilities and
nuclear fuel as bondable property. (__________ Supplemental Indenture, Art. VI.)
Defaults. Defaults are defined as being: default in payment of
principal; default for 30 days in payment of interest or satisfaction of the
Company's obligations respecting any sinking, improvement, maintenance or
analogous fund; default in payment of principal of, or interest on, any Prior
Lien Bonds; certain events in bankruptcy, insolvency or reorganization; default
in other covenants for 60 days after notice by the Mortgage Trustee or the
holders of 15% of the outstanding Bonds; failure under certain circumstances to
discharge, or provide for, judgments; or termination of corporate franchise
without continuance of business by a successor corporation.
(Art. IX, Sec. 1.)
The Mortgage Trustee or the holders of not less than 25% of the
outstanding Bonds may declare the entire principal due on default, but the
holders of a majority of outstanding Bonds may annul such declaration if such
default has been cured. (Art. IX, Sec. 1.) The Mortgage Trustee is required to
enforce the lien of the Mortgage upon request of the holders of a majority in
amount of the outstanding Bonds on default. (Art. IX, Sec. 4.) The Mortgage
Trustee has no obligations to exercise any of its trusts or powers at the
request of any of the Bondholders unless indemnified to its satisfaction, but
the Mortgage Trustee is not relieved of its obligation to act upon the
occurrence of an event of default. (Art. XIII, Sec. 1.)
The Mortgage provides that the Mortgage Trustee, within 90 days after
the occurrence of any default thereunder with respect to a series of New Bonds,
is required to give the holders of such series notice of any default known to
it, unless cured or waived; provided, however, that except in the case of a
default in the payment of principal, interest or any sinking fund installment,
if any, on any New Bonds of such series, the Mortgage Trustee may withhold such
notice if the Mortgage Trustee and the Board of Directors determine that it is
in the interest of such holders to do so. (Art. XIII, Sec. 3.)
Evidence to be Furnished to the Mortgage Trustee. Compliance with
Mortgage provisions is evidenced by written statements by Company officers,
opinions of counsel and certificates of an engineer, accountant, appraiser or
other expert (who in some instances must be independent). The Company is
required to file various certificates and other reports annually, including,
without limitation, an annual certificate evidencing compliance with all
conditions and covenants without regard to any period of grace or notice
requirements, and in certain events.
Concerning the Mortgage Trustee. The Mortgage Trustee under the
Mortgage is Trustee under the Indenture and the trustee under a trust agreement
establishing a pension trust for the payment of retirement income for employees
of the Company. The Mortgage Trustee also serves as trustee for the Company's
Savings Investment Plan and nuclear decommissioning trust. John Peters
MacCarthy, a director of the Company, is also a director of the Mortgage
Trustee.
-6-
<PAGE>
DESCRIPTION OF NEW DEBT SECURITIES
General. The New Debt Securities may be issued in one or more new
series under an Indenture or Indentures (the "Indenture") between the Company
and Boatmen's Trust Company, as trustee (the "Trustee"). The following
statements about the Indenture, one or more supplemental indentures, board
resolutions or officer's certificates establishing the New Debt Securities and
the New Debt Securities (the forms of each of which are filed, or will be filed,
as exhibits to the Registration Statement of which this Prospectus forms a part,
or as an exhibit to a Current Report on Form 8-K to be incorporated by reference
in this Prospectus) are summary outlines of provisions contained therein, do not
purport to be complete and are qualified in their entirety by reference thereto.
Such statements make use of the terms defined in the Indenture and are qualified
in their entirety by express reference to the sections of the Indenture cited
herein.
The New Debt Securities will be unsecured obligations of the Company
and, if so provided in the Prospectus Supplement relating to a particular series
of New Debt Securities, will be subordinated obligations of the Company (the
"Subordinated New Debt Securities"). Except as may otherwise be described in the
Prospectus Supplement, separate Indentures will be used for Subordinated Debt
Securities (the "Subordinated Indenture") and for New Debt Securities that are
not Subordinated New Debt Securities.
Reference is made to the Prospectus Supplement relating to any
particular issue of Offered New Debt Securities for the following terms: (1) the
title of such Offered New Debt Securities; (2) any limit on the aggregate
principal amount of such Offered Debt Securities or the series of which they are
a part; (3) the date or dates on which the principal of any of such Offered Debt
Securities will be payable; (4) the rate or rates (which may be fixed or
variable) and/or the method of determination of such rate or rates at which any
of such Offered Debt Securities will bear interest, if any, the date or dates
from which any such interest will accrue, the Interest Payment Dates on which
any such interest will be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date; (5) the place or places where the
principal of, premium, if any, and interest on any of such Offered Debt
Securities will be payable, (6) the period or periods within which the terms and
conditions upon which any Offered Debt Securities may be redeemed, in whole or
in part, at the option of the Company; (7) the obligation or obligations, if
any, of the Company to redeem or purchase any Offered Debt Securities pursuant
to any mandatory redemption provisions or at the option of the Holder thereof,
and the terms and conditions upon which any Offered Debt Securities shall be
redeemed or purchased; (8) the denominations in which any of Offered Debt
Securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (9) if the amount payable in respect of principal of
or any premium or interest on such Offered Debt Securities may be determined
with reference to an index or other fact or event ascertainable outside the
Indenture, the manner in which such amounts will be determined; (10) if other
than the principal amount thereof, the portion of the principal amount of any
Offered Debt Securities which shall be payable upon declaration of acceleration
of the Maturity thereof; (11) the terms, if any, pursuant to which such Offered
Debt Securities may be converted into or exchanged for shares of capital stock
or other securities of the Company or any other Person; (12) if such Offered
Debt Securities are to be issued in global form, (i) any limitations on the
rights of the Holder or Holders of such Offered Debt Securities to transfer or
exchange the same or to obtain the registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of temporary form and (iii) any
and all other matters incidental to such Offered Debt Securities; (13) any
addition to the Events of Default applicable to such Offered Debt Securities and
any addition to the covenants of the Company for the benefit of the Holders of
such Offered Debt Securities; (14) any interest deferral provisions; and (15)
any other terms of such Offered Debt Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of the Indenture. (Sec. 301.)
New Debt Securities may be sold at a substantial discount below their
principal amount. Certain special United States federal income tax
considerations (if any) applicable to New Debt Securities sold at an original
issue discount may be described in the applicable Prospectus Supplement. In
addition, certain special United States federal income tax or other
considerations (if any) applicable to any New Debt Securities which are
denominated in a currency or currency unit other than Dollars may be described
in the applicable Prospectus Supplement.
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<PAGE>
The Company reserves the right to provide in the supplemental indenture
or board resolutions for any series of Offered Debt Securities to permit the
issuance of such Offered Debt Securities in book-entry form. See "Global
Securities" herein.
Except as may otherwise be described in the Prospectus Supplement, the
covenants contained in the Indenture would not afford Holders of New Debt
Securities protection in the event of a highly-leveraged transaction involving
the Company.
Subordination. If so provided in the applicable Prospectus Supplement,
the Subordinated Debt Securities will be subordinate and junior in right of
payment to all Senior Indebtedness of the Company.
No payment of principal of (including redemption and sinking fund
payments), premium, if any, or interest on, the Subordinated Debt Securities may
be made if any Senior Indebtedness is not paid when due, any applicable grace
period with respect to such default has ended and such default has not been
cured or waived, or if the maturity of any Senior Indebtedness has been
accelerated because of a default. Upon any distribution of assets of the Company
to creditors upon any dissolution, winding-up, liquidation or reorganization,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all principal of, and premium, if any, and interest due or to
become due on, all Senior Indebtedness must be paid in full before the Holders
of the Subordinated Debt Securities are entitled to receive or retain any
payment. (Sec. 1502.) The rights of the Holders of the Subordinated Debt
Securities will be subrogated to the rights of the Holders of Senior
Indebtedness to receive payments or distributions applicable to Senior
Indebtedness until all amounts owing on the Subordinated Debt Securities are
paid in full. (Sec. 1504.)
The term "Senior Indebtedness" is defined in the Subordinated Indenture
to mean obligations (other than non-recourse obligations, the indebtedness
issued under the Subordinated Indenture and other indebtedness which is
expressly made subordinate to or pari passu with the Subordinated Debt
Securities) of, or guaranteed or assumed by, the Company for borrowed money
(including both senior and subordinated indebtedness for borrowed money (other
than the Subordinated Debt Securities)) or for the payment of money relating to
any lease which is capitalized on the balance sheet of the Company in accordance
with generally accepted accounting principles as in effect from time to time, or
indebtedness evidenced by bonds, debentures, notes or other similar instruments,
and in each case, amendments, renewals, extensions, modifications and refundings
of any such indebtedness or obligations, whether existing as of the date of the
Subordinated Indenture or subsequently incurred by the Company.
The Subordinated Indenture does not limit the aggregate amount of
Senior Indebtedness that the Company may issue. As of September 30, 1996,
outstanding Senior Indebtedness of the Company aggregated approximately $1.8
billion.
Form, Exchange, and Transfer. Unless otherwise specified in the
applicable Prospectus Supplement, the New Debt Securities of each series will be
issuable only in fully registered form without coupons and in denominations of
$1,000 and any integral multiple thereof. (Secs. 201 and 302.)
At the option of the Holder, subject to the terms of the Indenture and
the limitations applicable to global securities, New Debt Securities of any
series will be exchangeable for other New Debt Securities of the same series, of
any authorized denomination and of like tenor and aggregate principal amount.
(Sec. 305.)
Subject to the terms of the Indenture and the limitations applicable to
global securities, New Debt Securities may be presented for exchange as provided
above or for registration of transfer (duly endorsed or accompanied by a duly
executed instrument of transfer) at the office of the Security Registrar or at
the office of any transfer agent designated by the Company for such purpose. The
Company may designate itself the Security Registrar. No service charge will be
made for any registration of transfer or exchange of New Debt Securities, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. Such transfer or exchange
will be effected upon the Security Registrar or such transfer agent, as the case
may be, being satisfied with the documents of title and identity of the person
making the request. (Sec. 305.) Any transfer agent (in addition to the Security
Registrar) initially designated by the Company for any New Debt
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Securities will be named in the applicable Prospectus Supplement. The Company
may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any
transfer agent acts, except that the Company will be required to maintain a
transfer agent in each Place of Payment for the New Debt Securities of each
series. (Sec. 602.)
The Company will not be required to (i) issue, register the transfer
of, or exchange any Debt Security or any Tranche thereof during a period
beginning at the opening of business 15 days before the day of mailing of a
notice of redemption of any such Debt Security called for redemption and ending
at the close of business on the day of such mailing or (ii) register the
transfer of or exchange any Debt Security so selected for redemption, in whole
or in part, except the unredeemed portion of any such Debt Security being
redeemed in part. (Sec. 305.)
Payment and Paying Agents. Unless otherwise indicated in the applicable
Prospectus Supplement, payment of interest on a Debt Security on any Interest
Payment Date will be made to the person in whose name such Debt Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest. (Sec. 307.)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the New Debt Securities of a
particular series will be payable at the office of such Paying Agent or Paying
Agents as the Company may designate for such purpose from time to time. Unless
otherwise indicated in the applicable Prospectus Supplement, the Company, at its
office in St. Louis, Missouri, will be designated as the sole Paying Agent for
payments with respect to New Debt Securities of each series. Any other Paying
Agents initially designated by the Company for the New Debt Securities of a
particular series will be named in the applicable Prospectus Supplement. The
Company may at any time designate additional Paying Agents or rescind the
designation of any Paying Agent or approve a change in the office through which
any Paying Agent acts, except that the Company will be required to maintain a
Paying Agent in each Place of Payment for the New Debt Securities of a
particular series. (Sec. 602.)
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Debt Security thereafter may look only to the Company for payment thereof. (Sec.
603.)
Redemption. Any terms for the optional or mandatory redemption of New
Debt Securities will be set forth in the applicable Prospectus Supplement or a
supplement thereto. Except as shall otherwise be provided in the applicable
Prospectus Supplement with respect to New Debt Securities that are redeemable at
the option of the Holder, New Debt Securities will be redeemable only upon
notice by mail not less than 30 nor more than 60 days prior to the date fixed
for redemption, and, if less than all the New Debt Securities of a series, or
any Tranche thereof, are to be redeemed, the particular New Debt Securities to
be redeemed will be selected by such method as shall be provided for any
particular series, or in the absence of any such provision, by such method of
random selection as the Security Registrar deems fair and appropriate. (Secs.
403 and 404.)
Any notice of redemption at the option of the Company may state that
such redemption will be conditional upon receipt by the Paying Agent or Agents,
on or prior to the dated fixed for such redemption, of money sufficient to pay
the principal of and premium, if any, and interest, if any, on such New Debt
Securities and that if such money has not been so received, such notice will be
of no force and effect and the Company will not be required to redeem such New
Debt Securities. (Sec. 404.)
Consolidation, Merger and Sale of Assets. The Company may not
consolidate with or merge into any other person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, unless (i) the
corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the
property and assets of the Company substantially as an entirety shall be a
Person organized and validly existing under the laws of any domestic
jurisdiction and such Person expressly assumes the Company's obligations on the
New Debt Securities and under the Indenture, (ii) immediately after giving
effect to the transaction, no Event of Default, and no event which, after notice
or lapse of time or both,
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would become an Event of Default, shall have occurred and be continuing, and
(iii) the Company will have delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel as provided in the Indenture. (Sec. 1101.)
Events of Default. Unless otherwise specified in the applicable
Prospectus Supplement, each of the following will constitute an Event of Default
under the Indenture with respect to New Debt Securities of any series: (a)
failure to pay any interest on any New Debt Securities of such series within 60
days after the same becomes due and payable; (b) failure to pay principal or
premium; if any, on any Debt Security of such series within three Business Days
after the same becomes due and payable; (c) failure to perform or breach of any
other covenant or warranty of the Company in the Indenture (other than a
covenant or warranty of the Company in the Indenture solely for the benefit of
one or more series of New Debt Securities other than such series) for 60 days
after written notice to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount of the New Debt
Securities of such series outstanding under the Indenture as provided in the
Indenture; (d) certain events of bankruptcy, insolvency or reorganization; and
(e) any other Event of Default specified in the applicable Prospectus Supplement
with respect to New Debt Securities of particular series.
(Sec. 801.)
No Event of Default with respect to the New Debt Securities necessarily
constitutes an Event of Default with respect to the New Debt Securities of any
other series issued under the Indenture.
If an Event of Default with respect to any series of New Debt
Securities occurs and is continuing, then either the Trustee or the Holders of
not less than 33% in principal amount of the Outstanding New Debt Securities of
such series may declare the principal amount (or if the New Debt Securities of
such series are discount notes or similar New Debt Securities, such portion of
the principal amount as may be specified in the applicable Prospectus
Supplement) of all of the New Debt Securities of such series to be due and
payable immediately; provided, however, that if an Event of Default occurs and
is continuing with respect to more than one series of New Debt Securities, the
Trustee or the Holders of not less than 33% in aggregate principal amount of the
Outstanding Debt Securities of all such series, considered as one class, may
make such declaration of acceleration and not the Holders of the Debt Securities
of any one of such series.
At any time after the declaration of acceleration with respect to the
New Debt Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained, the Event or Events of Default
giving rise to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences will,
without further act, be deemed to have been rescinded and annulled, if
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest on all New Debt Securities of such
series;
(2) the principal of and premium, if any, on any New Debt
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such New Debt Securities;
(3) interest upon overdue interest at the rate or rates
prescribed therefor in such New Debt Securities, to the extent that
payment of such interest is lawful; and
(4) all amounts due to the Trustee under the Indenture;
(b) any other Event or Events of Default with respect to the New Debt
Securities of such series, other than the nonpayment of the principal of the New
Debt Securities of such series which has become due solely by such declaration
of acceleration, have been cured or waived as provided in the Indenture. (Sec.
802.)
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Subject to the provisions of the Indenture relating to the duties of
the Trustee in case an Event of Default shall occur and be continuing, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to the Trustee reasonable indemnity. (Sec. 903.)
Subject to such provisions for the indemnification of the Trustee, the Holders
of a majority in principal amount of the Outstanding New Debt Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Debt Securities of that
series. (Sec. 812.)
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the New Debt Securities of such series, (ii) the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Debt Securities of such series have made written request to the
Trustee, and such Holder or Holders have offered reasonable indemnity to the
Trustee to institute such proceeding as trustee and (iii) the Trustee has failed
to institute such proceeding, and has not received from the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of
that series a direction inconsistent with such request, within 60 days after
such notice, request and offer. (Sec. 807.) However, such limitations do not
apply to a suit instituted by a Holder of a Debt Security for the enforcement of
payment of the principal of or any premium or interest on such Debt Security on
or after the applicable due date specified in such Debt Security. (Sec. 808.)
The Company will be required to furnish to the Trustee annually a
statement by an appropriate officer as to such officer's knowledge of the
Company's compliance with all conditions and covenants under the Indenture, such
compliance to be determined without regard to any period of grace or requirement
of notice under the Indenture. (Sec. 606.)
Modification and Waiver. Without the consent of any Holder of New Debt
Securities, the Company and the Trustee may enter into one or more supplemental
indentures for any of the following purposes: (a) to evidence the assumption by
any permitted successor to the Company of the covenants of the Company in the
Indenture and the New Debt Securities; or (b) to add one or more covenants of
the Company or other provisions for the benefit of the Holders of all or any
series of Outstanding Debt Securities or to surrender any right or power
conferred upon the Company by the Indenture; or (c) to add any additional Events
of Default with respect to all or any series of Outstanding Debt Securities; or
(d) to change or eliminate any provision of the Indenture or to add any new
provision to the Indenture, provided that if such change, elimination or
addition will adversely affect the interests of the Holders of New Debt
Securities of any series in any material respect, such change, elimination or
addition will become effective with respect to such series only when there is no
Debt Security of such series remaining Outstanding under the Indenture; or (e)
to provide collateral security for the New Debt Securities; or (f) to establish
the form or terms of New Debt Securities of any series as permitted by the
Indenture; or (g) to evidence and provide for the acceptance of appointment of a
successor Trustee under the Indenture with respect to the New Debt Securities of
one or more series and to add to or change any of the provisions of the
Indenture as shall be necessary to provide for or to facilitate the
administration of the trusts under the Indenture by more than one trustee; or
(h) to provide for the procedures required to permit the utilization of a
noncertificated system of registration for any series of New Debt Securities; or
(i) to change any place where (1) the principal of and premium, if any, and
interest, if any, on any New Debt Securities shall be payable, (2) any New Debt
Securities may be surrendered for registration of transfer or exchange and (3)
notices and demands to or upon the Company in respect of New Debt Securities and
the Indenture may be served; or (j) to cure any ambiguity or inconsistency or to
make or change any other provisions with respect to matters and questions
arising under the Indenture, provided such changes or additions shall not
adversely affect the interests of the Holders of New Debt Securities of any
series in any material respect. (Sec. 1201.)
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Debt Securities of any series may waive compliance by the
Company with certain restrictive provisions of the Indenture. (Sec. 607.) The
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series may waive any past default under the Indenture, except a default in
the payment of principal, premium, or interest and certain covenants
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and provisions of the Indenture that cannot be modified or be amended without
the consent of the Holder of each Outstanding Debt Security of such series
affected. (Sec. 813.)
Without limiting the generality of the foregoing, if the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), is amended after
the date of the Indenture in such a way as to require changes to the Indenture
or the incorporation therein of additional provisions or so as to permit changes
to, or the elimination of, provisions which, at the date of the Indenture or at
any time thereafter, were required by the Trust Indenture Act to be contained in
the Indenture, the Indenture will be deemed to have been amended so as to
conform to such amendment or to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any Holders, enter into one
or more supplemental indentures to evidence or effect such amendment. (Sec.
1201.)
Except as provided above, the consent of the Holders of not less than a
majority in aggregate principal amount of the New Debt Securities of all series
then Outstanding, considered as one class, is required for the purpose of adding
any provisions to, or changing in any manner, or eliminating any of the
provisions of, the Indenture pursuant to one or more supplemental indentures;
provided, however, that if less than all of the series of New Debt Securities
Outstanding are directly affected by a proposed supplemental indenture, then the
consent only of the Holders of a majority in aggregate principal amount of
Outstanding Debt Securities of all series so directly affected, considered as
one class, will be required; and provided, further, that if the New Debt
Securities of any series have been issued in more than one Tranche and if the
proposed supplemental indenture directly affects the rights of the Holders of
one or more, but less than all, such Tranches, then the consent only of the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of all Tranches so directly affected, considered as one class, will
be required; and provided further, that no such amendment or modification may
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Debt Security, or reduce the principal amount
thereof or the rate of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such rate or reduce any
premium payable upon the redemption thereof, or reduce the amount of the
principal of any Discount Security that would be due and payable upon a
declaration of acceleration of Maturity or change the coin or currency (or other
property) in which any Debt 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 of any Debt Security (or, in the case of
redemption, on or after the redemption date) without, in any such case, the
consent of the Holder of such Debt Security, (b) reduce the percentage in
principal amount of the Outstanding Debt 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 the Indenture or any default
thereunder and its consequences, or reduce the requirements for quorum or
voting, without, in any such case, the consent of the Holder of each Outstanding
Debt Security of such series or Tranche, or (c) modify certain of the provisions
of the Indenture relating to supplemental indentures, waivers of certain
covenants and waivers of past defaults with respect to the New Debt Securities
of any series, or any Tranche thereof, without the consent of the Holder of each
Outstanding Debt Security affected thereby. A supplemental indenture which
changes or eliminates any covenant or other provision of the Indenture which has
expressly been included solely for the benefit of one or more particular series
of New Debt Securities or one or more Tranches thereof, or modifies the rights
of the Holders of New Debt Securities of such series or Tranches with respect to
such covenant or other provision, will be deemed not to affect the rights under
the Indenture of the Holders of the New Debt Securities of any other series or
Tranche. (Sec. 1202.)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver, or other action under the
Indenture as of any date, (i) New Debt 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 all Outstanding Securities of
each such series and each such Tranche, as the case may be, determined without
regard to this clause (i)) shall be disregarded and deemed not to be
Outstanding; (ii) 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 as provided in the
Indenture; and (iii) the principal amount of a Debt Security denominated in one
or more foreign currencies or a composite currency that
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will be deemed to be Outstanding will be the Dollar equivalent, determined as of
such date in the manner prescribed for such Debt Security, of the principal
amount of such Debt Security (or, in the case of a Debt Security described in
clause (ii) above, of the amount described in such clause). (Sec. 101.)
If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, election, waiver or other Act, the
Company may, at its option, by Board Resolution, fix in advance a record date
for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, election, 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, election,
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. 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. (Sec. 104.)
Satisfaction and Discharge; Defeasance. Unless otherwise indicated in
the applicable Prospectus Supplement, the Indenture, with respect to any and all
series of New Debt Securities (except for certain specified surviving
obligations) will be discharged and canceled upon the satisfaction of certain
conditions, including: (a) the payment in full of the principal of (and premium,
if any) and interest on all series of the New Debt Securities or the deemed
payment in full of such New Debt Securities, as described below; (b) the payment
by the Company of all other sums required under the Indenture; and (c) the
delivery of a certificate by the Company to the Trustee stating that all
conditions precedent relating to the satisfaction and discharge of the Indenture
have been complied with.
In addition, the Company may at any time (i) terminate certain of its
obligations under the Indenture with respect to New Debt Securities of any
series ("legal defeasance") or (ii) terminate its obligations under certain
covenants set forth in the Indenture with respect to New Debt Securities of any
series (after which any omission to comply with such obligations shall not
constitute a Default with respect to such New Debt Securities) ("covenant
defeasance"). To exercise either legal defeasance or covenant defeasance, the
Company must irrevocably deposit in trust with the Trustee, for the benefit of
the Holders, cash or Eligible Obligations, or a combination thereof, in such
amounts as will be sufficient to pay the principal of and premium and interest,
if any, due and to become due on the New Debt Securities of such series on or
prior to their redemption or maturity date in accordance with the terms of the
Indenture and such New Debt Securities; provided that either (i) such money or
the proceeds of such Eligible Obligations shall have been on deposit with the
Trustee for a period of at least 90 days, or (ii) the Trustee shall have
received an Opinion of Counsel to the effect that payments to Holders with such
moneys as proceeds are not recoverable as a preference under any applicable
United States federal or state law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganization or relief of debtors. The
Company must also comply with certain other conditions, including the delivery
of an Opinion of Counsel to the effect that the Holder of such Debt Securities
will not realize income, gain or loss for federal income tax purposes as a
result of such defeasance, and will realize income, gain or loss on the New Debt
Securities, including payments of interest thereon, on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred. In the case of legal defeasance, the Opinion of Counsel must
be accompanied by a ruling of the Internal Revenue Service issued to the
Company, or based on a change in law or regulation occurring after the date of
the Indenture. Eligible Obligations include direct obligations of, or
obligations unconditionally guaranteed by, the United States of America entitled
to the benefit of the full faith and credit thereof and certificates, depositary
receipts or other instruments which evidence a direct ownership interest in such
obligations or in any specific interest or principal payments due in respect
thereof.
Governing Law. The Indenture and the New Debt Securities will be
governed by and construed in accordance with the law of the State of New York.
(Sec. 112.)
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Concerning the Trustee. The Trustee under the Indenture is the Mortgage
Trustee under the Mortgage and the trustee under a trust agreement establishing
a pension trust for the payment of retirement income for employees of the
Company. The Trustee also serves as trustee for the Company's Savings Investment
Plan and nuclear decommissioning trust. John Peters MacCarthy, a director of the
Company, is also a director of the Trustee.
GLOBAL SECURITIES
Some or all of the New Bonds or New Debt Securities of any series may
be represented, in whole or in part, by one or more global securities (each, a
"Global Security") which will have an aggregate principal amount equal to that
of the New Bonds or New Debt Securities represented thereby. Each Global
Security will be registered in the name of a depositary (the "Depositary") or a
nominee thereof identified in the applicable Prospectus Supplement, will be
deposited with such Depositary or nominee or a custodian therefor and will bear
a legend regarding the restrictions on exchanges and registration of transfer
thereof referred to below and any such other matters as may be provided for
pursuant to the Mortgage or the Indenture.
As long as the Depositary, or its nominee, is the registered holder of
a Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and holder of such Global Security and the Securities
represented thereby for all purposes under the Securities and the Mortgage or
the Indenture as the case may be. Except in limited circumstances, owners of
beneficial interests in a Global Security will not be entitled to have such
Global Security or any Securities represented thereby registered in their names,
will not receive or be entitled to receive physical delivery of certificated
Securities in exchange therefor and will not be considered to be the owners or
holders of such Global Security or any Securities represented thereby for any
purpose under the Securities or the Mortgage or the Indenture as the case may
be. All payments of principal of and any premium and interest on a Global
Security will be made to the Depositary or its nominee, as the case may be, as
the Holder thereof. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a
Global Security.
Ownership of beneficial interests in a Global Security will be limited
to institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Securities represented by the Global Security to
the accounts of its participants. Ownership of beneficial interests in a Global
Security will be shown only on, and the transfer of those ownership interests
will be effected only through, records maintained by the Depositary (with
respect to participants' interests) or any such participant (with respect to
interests of persons held by such participants on their behalf). Payments,
transfers, exchanges, and others matters relating to beneficial interests in a
Global Security may be subject to various policies and procedures adopted by the
Depositary from time to time. None of the Company, the Mortgage Trustee under
the Mortgage, the Trustee under the Indenture, or any agents of each of the
foregoing, will have any responsibility or liability for any aspect of the
Depositary's or any participant's records relating to, or for payments made on
account of, beneficial interests in a Global Security, or for maintaining,
supervising, or reviewing any records relating to such beneficial interests.
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Form 10-K Annual Report, have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
The statements as to matters of law and legal conclusions included in
the Company's Form 10-K Annual Report and the Form 10-Q Reports incorporated by
reference in this Prospectus, and such statements included in this Prospectus
under "Description of the New Bonds" have been prepared under the supervision
of, and reviewed by, William E. Jaudes, Vice President and General Counsel of
the Company and such statements are made and
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incorporated or included herein in reliance on the authority of Mr. Jaudes as an
expert. Mr. Jaudes is a full-time employee of the Company, and at September 30,
1996, owned 5,420 shares of the Company's Common Stock.
LEGAL OPINIONS
The legality of the Securities will be passed upon for the Company by
William E. Jaudes, Vice President and General Counsel of the Company. Certain
legal matters will be passed upon for any underwriters, dealers or agents by
Winthrop, Stimson, Putnam & Roberts, New York, New York.
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of three ways: (i) through
underwriters or dealers, (ii) directly to a limited number of purchasers or to a
single purchaser or (iii) through agents. The Prospectus Supplement with respect
to the Offered Securities will set forth the terms of the offering of a
particular series of the Offered Securities, including the name or names of any
underwriters, the purchase price of such Offered Securities and the net proceeds
to the Company from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price of
the Offered Securities, any discounts or concessions allowed or reallowed or
paid to dealers, and the extent, if any, to which underwriters intend to make a
market in the Offered Securities. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
If underwriters are used in the sale, the Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of the sale. The
Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
underwriting firms. The underwriter or underwriters with respect to a particular
underwritten offering of Offered Securities will be named in the Prospectus
Supplement relating to such offering and, if an underwriting syndicate is used,
the managing underwriter or underwriters will be set forth on the cover page of
such Prospectus Supplement. Unless otherwise set forth in a Prospectus
Supplement, the obligations of the underwriters to purchase the Offered
Securities will be subject to certain conditions precedent, and the underwriters
will be obligated to purchase all such Offered Securities if any are purchased.
If Securities are sold through agents designated by the Company, the
applicable Prospectus Supplement will set forth the name of any agent involved
in the offer or sale of the Offered Securities and any commissions payable by
the Company to such agent. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters or dealers to solicit offers by certain specified
institutions to purchase Securities from the Company at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject to those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission payable
for solicitation of such contracts.
Agents and underwriters may be entitled under agreements entered into
with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933, as amended.
-15-
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Filing fee for registration statement*...................... $ 96,875
Fees charged by state regulatory commissions*............... 10,710
Printing expenses........................................... 25,000
Fees and expenses of Trustees............................... 12,000
Fees and expenses of Accountants............................ 30,000
"Blue Sky" fees and expenses................................ 6,000
Title expenses and recording of supplemental indentures..... 30,000
Rating agencies' fees....................................... 60,000
Miscellaneous expenses...................................... 20,125
---------
Total............................ $ 290,710
- --------------------------
* Actual. All other expenses are estimated.
Item 15. Indemnification of Directors and Officers.
The By-Laws of the Company provide that each person who now is or
hereafter becomes a director or officer shall be indemnified by the Company to
the maximum extent permitted by law against all judgments, expenses and
settlements incurred in connection with any direct or third party civil action
or any criminal claim against that person arising by reason of the fact that the
person is or was serving as a director or officer of the Company; subject,
however, to the statutory restriction that the Company cannot indemnify any
person if that person's conduct is adjudged to have been knowingly fraudulent,
deliberately dishonest or willful misconduct. Partial indemnification, to the
extent permitted by law and public policy, is permitted in instances where full
indemnification is not permitted. And, where full indemnification is prohibited,
such person nevertheless shall have a right of contribution to the extent
permitted by law and public policy in situations where said party is held
jointly liable with the Company.
The aforesaid right to indemnification is not exclusive of any other
right to indemnification that such persons may be entitled under any contract or
agreement. The Company has contracted with each director to provide
indemnification to the maximum extent permitted by law and public policy for any
and all expenses (including judgments, fines, attorneys' fees, and amounts paid
in settlement) incurred by said director in his capacity as a director.
Section 351.355 R.S.Mo. 1994 also provides for indemnification by a
corporation of each director and officer in connection with any civil or
criminal action unless said person's conduct is adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct.
Subject to certain exceptions, the directors and officers of the
Company are insured for loss up to $25,000,000 resulting from any claim or
claims made against them, including claims arising under the Securities Act of
1933 and caused by any negligent act, any error, any omission or any breach of
duty while acting in their capacities as officers or directors, and the Company
is identically insured to the extent that it shall have indemnified the
directors and officers for such loss (subject to a deductible of $2,000.000 with
respect to each loss). The premiums for such insurance are paid by the Company.
II-1
<PAGE>
Item 16. Exhibits.
The following exhibits were previously filed with this registration
statement or are filed herewith and made a part hereof:
Exhibit No. Description
----------- -----------
1.1 - Form of Underwriting Agreement for New Bonds.
(Previously filed.)
1.2 - Form of Underwriting Agreement for New Debt
Securities.
4.1 - Form of Supplemental Indenture of the Company
relating to New Bonds. (Previously filed.)
4.12 - Form of Indenture of the Company relating to New
Debt Securities.
4.13 - Form of Board Resolutions Authorizing the
Issuance of Subordinated Debt Securities.
4.14 - Form of Specimen Subordinated Debt Security.
5.1 - Opinion of William E. Jaudes, Vice President and
General Counsel of the Company, including consent.
5.2 - Opinion of Winthrop, Stimson, Putnam & Roberts
with respect to certain New York law matters,
including consent.
8 - Opinion of Winthrop, Stimson, Putnam & Roberts,
special tax counsel to the Company, with respect
to tax matters, including consent.
12 - Statement re computation of ratio of earnings to
fixed charges.
23 - Consent of Independent Accountants.
24 - Powers of Attorney. (Previously filed.)
25.1 - Form T-1 of Boatmen's Trust Company, Mortgage
Trustee. (Previously filed.)
25.2 - Form T-1 of Boatmen's Trust Company, Trustee.
99 - Form of Prospectus Supplement relating to
Subordinated Debt Securities.*
- -------------------
* The form of Prospectus Supplement filed as Exhibit 99 to this
post-effective amendment to the registration statement may be used as
a supplement to the Prospectus forming a part of this post-effective
amendment to the registration statement in connection with an offering
of the securities referenced therein and is included as an exhibit
because of the current plans of the Company, subject to market
conditions and other factors, to commence such an offering following
effectiveness of this post-effective amendment to the registration
statement.
II-2
<PAGE>
Exhibits Incorporated by Reference
Exhibit No. Description
----------- -----------
4.2 - Indenture of Mortgage and Deed of Trust of the
Company dated June 15, 1937, as amended May 1,
1941, and Second Supplemental Indenture dated May
1, 1941. (Registration No. 2-4940, Exhibit B-1.)
4.3 - Supplemental Indentures to Mortgage
Dated as of File Reference Exhibit No.
- ----------- -------------- -----------
March 1, 1967 2-58274 2.9
March 15, 1968 Form 8-K, April 1968 2
May 1, 1969 Form 8-K, May 1969 2
October 1, 1969 Form 8-K, October 1969 2
January 1, 1971 Form 8-K, January 1971 2
April 1, 1971 Form 8-K, April 1971 6
September 15, 1971 Form 8-K, October 1971 3
February 1, 1974 Form 8-K, February 1974 3
August 16, 1976 Form 8-K, September 1976 4
December 1, 1977 Form 10-K, 1977 6.5
July 7, 1980 2-69821 4.6
February 1, 1981 2-70655 4.5
September 1, 1982 2-79118 4.4
March 1, 1983 2-82336 4.3
March 1, 1986 33-3737 4.3
May 1, 1990 Form 10-K, 1990 4.6
December 1, 1991 33-45008 4.4
December 4, 1991 33-45008 4.5
January 1, 1992 Form 10-K, 1991 4.6
October 1, 1992 Form 10-K, 1992 4.6
December 1, 1992 Form 10-K, 1992 4.7
February 1, 1993 Form 10-K, 1992 4.8
May 1, 1993 Form 10-K, 1993 4.4
August 1, 1993 Form 10-K, 1993 4.4
October 1, 1993 Form 10-K, 1993 4.7
January 1, 1994 Form 10-K, 1993 4.8
4.5 - Indenture of Mortgage and Deed of Trust of
Missouri Power & Light Company dated July 1, 1946
and Supplemental Indentures dated July 1, 1946,
November 1, 1949, June 1, 1951, July 1, 1954,
December 1, 1959, July 1, 1962, March 1, 1966,
April 1, 1967, June 15, 1969, April 15, 1973,
December 1, 1974, May 1, 1976 and July 1, 1979.
(Registration No. 2-87469, Exhibit 4.1.)
4.6 - Fourteenth Supplemental Indenture dated as of
December 30, 1983 to the Mortgage and Deed of
Trust dated July 1, 1946, of Missouri Power & Light
Company. (1983 Form 10-K, Exhibit 4.23.)
II-3
<PAGE>
4.7 - Instrument of Substitution of Individual Trustee
dated as of November 1, 1988 under the Mortgage
and Deed of Trust dated July 1, 1946 of Union
Electric Company (successor to Missouri Power &
Light Company). (1988 Form 10-K, Exhibit 4.8.)
4.8 - Indenture of Mortgage or Deed of Trust of Missouri
Edison Company dated July 1, 1945 and Supplemental
Indentures dated January 1, 1952, June 1, 1961,
June 1, 1965, August 1, 1975, September 1, 1976,
November 1, 1977, February 1, 1981 and July 1,
1982. (Registration No. 2-87469, Exhibit 4.2.)
4.9 - Ninth Supplemental Indenture dated as of
December 30, 1983 to the Indenture of Mortgage or
Deed of Trust dated as of July 1, 1945 of Missouri
Edison Company. (1983 Form 10-K, Exhibit 4.24.)
4.10 - Instrument of Substitution of Trustee dated as of
March 1, 1985 under the Indenture of Mortgage or
Deed of Trust dated July 1, 1945 of Union Electric
Company (successor to Missouri Edison Company).
(1984 Form 10-K, Exhibit 4.10.)
4.11 - Instrument of Substitution of Trustee dated as of
October 14, 1986 under the Indenture of Mortgage or
Deed of Trust dated July 1, 1945 of Union Electric
Company (successor to Missouri Edison Company).
(September 30, 1986 Form 10-Q, Exhibit 4.2.)
Note: Reports of the Company on Forms 8-K and 10-K are on file with the
SEC under file number 1-2967.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement: (i) To include any
prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; (iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
II-4
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 15
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(6) That (1) for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(l) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this Registration Statement as of the time it was declared effective; and (2)
for the purpose of determining any liability under the Securities Act of 1933,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this
Post-effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of St. Louis,
and State of Missouri, on the 22nd day of November, 1996.
UNION ELECTRIC COMPANY
(Registrant)
/s/Charles W. Mueller
_____________________
CHARLES W. MUELLER
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-effective Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities and on the dates indicated.
________________________* Senior Vice President November 22, 1996
DONALD E. BRANDT (Principal Financial and
Accounting Officer)
________________________* Director November 22, 1996
WILLIAM E. CORNELIUS
________________________* Director November 22, 1996
THOMAS H. JACOBSEN
________________________* Director November 22, 1996
THOMAS A. HAYS
________________________* Director November 22, 1996
JOHN PETERS MacCARTHY
________________________* Director November 22, 1996
PAUL L. MILLER, JR.
________________________* Director November 22, 1996
CHARLES W. MUELLER
________________________* Director November 22, 1996
ROBERT H. QUENON
________________________* Director November 22, 1996
HARVEY SALIGMAN
________________________* Director November 22, 1996
JANET McAFEE WEAKLEY
* By /s/ James C. Thompson November 22, 1996
---------------------------------------
(James C. Thompson, Attorney-in-Fact)
II-6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
1.1 - Form of Underwriting Agreement for New Bonds.
(Previously filed.)
1.2 - Form of Underwriting Agreement for New Debt
Securities.
4.1 - Form of Supplemental Indenture of the Company
relating to New Bonds. (Previously filed.)
4.12 - Form of Indenture of the Company relating to New
Debt Securities.
4.13 - Form of Board Resolutions Authorizing the Issuance
of Subordinated Debt Securities.
4.14 - Form of Specimen Subordinated Debt Security.
5.1 - Opinion of William E. Jaudes, Vice President and
General Counsel of the Company, including consent.
5.2 - Opinion of Winthrop, Stimson, Putnam & Roberts
with respect to certain New York law matters,
including consent.
8 - Opinion of Winthrop, Stimson, Putnam & Roberts,
special tax counsel to the Company, with respect to
tax matters, including consent.
12 - Statement re computation of ratio of earnings to
fixed charges.
23 - Consent of Independent Accountants.
24 - Powers of Attorney. (Previously filed.)
25.1 - Form T-1 of Boatmen's Trust Company, Mortgage
Trustee. (Previously filed.)
25.2 - Form T-1 of Boatmen's Trust Company, Trustee.
99 - Form of Prospectus Supplement relating to
Subordinated Debt Securities.
II-7
<PAGE>
EXHIBIT 1.2
WSP&R
DRAFT
11/22/96
UNION ELECTRIC COMPANY
Subordinated Deferrable Interest Debt Securities
UNDERWRITING AGREEMENT
December __, 1996
Lehman Brothers Inc.
As Representative of the several
Underwriters named in
Schedule II hereto
Dear Sirs:
Union Electric Company, a Missouri corporation (the
"Company"), confirms its agreement with you and each of the other underwriters
named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representative") are acting as representative, with respect to the sale by the
Company and the several purchases by the Underwriters of a series of the
Company's subordinated deferrable interest debt securities having the terms and
to be issued in the amount specified in Schedule I hereto (the "Securities").
The Securities will be issued under the Company's Indenture, dated as of
December __, 1996, to Boatmen's Trust Company, as trustee (the "Trustee"), as
supplemented by a supplemental indenture, resolutions of the Board of Directors
of the Company, or a duly authorized committee thereof, or certificate of an
officer of the Company relating to the Securities (any such supplemental
indenture, resolution or certificate being hereinafter referred to as the
"Supplemental Indenture"), in substantially the form heretofore delivered to the
Representative. The term "Indenture", as used herein, shall be deemed to refer
to such Indenture as so supplemented by the Supplemental Indenture. If the firm
or firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representative", as used
herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
<PAGE>
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (File No. 33-45008) ("Registration Statement No.
33-45008") on such form for the registration under the Act of
$200,000,000 principal amount of the Company's first mortgage bonds.
Registration Statement No. 33-45008 was declared effective by the
Commission on January 17, 1992. While an aggregate of $100,000,000 of
such first mortgage bonds remained unsold, the Company also filed with
the Commission a registration statement (File No. 33-52914)
("Registration Statement No. 33-52914") on Form S-3 for the
registration under the Act of an additional $700,000,000 principal
amount of the Company's first mortgage bonds, including a combined
prospectus relating, pursuant to Rule 429 under the Act, to an
aggregate of $800,000,000 principal amount of the Company's first
mortgage bonds. Registration Statement No. 33-52914 was declared
effective by the Commission on October 13, 1992. Thereafter, while an
aggregate of $90,000,000 of such first mortgage bonds remained unsold,
the Company also filed with the Commission a registration statement
(File No. 33-66116) ("Registration Statement No. 33-66116") on Form S-3
for the registration under the Act of an additional $310,000,000
principal amount of the Company's first mortgage bonds, including a
combined prospectus relating, pursuant to Rule 429 under the Act, to an
aggregate of $400,000,000 principal amount of the Company's first
mortgage bonds. Registration Statement No. 33-66116 was declared
effective by the Commission on July 26, 1993. On November __, 1996, the
Company filed Post-Effective Amendment No. 1 to Registration Statement
No. 33-66116 in order to facilitate the offering of one or more series
of unsecured debt securities, including the Securities, in addition to
the Company's first mortgage bonds. Post-Effective Amendment No. 1 to
Registration Statement No. 33-66116, as so amended, was declared
effective by the Commission on _________ __, 1996. As of the date of
effectiveness of said Post-Effective Amendment No. 1, an aggregate of
$225,000,000 principal amount of debt securities was available for
issuance under Registration Statement No. 33-66116. The Company may
have filed one or more other amendments to Registration Statement No.
33-66116, and may have used a Preliminary Prospectus, each of which has
previously been furnished to you. The offering of the Securities is a
Delayed Offering and, although the combined prospectus forming a part
of Registration Statement No. 33- 66116, as amended, may not include
all the information with respect to the Securities and the offering
thereof required by the Act and the rules thereunder to be included in
the Final Prospectus, such combined Prospectus includes all such
information required by the Act and the rules thereunder to be included
therein as of the Effective Date. The Company will next file with the
Commission pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the form of combined prospectus included in Registration
Statement No. 33-66116, as amended, relating to the Securities and the
offering thereof. As filed, such final prospectus supplement shall
include all required information with respect to the Securities and the
offering thereof and, except to the extent the Representative shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in such combined prospectus and any Preliminary Prospectus)
as the Company has advised you, prior to the Execution Time, will be
included or made therein.
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<PAGE>
(b) On the Effective Date, the Registration Statement did and
when the Final Prospectus is first filed in accordance with Rule
424(b), the Final Prospectus (and any supplement thereto) will comply
in all material respects with the applicable requirements of the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the respective rules thereunder; on the Effective Date, the
Registration Statement did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date (as
hereinafter defined), the Indenture did and will comply in all material
respects with the requirements of the Trust Indenture Act and the rules
thereunder; and on the date of its filing pursuant to Rule 424(b) and
on the Closing Date, the Final Prospectus (together with any supplement
thereto) will not include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-l) under the Trust Indenture Act of the Trustee;
or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representative specifically for inclusion in the Registration Statement
or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. With respect to each of Registration
Statement No. 33-45008, Registration Statement No. 33-52914 and
Registration Statement No. 33-66116, the term "Effective Date" shall
mean the later of each date that such registration statement initially
became effective, each date that any post-effective amendment or
amendments thereto became or become effective and the date of the
filing of the Company's most recent Annual Report on Form 10-K.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus" shall
mean the combined prospectus referred to in paragraph (a) above
contained in and forming a part of Registration Statement No. 33-66116
at the Effective Date. "Preliminary Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior to
filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the
Basic Prospectus. "Registration Statement" shall mean Registration
Statement No. 33-45008, Registration Statement No. 33-52914 and
Registration Statement No. 33-66116, including in each case
incorporated documents, exhibits and financial statements, each as
amended to the Execution Time and, in the event any post-effective
amendment to any Registration Statement becomes effective after the
Execution Time and prior to the Closing Date, shall also mean such
Registration Statement as so amended. "Rule 415", "Rule 424", "Rule
429" and "Regulation S-K" refer to such rules and regulation under the
Act. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by
-3-
<PAGE>
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the date Post-Effective Amendment
No. 1 to Registration Statement No. 33-66116 became effective or the
issue date of the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
effective date of such Post-Effective Amendment No. 1 or the issue date
of the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly after the
effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to
the securities so offered.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto, the respective principal amounts of the
Securities set forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Representative shall designate), which date and time may
be postponed by agreement between the Representative and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representative for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representative of the respective purchase prices thereof by wire transfer of
immediately available funds. Delivery of the Securities shall be made at such
location as the Representative shall reasonably designate at least one business
day in advance of the Closing Date and payment for the Securities shall be made
at the office specified in Schedule I hereto. Certificates for the Securities
shall be registered in such names and in such denominations as the
Representative may request not less than two full business days in advance of
the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representative in New York, New York,
not later than 1:00 P.M. on the business day prior to the Closing Date.
4. Covenants of the Company. The Company covenants with each
Underwriter that:
(a) The Company will use its best efforts to cause any
post-effective amendment to the Registration Statement, if not
effective at the Execution Time, to become effective. Prior to the
termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement
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<PAGE>
(including the Final Prospectus or any Preliminary Prospectus) to the
Basic Prospectus (other than a prospectus supplement relating solely to
an offering of first mortgage bonds or debt securities other than the
Securities) unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representative of such timely filing. The Company will promptly advise
the Representative (i) when any post-effective amendment to the
Registration Statement, if not effective at the Execution Time, shall
have become effective; (ii) when the Final Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b); (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective; (iv) of any request by the Commission for
any amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information; (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose; and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it shall be necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earning
statement or statements of the Company which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representative and counsel
for the Underwriters, without charge, copies of Registration Statement
No. 33-45008, Registration Statement No. 33-52914 and Registration
Statement No. 33-66116, as amended, as originally filed (including, in
the case of Registration Statement No. 33- 66116, as amended, exhibits
thereto; provided that the Company will, upon the request of the
Underwriters, furnish copies of the exhibits to Registration Statement
No. 33- 45008 and Registration Statement No. 33-52914), all amendments
thereto relating to the Securities and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
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many copies of any Preliminary Prospectus and the Final Prospectus and
any supplement thereto as the Representative may reasonably request.
The Company will pay the expenses of printing or other production of
all documents relating to the offering.
(e) The Company will cooperate in good faith with the
Representative in qualifying the Securities for offer and sale under
the laws of such jurisdictions as the Representative may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Securities, and, upon the request of the
Representative, will arrange for the determination of the legality of
the Securities for purchase by institutional investors.
(f) Until the business date set forth on Schedule I hereto,
the Company will not, without the consent of the Representative, offer,
guarantee, sell or contract to sell, or otherwise dispose of, by public
offering, or announce the public offering of, any long-term unsecured
debt securities other than the Securities.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Final Prospectus shall have been filed in the manner
and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Representative the
opinion of William E. Jaudes, Vice President and General Counsel of the
Company, dated the Closing Date, to the effect that:
(i) the Company is a corporation duly organized and
validly existing and in good standing under the laws of
Missouri and has due corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly qualified to conduct in Illinois and
Iowa the businesses in which it is engaged in those States,
which are the only States in which it is required to be so
qualified;
(ii) the Company has full power and authority to
execute the Indenture and to issue the Securities thereunder,
and the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the
Trust Indenture Act, and constitutes a valid and legally
binding instrument by the Company enforceable against the
Company in accordance with its terms;
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<PAGE>
(iii) Boatmen's Trust Company is authorized and
qualified under the laws of the States of Missouri, Illinois
and Iowa to act as Trustee under the Indenture;
(iv) the Securities have been duly authorized,
executed and issued by the Company and, assuming due
authentication thereof by the Trustee and upon payment and
delivery in accordance with the terms of this Agreement, will
constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not
described or filed as required; and the statements included or
incorporated in the Final Prospectus describing any legal
proceedings or material contracts or agreements relating to
the Company fairly summarize such matters;
(vi) Registration Statement No. 33-45008,
Registration Statement No. 33- 52914 and Registration
Statement No. 33-66116, and each post-effective amendment
thereto, have each become effective under the Act; any
required filing of the Basic Prospectus, any Preliminary
Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
and no proceedings for that purpose have been instituted or
threatened; at the respective Effective Dates thereof, the
Registration Statement and, at the time first filed pursuant
to Rule 424(b), the Final Prospectus (in each case including
the documents then incorporated by reference therein but
excluding the financial statements and other financial and
statistical information contained therein as to which such
counsel need express no opinion) complied as to form in all
material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act, as applicable,
and the respective rules thereunder; and such counsel has no
reason to believe that, at the respective Effective Dates
thereof, the Registration Statement contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final
Prospectus, at the time first filed pursuant to Rule 424(b)
and at the Closing Date, includes any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
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<PAGE>
(vii) the Company has full power and authority to
execute this Agreement and this Agreement has been duly
authorized, executed and delivered by the Company;
(viii) the Missouri Public Service Commission and the
Illinois Commerce Commission have duly authorized the issue
and sale of the Securities; such authorizations are sufficient
for the issue and sale of the Securities and are in full force
and effect; no other approval or consent of or filing with any
other governmental body, including without limitation any
regulatory body of the State of Iowa (other than, under the
Act or the Trust Indenture Act, which have been obtained, or
in connection or compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction, as to which
such counsel expresses no opinion), is legally required in
connection with the execution and delivery of this Agreement
and the Indenture or the authorization, issuance and sale of
the Securities;
(ix) the execution and delivery of the Indenture, the
Securities and this Agreement, and the fulfillment of the
terms thereof and hereof by the Company, will not result in a
breach of any of the terms or provisions of, or constitute a
default under any provision of, the Company's articles of
incorporation or by-laws or any indenture, mortgage, deed of
trust or other agreement or instrument, of which such counsel
has knowledge, to which the Company is now a party or, to the
best of such counsel's knowledge, any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its activities or
properties;
(x) the provisions of the Securities and the
Indenture conform in all material respects as to legal matters
to the statements concerning them contained in the Final
Prospectus under "The Offering" and "Certain Terms of the
Capital Securities";
(xi) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement;
(xii) the franchises, permits and licenses under
which the Company operates in the States of Missouri, Illinois
and Iowa are adequate to permit the Company to engage in the
businesses which it presently conducts in those States and do
not contain any unduly burdensome provisions; in those
municipalities where the Company operates without franchises
or where expired franchises have not been renewed, the lack of
such franchises does not materially affect the Company's
operations in such municipalities and no actions or
proceedings are pending or, to such counsel's knowledge,
threatened by such municipalities which would materially
affect the Company's operations[; and
(xiii) the Company is exempt from all of the
provisions of the Public Utility Holding Company Act of 1935,
except Sections 9(a)(2) and 11(b)(2) thereof].
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<PAGE>
Such counsel's opinion set forth in paragraphs (ii) and (iv)
above is subject to the qualifications that the enforceability of the Company's
obligations under the Indenture and the Securities may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditor's rights generally, by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and by an implied covenant of good faith and
fair dealing.
Such opinion shall also state that such counsel has no
knowledge of any litigation, pending or threatened, which challenges the
validity of the Securities, the Indenture, or this Agreement, or which seeks to
enjoin the performance of the Company's obligations thereunder or which might
have a material adverse effect on the business, properties or financial
condition of the Company except as disclosed in or contemplated by the Final
Prospectus.
In rendering such opinion, such counsel may rely as to factual
matters upon certificates or written statements from others or other appropriate
representatives of the Company or upon certificates of public officials. In such
opinion, such counsel may state that while such counsel has examined the
Registration Statement and the Final Prospectus, such counsel necessarily
assumes the correctness and completeness of the statements made and information
included therein and takes no responsibility therefor, except insofar as such
statements relate to him and as set forth in paragraph (x) above.
Such counsel's opinion may further state that it is addressed
to the Underwriters and is rendered solely for their benefit and may not be
relied upon in any manner by any other person (other than Winthrop, Stimson,
Putnam & Roberts to the extent stated in its opinion to the Underwriters as of
the Closing Date) without such counsel's prior written consent.
(c) The Representative shall have received from Winthrop,
Stimson, Putnam & Roberts, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, the Indenture, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other
related matters as the Representative may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
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<PAGE>
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, Price Waterhouse shall have furnished
to the Representative a letter or letters, dated as of the Closing
Date, in form and substance satisfactory to the Representative,
confirming that they are independent accountants with respect to the
Company within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion, the audited financial
statements and financial statement schedules incorporated in
the Registration Statement and the Final Prospectus and
reported on by them comply in form in all material respects
with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(ii) based on the performance of the procedures
specified by the American Institute of Certified Public
Accountants for review of interim financial information as
described in Statement of Auditing Standards No. 71, Interim
Financial Information, on unaudited financial statements
incorporated in the Registration Statement and the Final
Prospectus (if any), inquiries of officials of the Company
responsible for financial and accounting matters and reading
the minutes of the meetings of the stockholders, directors and
principal committees of the Company, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements
incorporated in the Registration Statement and the
Final Prospectus do not comply as to form in all
material respects with applicable accounting
requirements of the Act and the Exchange Act, and
with the published rules and regulations of the
Commission thereunder, or any material modifications
should be made for them to be in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the most
recent audited financial statements incorporated in
the Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated in the
Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more
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than five business days prior to the date of the
letter, in the capital stock or the long-term debt of
the Company as compared with the amounts shown in the
most recent financial statements included or
incorporated by reference in the Registration
Statement and the Final Prospectus except in all
instances for changes which the Registration
Statement discloses have occurred or may occur or as
may result from the retirement of preferred stock to
satisfy a mandatory sinking fund requirement, the
issuance of common stock pursuant to the Company's
Employee Stock Ownership Plan, and its issuance or
retirement of long-term debt through the nuclear fuel
lease, or for the twelve-month period ended not more
than five days prior to the date hereof there were
any decreases in excess of 3%, as compared with the
comparable information for the twelve months ended as
of the date of the most recent financial statements
referred to above, in operating revenues, operating
income, net income, earnings on common stock,
earnings per share of common stock, or ratio of
earnings to fixed charges, except in all instances
for decreases which the Registration Statement
discloses have occurred or may occur, in which case
the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless
said explanation is not deemed necessary by the
Representative; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements incorporated by reference in the
Registration Statement and the Final Prospectus;
(iii) the pro forma financial statements relating to
the Company's proposed merger with CIPSCO Incorporated
included or incorporated by reference in the Registration
Statement and the Final Prospectus comply as to form with the
applicable accounting requirements of Article 11 of Regulation
S-X under the Exchange Act; and
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company) set forth in the Registration Statement and the Final
Prospectus Supplement, including the information included or
incorporated in the Company's Annual Report on Form 10-K or
any Form 8-K, incorporated in the Registration Statement and
the Final Prospectus, and the information included in the
"Management's Discussion and Analysis of the Results of
Operations" included or incorporated in the Company's
Quarterly Reports on Form 10-Q, incorporated in the
Registration Statement and the Final Prospectus, agrees with
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the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, at the Execution Time, Price Waterhouse shall
have furnished to the Representative a letter or letters, dated as of the
Execution Time, in form and substance satisfactory to the Representative, to the
effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Prior to the Closing Date, the Securities shall have
received ratings of ________ or higher by Standard & Poor's and
________ or higher by Moody's Investors Service, Inc., and such ratings
shall be in effect on the Closing Date.
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purpose of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(i) The orders of the Missouri Public Service Commission and
the Illinois Commerce Commission duly authorizing and approving the
issuance and sale of the Securities as contemplated in this Agreement
and in the Final Prospectus shall be in full force and effect at the
Closing Date, and no authorization or approval of any other
governmental regulatory authority shall be required in connection with
the authorization, issuance and sale of the Securities by the Company.
(j) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates
and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
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<PAGE>
may be canceled at, or at any time prior to, the Closing Date by the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or electronic transmittal confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
Registration Statement No. 33-45008, Registration Statement No.
33-52914 or Registration Statement No. 33-66116, or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action, provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the
Representative specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signed Registration Statement No. 33-45008, Registration Statement No.
33-52914 or Registration Statement No. 33- 66116 or any amendment
thereof, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the
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Company by or on behalf such Underwriter through the Representative
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in [the first sentence of
the last paragraph of the cover page, the top paragraph on page S-2 and
the third and fourth paragraphs] under the caption "Underwriting" in
the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in
the documents referred to in the foregoing indemnity, and you, as the
Representative, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses; and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
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<PAGE>
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the
Underwriters from the offering of the Securities; provided, however,
that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company and of the Underwriters in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses), and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to whether
any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the
Underwriters agree that it would not be just and equitable if
contributions were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and
conditions of this paragraph (d). The obligations of the Underwriters
to contribute hereunder are several in proportion to their respective
underwriting obligations and not joint.
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed
-15-
<PAGE>
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of such
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representative shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representative, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in the Company's Common Stock shall have been suspended by the
Commission or the NYSE or trading in securities generally on the NYSE shall have
been suspended or limited or minimum prices shall have been established on such
Exchange; (ii) a banking moratorium shall have been declared by Federal,
Missouri, Illinois or New York State authorities; or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and shall survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder shall be in writing
and effective only on receipt, and, if sent to the Representative, will be
mailed, delivered or electronically transmitted and confirmed, to Lehman
Brothers Inc., 3 World Financial Center, 200 Vesey Street, New York, New York
10285, attention of Karen Hanovice, Senior Vice President; or, if sent to the
Company, shall be mailed, delivered or telegraphed and confirmed to it at 1901
Chouteau Avenue, Post Office Box 149, St. Louis, Missouri 63166; attention of
Donald E. Brandt, Senior Vice President, Finance and Corporate Services and
Chief Financial Officer.
12. Successors. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons, directors and officers
referred to in Section 7, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained; this Agreement
-16-
<PAGE>
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of the parties hereto and their respective successors
and said controlling persons, directors and officers and for the benefit of no
other person, firm or corporation.
No purchaser of any Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
13. Applicable Law. The rights and duties of the parties
hereto under this Agreement shall, pursuant to New York General Obligations Law
Section 5-1401, be governed by the law of the State of New York.
14. Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
such counterpart, when so executed and delivered, shall be deemed to be an
original, and all of such counterparts shall, taken together, constitute one and
the same agreement.
-17-
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
UNION ELECTRIC COMPANY
By:---------------------------
Title:------------------------
CONFIRMED AND ACCEPTED as of the date first above written.
LEHMAN BROTHERS INC.
By: Lehman Brothers Inc.
--------------------
By:-----------------------
Title:--------------------
For themselves and the other several Underwriters, if any, named in Schedule II
to the foregoing Agreement.
-18-
<PAGE>
SCHEDULE I
Underwriting Agreement dated December __, 1996
Representative: Lehman Brothers Inc.
Designation, Purchase price and Description of the Securities:
Designation: Series A SKISSM, [___]% Subordinated Capital Income
Securities (Series A Subordinated Deferrable Interest Debentures). Each
$1,000 principal amount of such [___]% Subordinated Capital Income
Securities is referred to below as a "Security".
Principal amount: $[_________]
Supplemental Indenture: Resolutions, dated June 9, 1995 of the Board of
Directors of Union Electric Company and dated December __, 1996 of the
Executive Committee thereof.
Date of Maturity: December 15, 2045
Purchase price: $[____] per Security.
Public Offering Price: $[1,000] per Security.
Sinking fund provisions: None
Redemption provisions: The Securities will not be redeemable prior to
December __, 2006; thereafter, the Securities will be redeemable at the
option of the Company, in whole or in part, at any time on or after
December __, 2006 at the following redemption prices (in each case
expressed in percentages of principal amount):
If Redeemed During 12 Month Period Redemption
Beginning December , Price
2006........................... %
2007...........................
2008...........................
2009...........................
2010...........................
2011...........................
2012...........................
2013...........................
<PAGE>
2014...........................
2015...........................
2016 and thereafter................... 100%
in each case, upon not less than 30 nor more than 60 days' notice,
together with accrued interest to, but not including, the date fixed
for redemption;
Closing Date, Time and Location: 10:00 A.M. on December __, 1996, at the
offices of
Winthrop, Stimson, Putnam & Roberts,
One Battery Park Plaza, New York, New York 10004
Date referred to in Section 4(f) after which the Company may offer or sell by
public offering long-term unsecured debt securities issued or guaranteed by
the Company without the consent of the Representative: [____________], 199_
<PAGE>
SCHEDULE II
Principal Amount
of Securities to be
Underwriters Purchased
Lehman Brothers Inc. ...............................................$
Total ................................................$
<PAGE>
EXHIBIT 4.12
WSP&R
DRAFT
11/22/96
-------------------------------------
UNION ELECTRIC COMPANY
TO
BOATMEN'S TRUST COMPANY
Trustee
--------
INDENTURE
(For Unsecured [Subordinated] Debt Securities)
Dated as of ________, 1996
-------------------------------------
<PAGE>
UNION ELECTRIC COMPANY
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of ____________, 1996
Trust Indenture Act Section Indenture Section
ss.310 (a)(1)...................................................909
(a)(2)...................................................909
(a)(3)...................................................914
(a)(4)...................................................Not Applicable
(b)......................................................909
910
ss.311 (a)......................................................913
(b)......................................................913
(c)......................................................913
ss.312 (a).....................................................1001
(b).....................................................1001
(c).....................................................1001
ss.313 (a).....................................................1002
(b).....................................................1002
(c).....................................................1002
(d).....................................................1002
ss.314 (a).....................................................1002
(a)(4)...................................................606
(b).....................................................Not Applicable
(c)(1)...................................................102
(c)(2)...................................................102
(c)(3)..................................................Not Applicable
(d).....................................................Not Applicable
(e)......................................................102
ss.315 (a)......................................................901
903
(b)......................................................902
(c)......................................................901
(d)......................................................901
(e)......................................................814
ss.316 (a)......................................................812
813
(a)(1)(A)................................................802
812
(a)(1)(B)................................................813
(a)(2)...................................................Not Applicable
(b) .....................................................808
ss.317 (a)(1)...................................................803
(a)(2)...................................................804
(b)......................................................603
ss.318 (a)......................................................107
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions....................................1
"Act" ......................................2
"Affiliate"....................................2
"Authenticating Agent".........................2
"Authorized Officer"...........................2
"Board of Directors"...........................2
"Board Resolution".............................3
"Business Day".................................3
"Commission"...................................3
"Company"......................................3
"Company Request" or "Company Order"...........3
"Corporate Trust Office".......................3
"corporation"..................................3
"Defaulted Interest"...........................3
"Discount Security"............................3
"Dollar" or "$"................................3
"Eligible Obligations".........................3
"Event of Default".............................4
"Governmental Authority".......................4
"Government Obligations"........................4
"Holder".......................................4
"Indenture"....................................4
"Interest Payment Date"........................4
"Maturity".....................................4
"Officer's Certificate"........................4
"Opinion of Counsel"...........................5
"Outstanding"..................................5
"Paying Agent".................................6
"Periodic Offering"............................6
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"Person" ......................................6
"Place of Payment".............................6
"Predecessor Security".........................6
"Redemption Date"..............................7
"Redemption Price".............................7
"Regular Record Date"..........................7
"Required Currency"............................7
"Responsible Officer"..........................7
"Securities"...................................7
"Security Register" and "Security Registrar"...7
"Senior Indebtedness"..........................7
"Special Record Date"..........................7
"Stated Interest Rate".........................7
"Stated Maturity"..............................8
"Successor Corporation"........................8
"Tranche"......................................8
"Trust Indenture Act"..........................8
"Trustee"......................................8
"United States"................................8
SECTION 102. Compliance Certificates and Opinions...........8
SECTION 103. Form of Documents Delivered to Trustee.........9
SECTION 105. Notices, Etc., to Trustee and Company.........11
SECTION 106. Notice to Holders of Securities; Waiver.......12
SECTION 107. Conflict with Trust Indenture Act.............12
SECTION 108. Effect of Headings and Table of Contents......13
SECTION 109. Successors and Assigns........................13
SECTION 110. Separability Clause...........................13
SECTION 111. Benefits of Indenture.........................13
SECTION 112. Governing Law.................................13
SECTION 113. Legal Holidays................................13
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally...............................14
SECTION 202. Form of Trustee's Certificate
of Authentication.............................14
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series..........15
SECTION 302. Denominations.................................18
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<PAGE>
SECTION 304. Temporary Securities..........................21
SECTION 305. Registration, Registration of Transfer
and Exchange..................................22
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities................................... 23
SECTION 307. Payment of Interest; Interest Rights
Preserved.................................... 24
SECTION 308. Persons Deemed Owners.........................25
SECTION 309. Cancellation by Security Registrar............25
SECTION 311. Payment to Be in Proper Currency..............25
SECTION 312. Extension of Interest Payment.................26
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article......................26
SECTION 402. Election to Redeem; Notice to Trustee.........26
SECTION 403. Selection of Securities to Be Redeemed........27
SECTION 404. Notice of Redemption..........................27
SECTION 405. Securities Payable on Redemption Date.........28
SECTION 406. Securities Redeemed in Part...................29
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article......................29
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities.............................. 29
SECTION 503. Redemption of Securities for Sinking Fund.... 30
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest....30
SECTION 602. Maintenance of Office or Agency...............31
SECTION 603. Money for Securities Payments to Be Held
in Trust......................................31
SECTION 604. Corporate Existence...........................33
SECTION 605. Maintenance of Properties.....................33
SECTION 606. Annual Officer's Certificate as to
Compliance....................................33
SECTION 607. Waiver of Certain Covenants...................33
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<PAGE>
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities......34
SECTION 702. Legal and Covenant Defeasance.................35
SECTION 703. Application of Trust Money....................38
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.............................38
SECTION 802. Acceleration of Maturity; Rescission
and Annulment.................................40
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee........................41
SECTION 804. Trustee May File Proofs of Claim..............41
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities......................42
SECTION 806. Application of Money Collected................42
SECTION 807. Limitation on Suits...........................43
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest...............44
SECTION 809. Restoration of Rights and Remedies............44
SECTION 810. Rights and Remedies Cumulative................44
SECTION 811. Delay or Omission Not Waiver..................44
SECTION 812. Control by Holders of Securities..............44
SECTION 813. Waiver of Past Defaults.......................45
SECTION 814. Undertaking for Costs.........................45
SECTION 815. Waiver of Stay or Extension Laws..............46
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities...........46
SECTION 902. Notice of Defaults............................47
SECTION 903. Certain Rights of Trustee.....................47
SECTION 904. Not Responsible for Recitals or Issuance of
Securities....................................49
SECTION 905. May Hold Securities...........................49
SECTION 906. Money Held in Trust...........................49
SECTION 907. Compensation and Reimbursement................49
SECTION 908. Disqualification; Conflicting Interests.......50
SECTION 909. Corporate Trustee Required; Eligibility.......50
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<PAGE>
SECTION 910. Resignation and Removal; Appointment
of Successor..................................50
SECTION 911. Acceptance of Appointment by Successor........52
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business........................53
SECTION 913. Preferential Collection of Claims
Against Company...............................54
SECTION 914. Co-trustees and Separate Trustees.............54
SECTION 915. Appointment of Authenticating Agent...........55
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders..............................57
SECTION 1002. Reports by Trustee and Company................57
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only
on Certain Terms..............................58
SECTION 1102. Successor Corporation Substituted.............58
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without
Consent of Holders............................59
SECTION 1202. Supplemental Indentures With
Consent of Holders............................61
SECTION 1203. Execution of Supplemental Indentures..........62
SECTION 1204. Effect of Supplemental Indentures.............62
SECTION 1205. Conformity With Trust Indenture Act...........62
SECTION 1206. Reference in Securities to
Supplemental Indentures.......................63
SECTION 1207. Modification Without Supplemental Indenture...64
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.....64
SECTION 1302. Call, Notice and Place of Meetings............64
SECTION 1303. Persons Entitled to Vote at Meetings..........65
SECTION 1304. Quorum; Action................................65
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<PAGE>
SECTION 1305. Attendance at Meetings; Determination
of Voting Rights; Conduct
and Adjournment of Meetings...................66
SECTION 1306. Counting Votes and Recording Action
of Meetings...................................67
SECTION 1307. Action Without Meeting........................67
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 1401. Liability Solely Corporate....................67
[ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior
Indebtedness..................................68
SECTION 1502. Payment Over of Proceeds of Securities........68
SECTION 1503. Disputes with Holders of Certain
Senior Indebtedness...........................70
SECTION 1504. Subrogation...................................70
SECTION 1505. Obligation of the Company Unconditional.......71
SECTION 1507. Trustee as Holder of Senior Indebtedness......71
SECTION 1508. Notice to Trustee to Effectuate
Subordination.................................72
SECTION 1509. Modification, Extension, Etc., of Senior
Indebtedness..................................72
SECTION 1510. Trustee Has No Fiduciary Duty to Holders
of Senior Indebtedness........................72
SECTION 1511. Paying Agents Other Than the Trustee..........72
SECTION 1512. Rights of Holders of Senior
Indebtedness Not Impaired.....................73
SECTION 1513. Effect of Subordination Provisions;
Termination...................................73]
-vi-
<PAGE>
INDENTURE, dated as of ____________, 1996, between UNION
ELECTRIC COMPANY, a corporation duly organized and existing under the laws of
the State of Missouri (herein called the "Company"), having its principal office
at 1901 Chouteau Avenue, St. Louis, Missouri 63103, and BOATMEN'S TRUST COMPANY,
a corporation duly organized and existing under the laws of the State of
Missouri, having its principal corporate trust office at 510 Locust Street, St.
Louis, Missouri 63101, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
[subordinated]1 debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as contemplated
herein; and all acts necessary to make this Indenture a valid agreement of the
Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires, capitalized terms
used herein shall have the meanings assigned to them in Article One of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
- --------
1 Bracketed language will be inserted in the Indenture under which
Subordinated Capital Income Securities ("SKIS") or other subordinated
Securities will be issued.
-1-
<PAGE>
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as
well as the singular;
(b) all terms used herein without definition which
are defined in the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such computation
or, at the election of the Company from time to time, at the date of
the execution and delivery of this Indenture; provided, however, that
in determining generally accepted accounting principles applicable to
the Company, the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency, regulatory
authority or other governmental body having jurisdiction over the
Company; and
(d) 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.
Certain terms, used principally in Article Nine, are defined
in that Article.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee to act on
behalf of the Trustee to authenticate one or more series of Securities.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer or any other duly authorized
officer of the Company.
"Board of Directors" means either the board of directors of
the Company or any committee thereof duly authorized to act in respect of
matters relating to this Indenture.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
-2-
<PAGE>
adopted by the Board of Directors, or a duly authorized committee thereof, and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day", when used with respect to a Place of Payment
or any other particular location specified in the Securities or this Indenture,
means any day, other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of Payment 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 301.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, performing such
duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by an Authorized Officer and
delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution and delivery of this
Indenture is located at 510 Locust Street, St. Louis, Missouri 63101.
"corporation" means a corporation, association, company, joint
stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"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 802.
"Interest" with respect to a Discount Security means interest, if any, borne by
such Security at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in
Dollars, Government Obligations, or
-3-
<PAGE>
(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 301.
"Event of Default" has the meaning specified in Section 801.
"Governmental Authority" means the government of the United
States or of any State or Territory thereof or of the District of Columbia or of
any county, municipality or other political subdivision of any thereof, or any
department, agency, authority or other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by,
the United States entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership interest in obligations
described in clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the custodian
of such obligations or specific interest or principal payments shall be
a bank or trust company (which may include the Trustee or any Paying
Agent) subject to Federal or state supervision or examination with a
combined capital and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by law, such
custodian shall be obligated to pay to the holders of such
certificates, depositary receipts or other instruments the full amount
received by such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction therefrom.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"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.
-4-
<PAGE>
"Officer's Certificate" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, or other counsel acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to Section 306 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 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 the Trustee
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 the pledgee
establishes to the satisfaction of the Trustee the pledgee's
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;
(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 802; and
-5-
<PAGE>
(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.
"Periodic Offering" means an offering of Securities of a
series from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any, thereon, the
Stated Maturity or Maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any Governmental Authority
thereof.
"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 301, at which, subject to Section 602, 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 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed (to the
extent lawful) to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"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.
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<PAGE>
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
["Senior Indebtedness" means all obligations (other than
non-recourse obligations and the indebtedness issued under this Indenture) of,
or guaranteed or assumed by, the Company for borrowed money, including both
senior and subordinated indebtedness for borrowed money (other than the
Securities), or for the payment of money relating to any lease which is
capitalized on the balance sheet of the Company in accordance with generally
accepted accounting principles as in effect from time to time, or evidenced by
bonds, debentures, notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and refundings of any such
indebtedness or obligations, whether existing as of the date of this Indenture
or subsequently incurred by the Company.]2
"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 307.
"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 obligation or
any installment
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2 Bracketed language will be inserted in the Indenture under which SKIS
or other subordinated Securities will be issued.
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<PAGE>
of principal thereof or interest thereon, means the date on which the principal
of such obligation or such installment of principal or interest is stated to be
due and payable (without regard to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"Successor Corporation" has the meaning set forth in Section
1301.
"Tranche" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal amount and/or
date of issuance.
"Trust Indenture Act" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
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 means the Trustee with respect to Securities of that series.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
SECTION 102. 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, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, 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
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<PAGE>
(d) a statement as to whether, in the opinion of
each such Person, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion are
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in 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.
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<PAGE>
SECTION 104. 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 Thirteen, 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 901) 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 1306.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof or may be proved in any other manner which
the Trustee and the Company deem sufficient. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise contemplated in
clause (y) of the proviso to the definition of Outstanding) and serial
numbers of Securities held by any Person, and the date of holding the
same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Security and the 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
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<PAGE>
principal amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf
of a Holder may be revoked with respect to any or all of such
Securities by written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of Holders. If the Company
shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee and
the Company, to such action may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by Board Resolution, fix in advance a
record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or
other 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 105. Notices, Etc., to Trustee and Company.
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 herein expressly provided) if in writing and delivered personally to
an officer or other responsible employee of the addressee, or transmitted by
facsimile transmission, telex or other direct written electronic means to such
telephone number or other electronic communications address as the parties
hereto shall from time to time designate, or transmitted by registered mail,
charges prepaid, to the applicable address set opposite such party's name below
or to such other address as either party hereto may from time to time designate:
If to the Trustee, to:
Boatmen's Trust Company
510 Locust Street
St. Louis, Missouri 63101
Attention: P.C. QuiBelle
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<PAGE>
Telephone: (314) 466-1356
Telecopy: (314) 466-2469
If to the Company, to:
Union Electric Company
1901 Chouteau Avenue
St. Louis, Missouri 63103
Attention: Treasurer
Telephone: (314) 621-3222
Telecopy: (314) 554-3066
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, telex or other direct
written electronic means, on the date of transmission, and if transmitted by
registered mail, on the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing
by the Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. 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 by, any of the
provisions 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.
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<PAGE>
SECTION 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. 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, the Holders, [and so long as the notice described in
Section 1513 hereof has not been given, the holders of Senior Indebtedness,]3
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, except to the
extent that the law of any other jurisdiction shall be mandatorily applicable.
SECTION 113. 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 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[, except that if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding
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3 Bracketed language will be inserted in the Indenture under which SKIS
or other subordinated Securities will be issued.
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<PAGE>
Business Day in each case]4 with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, and, if
such payment is made or duly provided for on such Business Day, no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be,
to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. 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
supplemental indenture or Board Resolution, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or the
authorizations, orders or regulations of any state regulatory agency having
jurisdiction over the Company, or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution of
the Securities. If the form or forms of Securities of any series are established
in a Board Resolution or in an Officer's Certificate pursuant to a 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 303 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 301, 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 202. 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.
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4 Bracketed language will be inserted in the Indenture under which SKIS
or other subordinated Securities will be issued.
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<PAGE>
BOATMEN'S TRUST COMPANY
as Trustee
By: ______________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. 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 last paragraph of this Section, prior to the authentication and delivery of
Securities of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or a Board Resolution:
(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 the series pursuant to Section 304, 305, 306, 406
or 1206 and, except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to
whom interest on Securities of such series, or any Tranche thereof,
shall be payable on any Interest Payment Date, if other than the
Persons in whose names such Securities (or one or more Predecessor
Securities) are registered at the close of business on the Regular
Record Date for such interest;
(d) the date or dates on which the principal of the Securities
of such series or any Tranche thereof, is payable or any formulary or
other method or other means by which such date or dates shall be
determined, by reference or otherwise (without regard to any provisions
for redemption, prepayment, acceleration, purchase or extension);
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<PAGE>
(e) the rate or rates at which the Securities of such series,
or any Tranche thereof, shall bear interest, if any (including the rate
or rates at which overdue principal shall bear interest, if different
from the rate or rates at which such Securities shall bear interest
prior to Maturity, and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if any), or any
formulary or other method or other means by which such rate or rates
shall be determined, by reference or otherwise; the date or dates from
which such interest shall accrue; the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date, if any, for
the interest payable on such Securities on any Interest Payment Date;
[the right of the Company, if any, to extend the interest payment
periods and the duration of any such extension as contemplated by
Section 312]5 and the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by which (1) the
principal of and premium, if any, and interest, if any, on Securities
of such series, or any Tranche thereof, shall be payable, (2)
registration of transfer of Securities of such series, or any Tranche
thereof, may be effected, (3) exchanges of Securities of such series,
or any Tranche thereof, may be effected and (4) 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 for such series; and if such is the case, that the principal
of such Securities shall be payable without 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 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, in whole or in part, pursuant to such
obligation, and applicable exceptions to the requirements of Section
404 in the case of mandatory redemption or redemption at the option of
the Holder;
(i) the denominations in which Securities of such series, or
any Tranche thereof, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof;
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5 Bracketed language will be inserted in the Indenture under
which SKIS or other subordinated Securities will be issued.
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<PAGE>
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if any,
and interest, if any, on the Securities of such series, or any Tranche
thereof, shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are stated to
be payable, the period or periods within which and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or interest on the
Securities of such series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company or a Holder
thereof, in securities or other property, the type and amount of such
securities or other property, or the formulary or other method or other
means by which such amount shall be determined, and the period or
periods within which, and the terms and conditions upon which, any such
election may be made;
(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 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 802;
(o) any Events of Default, in addition to those specified in
Section 801, with respect to the Securities of such series, and any
covenants of the Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof, in addition to those
set forth in Article Six;
(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, and any additional or
alternative provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the satisfaction and
discharge thereof as provided in Section 701;
(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
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<PAGE>
limitations on the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of temporary form and
(iii) any and all other matters incidental to such Securities;
(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 1201;
(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 113, or variation in the
definition of Business Day, with respect to the Securities of such
series, or any Tranche thereof; and
(v) any other terms of the Securities of such series, or any
Tranche thereof, not inconsistent with the provisions of this
Indenture.
[The Securities of each series, or any Tranche thereof, shall
be subordinated in the right of payment to Senior Indebtedness as provided in
Article Fifteen.]6
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of Securities of such series, or any Tranche thereof,
shall be specified in a Company Order or that such terms shall be determined by
the Company or its agents in accordance with procedures specified in a Company
Order as contemplated by the clause (b) of the third paragraph of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities of
each series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section 301 with
respect to any
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6 Bracketed language will be inserted in the Indenture under which SKIS
or other subordinated Securities will be issued.
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<PAGE>
series of Securities, or any Tranche thereof, the Securities shall be executed
on behalf of the Company by an Authorized Officer and may have the corporate
seal of the Company affixed thereto or reproduced thereon attested by any other
Authorized Officer. The signature of any or all of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in accordance with
the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections 201 and 301;
(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
Sections 201 and 301, 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 delivered pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf of the
Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) that 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) that 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) that such Securities, when authenticated and
delivered by the Trustee and issued and delivered by the
Company in the manner and subject to any conditions specified
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<PAGE>
in such Opinion of Counsel, 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 creditors' rights,
including, without limitation, bankruptcy and insolvency laws
and to 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 of such
Securities (provided that such Opinion of Counsel addresses the authentication
and delivery of all Securities of such series) and that in lieu of the opinions
described in clauses (ii) and (iii) above Counsel may opine that:
(x) when the terms of such Securities shall
have been established pursuant to a Company Order or Orders or
pursuant to such procedures (acceptable to the Trustee) 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) such Securities, when authenticated and
delivered by the Trustee in accordance with this Indenture and
the Company Order or Orders or specified procedures referred
to in paragraph (x) above and issued and delivered by the
Company in the manner and subject to any conditions specified
in such Opinion of Counsel, 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 creditors' rights,
including, without limitation, bankruptcy and insolvency laws
and to 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 form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of Counsel
and other documents delivered pursuant to Sections 201 and 301 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 subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
rules, regulations or orders of any Governmental Authority having jurisdiction
over the Company.
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<PAGE>
If the form 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 201 or 301, 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.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, each Security shall
be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301 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, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder 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 309 together with a written statement (which need not comply with
Section 102 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 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon Company Order
the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities; provided,
however, that temporary Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be exchangeable, without charge to
the Holder thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment for such Securities.
Upon such surrender of temporary Securities, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver in exchange
therefor definitive Securities of the same series and Tranche, of authorized
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<PAGE>
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and Tranche and of like
tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept in each office designated
pursuant to Section 602, with respect to the Securities of each series or any
Tranche thereof, 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 Tranche and the registration of
transfer thereof. The Company shall designate one Person to maintain the
Security Register for the Securities of each series on a consolidated basis, and
such Person is referred to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the Company may
designate one or more of its offices as an office in which a register with
respect to the Securities of one or more series, or any Tranche or Tranches
thereof, shall be maintained, and the Company may designate itself the Security
Registrar with respect to one or more of such series. The Security Register
shall be open for inspection by the Trustee and the Company at all reasonable
times.
Except as otherwise specified as contemplated by Section 301
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 602 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 301
with respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged at the option of the Holder,
for one or more new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee or
the Security Registrar) be duly endorsed or shall be accompanied by a written
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<PAGE>
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 301 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 Section
304, 406 or 1206 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.
SECTION 306. 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 of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the destruction, loss or
theft of any Security and (b) such security or indemnity as may be reasonably
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such Security, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone
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<PAGE>
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 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301 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.
[Subject to Section 312]7 any interest on any Security of any
series which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the Holder on the related Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (a) or (b) below:
(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 (herein called a "Special Record Date") for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 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
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7 Bracketed language will be inserted in the Indenture under which SKIS
or other subordinated Securities will be issued.
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<PAGE>
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 305, 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 308. Persons Deemed Owners.
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 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Security Registrar, be delivered to the Security Registrar and, if not
theretofore canceled, shall be promptly canceled by the Security Registrar. The
Company may at any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be promptly canceled by
the Security Registrar. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Security Registrar shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and 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 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
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<PAGE>
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or any Tranche thereof, interest on the Securities
of each series shall be computed on the basis of a 360-day year consisting of
twelve 30-day months and on the basis of the actual number of days elapsed
within any month in relation to the deemed 30 days of such month.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a composite
currency (the "Required Currency"), except as otherwise specified with respect
to such Securities as contemplated by Section 301, 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, and in no circumstances shall the Trustee be liable therefor except in
the case of its negligence or willful misconduct.
[SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the Securities of any
series hereunder, to extend interest payment periods on all Securities of one or
more series, or Tranches thereof, if so specified as contemplated by Section 301
with respect to such Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such securities .]8
ARTICLE FOUR
Redemption of Securities
SECTION 401. 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 301
for Securities of such series or Tranche) in accordance with this Article.
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8 Bracketed language will be inserted in the Indenture under which SKIS
or other subordinated Securities will be issued.
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<PAGE>
SECTION 402. 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 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction or condition.
SECTION 403. 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 Security Registrar from the Outstanding Securities of such
series or Tranche not previously called for redemption, by such method as shall
be provided for any particular series, or, in the absence of any such provision,
by such method of random selection as the Security Registrar shall deem fair and
appropriate and which may, in any case, provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of such
series or Tranche or any integral multiple thereof) 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 Security Registrar, 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 Security Registrar shall promptly notify the Company and
the Trustee in writing of the Securities selected for redemption and, in the
case of any Securities selected to be redeemed in part, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
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<PAGE>
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or Tranche
are to be redeemed, the identification of the particular Securities to
be redeemed and the portion of the principal amount of any Security to
be redeemed in part,
(d) that on the Redemption Date the Redemption Price, together
with accrued interest, if any, to the Redemption Date, will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, unless it shall have been specified as contemplated by Section
301 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, and
(g) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, 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 701, 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 money was not so received and such redemption
was not required to be made, and the Paying Agent or Agents for the Securities
otherwise to have been redeemed shall promptly return to the Holders thereof any
of such Securities which had been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a condition for
redemption as aforesaid, shall be given by the Company or, at the Company's
request, by the Security Registrar in the name and at the expense of the
Company. Notice of mandatory redemption of Securities shall be given by the
Security Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
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<PAGE>
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 301 with
respect to such Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such Security, any
installment of interest on any Security the Stated Maturity of which installment
is on or prior to the Redemption Date shall be payable to the Holder of such
Security, or one or more Predecessor Securities, registered as such at the close
of business on the related Regular Record Date according to the terms of such
Security and subject to the provisions of Section 307.
SECTION 406. 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.
ARTICLE FIVE
Sinking Funds
SECTION 501. 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 301 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
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Tranche thereof, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 502. 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 502. 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; 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 503. Redemption of Securities for Sinking Fund.
Not less than 45 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;
(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 502 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, 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 403 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner
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provided in Section 404. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
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.
SECTION 602. 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 106. If at any
time the Company shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or shall fail to
furnish the Trustee with the address thereof, payment of such Securities shall
be made, registration of transfer or exchange thereof may be effected and
notices and demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of one or more series,
or any Tranche thereof, for any or all of the foregoing purposes and may from
time to time rescind such designations; provided, however, that, unless
otherwise specified as contemplated by Section 301 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 106, of any such designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the Company,
in which event the Company shall perform all functions to be performed at such
office or agency.
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SECTION 603. 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
sum 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 default,
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 has become
due and payable shall be paid to the Company on Company Request, or, if then
held by the Company, shall be discharged from such trust; and, upon such payment
or discharge, the Holder of such Security shall, as an unsecured general
creditor and not as a Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and remaining unpaid, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such payment to the Company, 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 30 days from the date of such mailing, any unclaimed
balance of such money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article Eleven, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties used or
useful in the conduct of its business 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 all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as, in the judgment of the Company, may be necessary so that the
business carried on in connection therewith may be properly conducted; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation and maintenance
of any of its properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than ______________ 1 in each year, commencing
___________ 1, 199_ the Company shall deliver to the Trustee an Officer's
Certificate which need not comply with Section 102, executed by the principal
executive officer or 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.
SECTION 607. 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 602 or any additional
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covenant or restriction specified with respect to the Securities of any series,
or any Tranche thereof, as contemplated by Section 301 if before the time for
such compliance the Holders of at least a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches with respect to which
compliance with Section 602 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 604, 605, 606 or Article Eleven if before
the time for such compliance the Holders of at least a majority in principal
amount of Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition; but, in the case of (a) or
(b), no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
(a) This Indenture shall upon Company Request cease to be of
further effect (except that Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 907 and 915 and this Article Seven shall survive), and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(i) either
(1) all Securities theretofore authenticated and
delivered (other than (A) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306 and (B) Securities deemed to have
been paid in accordance with Section 702(a)) have been
delivered to the Trustee for cancellation; or
(2) all Securities not theretofore delivered to the
Trustee for cancellation (other than Securities described in
clause (1)(A) above) shall be deemed to have been paid in
accordance with Section 702(a);
(ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been
complied with.
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(b) In the event there shall be Securities of two or more
series Outstanding hereunder, the Trustee shall be required to execute an
instrument acknowledging satisfaction and discharge of this Indenture only if
requested to do so with respect to Securities of all series as to which it is
Trustee and if the other conditions thereto as required herein are met. In the
event there shall be two or more Trustees hereunder, then the effectiveness of
each such instrument from each Trustee hereunder shall be conditioned upon
receipt of such instruments from each other Trustee hereunder.
(c) Upon satisfaction and discharge of this Indenture as
provided in this Section 701, the Trustee shall assign, transfer and turn over
to the Company, subject to the lien provided by Section 907, 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 703.
SECTION 702. Legal and Covenant Defeasance.
(a) On and after the date the Company shall have fulfilled the
conditions of Section 702(c), it shall be deemed to have paid and discharged the
entire indebtedness represented by any Security or Securities of any series or
Tranche, or any portion of the principal amount thereof, and satisfied its
obligations under this Indenture with respect thereto (hereinafter, "Legal
Defeasance"). Such Securities shall thereafter be deemed to be "Outstanding"
solely for the purposes of Section 703 hereof and the following provisions of
this Indenture shall survive with respect thereto: (i) the rights of Holders of
such Securities to receive, solely from the trust fund described in Section
702(c), payments in respect of the principal of, premium, if any, and interest
on such Securities when such payments are due, or on the redemption date, as the
case may be, and (ii) the obligations of the Company and the Trustee with
respect to such Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907 and 915 and this Article Seven. The Company may
elect to effect a Legal Defeasance under this Section 702(a) notwithstanding the
prior election to effect a Covenant Defeasance under Section 702(b) with respect
to Securities or portions thereof of the same series or Tranche.
(b) The Company shall be released from its obligations under
the covenants contained in Sections 604 (except with respect to maintaining its
corporate existence), 605 and 606 and Article Eleven with respect to any
Security or Securities of any series or Tranche or any portion of the principal
amount thereof (and under any covenants inserted pursuant to Section 301(v), in
any supplemental indenture, Board Resolution or Officers' Certificate
establishing such Security), on and after the date the conditions in Section
702(c) are satisfied (hereinafter, "Covenant Defeasance"). Such Securities or
portions thereof shall thereafter be deemed not "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. In the
event of a Covenant Defeasance, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
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omission to comply shall not constitute a Default or an Event of Default under
Section 801(c) with respect to such Securities or portions thereof, but, except
as specified above, the remainder of this Indenture and such Securities or
portions thereof shall continue to be in full force and effect.
(c) The following shall be the conditions to any defeasance
under this Section 702:
(i) there shall have been irrevocably
deposited with the Trustee, in trust: (1) money in an amount
which shall be sufficient, or (2) 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, shall be sufficient, or (3) a combination of (1) or
(2) which shall be sufficient, 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; provided,
however, that (x) in the case of the provision for payment or
redemption of less than all the Securities of any series or
Tranche, such Securities or portions thereof shall have been
selected by the Security Registrar as provided herein and, in
the case of a redemption, the notice requisite to the validity
of such redemption shall have been given or irrevocable
authority shall have been given by the Company to the Trustee
to give such notice, under arrangements satisfactory to the
Trustee and (y) such money or the proceeds of such Eligible
Obligations shall either (i) have been on deposit with the
Trustee for a period of at least 90 days, or (ii) the Trustee
shall have received an Opinion of Counsel reasonably
satisfactory in form to the Trustee to the effect that
payments to Holders with such moneys as proceeds are not
recoverable as a preference under any applicable United States
federal or state law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganization or
relief of debtors;
(ii) if such deposit shall have been made
prior to the Maturity of such Securities, the Company shall
have delivered to the Trustee a Company Order stating that the
money and Eligible Obligations deposited with the Trustee in
accordance with this Section shall be held by the Trustee, in
trust, as provided in Section 703;
(iii) if Eligible Obligations shall have
been deposited with the Trustee, the Company shall have
delivered to the Trustee an opinion of an independent public
accountant of nationally recognized standing, selected by the
Company, to the effect that the requirements set forth in
clause (i) above have been satisfied;
(iv) the Company shall have delivered to
the Trustee an Opinion of Counsel in the form described in
Section 702(d);
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(v) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein relating to
either the Legal Defeasance under Section 702(a) or the
Covenant Defeasance under Section 702(b), as the case may be,
have been complied with; and
(vi) the deposit shall not result in the
Company, the Trustee or the trust being deemed an "investment
company" under the Investment Company Act of 1940, as amended.
(d) (i) In the case of Legal Defeasance under Section 702(a),
the Opinion of Counsel referred to in Section 702(c) shall be in a form
reasonably satisfactory to the Trustee and shall be (x) accompanied by a ruling
of the Internal Revenue Service issued to the Company, or (y) based on a change
in law or regulation occurring after the date hereof, to the effect that the
Holders will not realize income, gain or loss for federal income tax purposes as
a result of such Legal Defeasance but will realize income, gain or loss on the
Securities, including payments of interest thereon, in the same amounts, in the
same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred; and
(ii) In the case of Covenant Defeasance
under Section 702(b), the Opinion of Counsel referred to in
Section 702(c) shall be in a form reasonably satisfactory to
the Trustee and to the effect that the Holders will not
realize income, gain or loss for Federal income tax purposes
as a result of such Covenant Defeasance but will realize
income, gain or loss on the Securities, including payments
of interest thereon, in the same amounts, in the same manner
and at the same times as would have been the case if such
Covenant Defeasance had not occurred.
(e) In the event that the Company effects a Legal Defeasance,
upon receipt by the Trustee of money or Eligible Obligations, or both, in
accordance with Section 702(c), together with the documents required by such
paragraph, 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 is deemed to have been satisfied and discharged.
(f) If payment of less than all of the Securities of any
series, or any Tranche thereof, is to be provided for in the manner and with the
effect provided in this Section, the Security Registrar shall select such
Securities, or portions of principal amount thereof in the manner specified by
Section 403 for selection for redemption of less than all the Securities of a
series or Tranche.
(g) In the event that Securities which shall be deemed to have
been paid as a result of a Legal Defeasance (or with respect to which a Covenant
Defeasance has been effected) do not mature and are not to be redeemed within
the 60-day period commencing with the date of the deposit with the Trustee of
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moneys or Eligible Obligations, 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.
(h) The Company shall pay, and shall indemnify the Trustee and
each Holder of Securities which are deemed to have been paid as provided in this
Section against any tax, fee or other charge imposed on or assessed against the
Eligible Obligations deposited with the Trustee or the principal or interest
received by the Trustee in respect of such Eligible Obligations.
(i) Anything herein to the contrary notwithstanding, if, at
any time after a Legal Defeasance or a Covenant Defeasance is effected pursuant
to this Section (without regard to the provisions of this paragraph (i)), the
Trustee shall be required to return the money or Eligible Obligations, or
combination thereof, deposited with it to the Company or its representative
under any applicable federal or state bankruptcy, insolvency or other similar
law, the indebtedness of the Company in respect of such Security shall thereupon
be deemed retroactively not to have been satisfied and discharged, as aforesaid,
and to remain Outstanding, or, as the case may be, the obligations under the
above-mentioned covenants in respect of such Security shall thereupon be deemed
retroactively not to have been released.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money deposited with
the Trustee pursuant to Section 702(c)(i), 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 603; 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
deposited with the Trustee, if not then needed for such purpose, shall, to the
extent practicable, be invested in Eligible Obligations of the type described in
Section 702(c)(i)(2) maturing at such times and in such amounts as shall be
sufficient 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 by the Trustee, free and clear of any
trust, lien or pledge under this Indenture except the lien provided by Section
907; and provided, further, that, so long as there shall not have occurred and
be continuing an Event of Default, any moneys held by the Trustee 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
907.
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ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, on any Security of such
series within sixty (60) days after the same becomes due and payable
[(whether or not payment is prohibited by the provisions of Article
Fifteen hereof); provided, however, that a valid extension of the
interest payment period by the Company as contemplated in Section 312
of this Indenture shall not constitute a failure to pay interest for
this purpose]9; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series within three (3) Business Days after its
Maturity [(whether or not payment is prohibited by the provisions of
Article Fifteen hereof)]; or
(c) failure to perform or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or breach of which is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series
of Securities other than such series) for a period of 60 days after
there has been given, by registered or certified mail, to the Company
by the Trustee, or to the Company and the Trustee by the Holders of at
least 33% in principal amount of the Outstanding Securities of such
series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder, unless the Trustee, or the Trustee and the
Holders of a principal amount of Securities of such series 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 of such series, 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
- --------
9 Bracketed language will be inserted in the Indenture under
which SKIS or other subordinated Securities will be issued.
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than the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for the
Company or for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such decree or order
for relief or any such other decree or order shall have remained
unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in a case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the
authorization of such action by the Board of Directors; or
(f) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be continuing
with respect to Securities of any series at the time Outstanding, then in every
such case the Trustee or the Holders of not less than 33% in principal amount of
the Outstanding Securities of such series 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 301) of all of the Securities of such series 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) shall become immediately
due and payable [(provided that the payment of principal of such securities
shall remain subordinated to the extent provided in Article Fifteen hereof)]10;
provided, however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities, the Trustee or
the Holders of not less than 33% in aggregate principal amount of the
Outstanding Securities of all such series, considered as one class, may make
such declaration of acceleration, and not the Holders of the Securities of any
one of such series. -------- 10 Bracketed language will be inserted in the
Indenture under which SKIS or other subordinated Securities will be issued.
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At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made and before a judgment
or decree for payment of the money due shall have been obtained by the Trustee
as hereinafter in this Article provided, the Event or Events of Default giving
rise to such declaration of acceleration shall, without further act, be deemed
to have been waived, 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
(1) all overdue interest on all Securities
of such series;
(2) the principal of and premium, if any, on
any Securities of such series which have become due otherwise
than by such declaration of acceleration and interest thereon
at the rate or rates prescribed therefor in such Securities;
(3) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate
or rates prescribed therefor in such Securities;
(4) all amounts due to the Trustee under
Section 907; and
(b) any other Event or Events of Default with respect to
Securities of such series, 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 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a) or (b) of
Section 801 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 of the series with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Securities for principal
and premium, if any, and interest, if any, and, 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 907.
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
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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 with respect to Securities of any
series 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 of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for amounts due to the Trustee under
Section 907) 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 907.
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 805. 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
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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 806. Application of Money Collected.
[Subject to the provisions of Article Fifteen,]11 any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money 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 907;
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 Company.
SECTION 807. 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 with respect to the
Securities of such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series in respect
of which an Event of Default shall have occurred and be continuing,
considered as one class, shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
- --------
11 Bracketed language will be inserted in the Indenture under which SKIS
or other subordinated Securities will be issued.
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(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 of all series in respect of which an Event of Default shall
have occurred and be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. 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 307 [and 3121]12 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 809. 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, and 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.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section
306, 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
- --------
12 Bracketed language will be inserted in the Indenture under which SKIS
or other subordinated Securities will be issued.
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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 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a majority in principal
amount of the Outstanding Securities of such series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided, however, that
if an Event of Default shall have occurred and be continuing with respect to
more than one series of Securities, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all such series, considered as
one class, shall have the right to make such direction, and not the Holders of
the Securities of any one of such series; and provided, further, 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 813. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1202 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
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Upon any such waiver, such default shall cease to exist, and
any and all Events of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 814. 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 Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, 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 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(1) the Trustee undertakes to perform, with
respect to Securities of such series, such duties and only
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such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) in the absence of bad faith on its part,
the Trustee may, with respect to Securities of such series,
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee shall
exercise, with respect to Securities of such series, such of the rights
and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct, except that
(1) this subsection shall not be construed
to limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding Securities
of any one or more series, as provided herein, relating to the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(4) 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.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
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liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder with respect to the Securities of any series to the Holders of
Securities of such series 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 801(c), no such notice to Holders shall be given until at least 75 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 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
or as otherwise expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, 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,
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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; and
(h) except as otherwise provided in Section 801, the Trustee
shall not be charged with knowledge of any Event of Default with
respect to the Securities of any series for which it is acting as
Trustee unless either (1) a Responsible Officer of the Trustee shall
have actual knowledge of the Event of Default or (2) written notice of
such Event of Default shall have been given to the Trustee by the
Company, any other obligor on such Securities or by any Holder of such
Securities.
SECTION 904. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities (except
the Trustee's certificates of authentication) shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 905. 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 908 and 913, 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 906. 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 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 907. Compensation and Reimbursement.
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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
compensation and the expenses and disbursements of its agents and
counsel), except to the extent that any such expense, disbursement or
advance may be attributable to its negligence, wilful misconduct or bad
faith; and
(c) indemnify the Trustee and hold it harmless from and
against, any loss, liability or expense 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 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,
wilful 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 all property and funds held or collected by the Trustee as such
other than property and funds held in trust under Section 703 (except as
otherwise provided in Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the negligence, wilful
misconduct or bad faith of any Trustee hereunder shall not affect the rights of
any other Trustee hereunder.
SECTION 908. 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.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws
of the United States, any State or Territory thereof or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by Federal or State
authority, or
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(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, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 910. 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 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 911 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section 909
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) 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,
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(x) the Company by a Board Resolution may remove the Trustee with
respect to all Securities or (y) subject to Section 814, 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 in clause (y) in
subsection (d) of this Section), with respect to the Securities of one
or more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 911. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the outstanding Securities of such
series 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
911, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section
911, any Holder who has been a bona fide Holder of a Security of such
series 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 with respect to the Securities
of such series.
(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 911, 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 911, all as of such date, and all other provisions of this
Section and Section 911 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 with respect to the Securities of any
series and each appointment of a successor Trustee with respect to
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the Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities of such
series as their names and addresses appear in the Security Register.
Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its
corporate trust office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, 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.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee, upon payment of all sums owed
to it, shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
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with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any instruments which fully vest in and confirm to such
successor Trustee all such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case may be.
(d) 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 912. 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 913. 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" means any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or incurred
by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
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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 thirty-three per centum (33%) 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 so appointed to more fully
confirm to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
conditions:
(a) the Securities shall be authenticated and delivered, and
all rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder, shall
be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by the Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform 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
(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 915. 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 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States, any State or territory thereof or the
District of Columbia or the Commonwealth of Puerto Rico, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $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 to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
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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 Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, in accordance
with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 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.
BOATMEN'S TRUST COMPANY
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Signatory
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 102 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.
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ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than _________ 1 and ________ 1 in
each year, commencing _________ 1, 199_, 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 1002. Reports by Trustee and Company.
Not later than ____ 1 in each year, commencing ____ 1, 199_,
the Trustee shall transmit to the Holders and the Commission a report, dated as
of the next preceding May 1, with respect to any events and other matters
described in Section 313(a) of the Trust Indenture Act, in such manner and to
the extent required by the Trust Indenture Act. The Trustee shall transmit to
the Holders and the Commission, and the Company shall file with the Trustee
(within thirty (30) days after filing with the Commission in the case of reports
which pursuant to the Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such manner, as shall
be required by the Trust Indenture Act.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. 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 its properties and assets
substantially as an entirety 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
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a Person organized and existing
under the laws of the United States, any State thereof or the District
of Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and
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premium, if any, and interest, if any, on all Outstanding Securities
and the performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness for borrowed money which becomes an
obligation of the Company as a result of such transaction as having
been incurred by the Company at the time of such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating 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 transactions have been
complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, or other transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation formed by such
consolidation or into which the Company is merged or the Person to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. 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
Eleven; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
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Outstanding, Securities of one or more specified series, or one or more
specified Tranches thereof, or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities Outstanding hereunder; 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 indenture supplemental hereto 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 1202 hereof or when no Security of such series or
Tranche remains Outstanding; or
(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any series
or Tranche as contemplated by Sections 201 and 301; 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 of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(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
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
(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;
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provided, however, that any such place is located in New York, New
York, or St. Louis, Missouri; or
(k) 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 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 date of the execution and delivery of this
Indenture 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 effect or evidence such
changes or additional provisions; or
(y) if any such amendment shall permit one
or more changes to, or the elimination of, any provisions
hereof which, at the date of the execution and delivery hereof
or at any time thereafter, are required by the Trust Indenture
Act to be contained herein, this Indenture shall be deemed to
have been 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
evidence such amendment hereof.
SECTION 1202. Supplemental Indentures With Consent of Holders.
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,
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
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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:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on [(except as provided in
Section 312 hereof)],13 any Security, or reduce the principal amount
thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of calculating
such rate or reduce any premium payable 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 802, 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 of any
Security (or, in the case of redemption, on or after the Redemption
Date), without, in any such case, the consent of the Holder of such
Security, or
(b) 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 1304 for quorum or voting, without, in any such case, the
consent of the Holders of each Outstanding Security of such series or
Tranche, or
(c) modify any of the provisions of this Section, Section 607
or Section 813 with respect to the Securities of any series, or any
Tranche thereof, or 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; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of
Sections 911(b) and 1201(h).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or of one or more
Tranches thereof, or which 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.
- --------
13 Bracketed language will be inserted in the Indenture under
which SKIS or other subordinated Securities will be issued.
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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. A
waiver by a Holder of such Holder's right to consent under this Section shall be
deemed to be a consent of such Holder.
SECTION 1203. 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 901) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. 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 1205. 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 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities of any
series, or any Tranche thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
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SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of Securities shall have
been established in a Board Resolution or an Officer's Certificate pursuant to a
Board Resolution as contemplated by Section 301, 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, as the case may be, delivered to, and accepted by, the Trustee;
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
acceptance thereof by the Trustee, any such supplemental Board Resolution or
Officer's Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. 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 1302. 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 1301, to be held at such time and at such
place in St. Louis, Missouri, 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 106, 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 33% in aggregate principal
amount of all of such series and Tranches, considered as one class, for any
purpose specified in Section 1301, 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
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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 St. Louis, Missouri, 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 by such
of them as are not present at the meeting in person or by proxy, and by the
Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of one or more, or all, series, or any Tranche or Tranches thereof, a Person
shall be (a) a Holder of one or more Outstanding Securities of such series or
Tranches, or (b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who shall be entitled to
attend any 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 1304. 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 1305(e), notice of the reconvening of any
meeting adjourned for more than 30 days shall be given as provided in Section
1302(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
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constitute a quorum.
Except as limited by Section 1202, 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.
SECTION 1305. 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 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104.
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 104 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 1302(b), in which case the
Company or the Holders of Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
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(d) At any meeting each Holder or proxy shall be entitled to
one vote for each $1 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 1302 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 1306. 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 the secretary of the meeting their
verified written reports of all votes cast at the meeting. A record 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 1302
and, if applicable, Section 1304. 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 1307. 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 written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
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SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, or any part thereof,
or for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied herefrom or therefrom, and 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.
[ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior Indebtedness.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of the Securities of each series, by its acceptance
thereof, likewise covenants and agrees, that the payment of the principal of and
premium, if any, and interest, if any, on each and all of the Securities is
hereby expressly subordinated, to the extent and in the manner set forth in this
Article, in right of payment to the prior payment in full of all Senior
Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its behalf to take
such action as may be necessary or appropriate to effectuate the subordination
as provided in this Article, and appoints the Trustee its attorney-in-fact for
any and all such purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or bankruptcy proceedings
or any receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 1503, that (i) a default shall have occurred with respect
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to the payment of principal of or interest on or other monetary amounts due and
payable on any Senior Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or interest or other monetary
amounts due and payable) in respect of any Senior Indebtedness, as defined
therein or in the instrument under which the same is outstanding, permitting the
holder or holders thereof to accelerate the maturity thereof (with notice or
lapse of time, or both), and such default shall have continued beyond the period
of grace, if any, in respect thereof, and, in the cases of subclauses (i) and
(ii) of this clause (b), such default shall not have been cured or waived or
shall not have ceased to exist, or (c) that the principal of and accrued
interest on the Securities of any series shall have been declared due and
payable pursuant to Section 801 and such declaration shall not have been
rescinded and annulled as provided in Section 802, then:
(1) the holders of all Senior Indebtedness shall
first be entitled to receive payment of the full amount due thereon, or
provision shall be made for such payment in money or money's worth,
before the Holders of any of the Securities are entitled to receive a
payment on account of the principal of or interest on the indebtedness
evidenced by the Securities, including, without limitation, any
payments made pursuant to Articles Four and Five;
(2) any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities, to which any Holder or the Trustee would be entitled except
for the provisions of this Article, shall be paid or delivered by the
Person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may
have been issued, ratably according to the aggregate amounts remaining
unpaid on account of such Senior Indebtedness held or represented by
each, to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid after giving effect to any concurrent
payment or distribution (or provision therefor) to the holders of such
Senior Indebtedness, before any payment or distribution is made to the
Holders of the indebtedness evidenced by the Securities or to the
Trustee under this Indenture; and
(3) in the event that, notwithstanding the foregoing,
any payment by, or distribution of assets of, the Company of any kind
or character, whether in cash, property or securities, in respect of
principal of or interest on the Securities or in connection with any
repurchase by the Company of the Securities, shall be received by the
Trustee or any Holder before all Senior Indebtedness is paid in full,
or provision is made for such payment in money or money's worth, such
payment or distribution in respect of principal of or interest on the
Securities or in connection with any repurchase by the Company of the
Securities shall be paid over to the holders of such Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been issued, ratably
as aforesaid, for application to the payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been
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paid in full, after giving effect to any concurrent payment or
distribution (or provision therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Eligible Obligations pursuant to
Section 701 (provided all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest thereon will not be subject
to any rights of holders of Senior Indebtedness including, without limitation,
those arising under this Article Fifteen; provided that no event described in
clauses (d) and (e) of Section 801 with respect to the Company has occurred
during such 123-day period.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan or reorganization or readjustment which are subordinate
in right of payment to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article Eleven hereof
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Eleven hereof. Nothing in Section 1501 or in this Section 1502
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 907.
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Company to make any payment on or perform
any other obligation in respect of Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed, guaranteed or
otherwise created such indebtedness or obligation, shall not be deemed a default
under clause (b) of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation and (ii) either (A)
no final judgment relating to such dispute shall have been issued against the
Company which is in full force and effect and is not subject to further review,
including a judgment that has become final by reason of the expiration of the
time within which a party may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or appeal has been issued, the
Company shall in good faith be prosecuting an appeal or other proceeding for
review and a stay or execution shall have been obtained pending such appeal or
review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash (or securities or
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other property satisfactory to such holders) in full payment of such Senior
Indebtedness then outstanding. Upon the payment in full of all Senior
Indebtedness, the Holders of the Securities shall be subrogated to the rights of
the holders of Senior Indebtedness to receive any further payments or
distributions of cash, property or securities of the Company applicable to the
holders of the Senior Indebtedness until all amounts owing on the Securities
shall be paid in full; and such payments or distributions of cash, property or
securities received by the Holders of the Securities, by reason of such
subrogation, which otherwise would be paid or distributed to the holders of such
Senior Indebtedness shall, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders, be deemed to be a payment by
the Company to or on account of Senior Indebtedness, it being understood that
the provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
the Senior Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness
in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Upon any payment or distribution of assets or securities of
the Company referred to in this Article, the Trustee and the Holders shall be
entitled to rely upon any order or decree of a court of competent jurisdiction
in which such dissolution, winding up, liquidation or reorganization proceedings
are pending for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon, and all other facts pertinent thereto or
to this Article.
SECTION 1506. Priority of Senior Indebtedness Upon Maturity.
Upon the maturity of the principal of any Senior Indebtedness
by lapse of time, acceleration or otherwise, all matured principal of Senior
Indebtedness and interest and premium, if any, thereon shall first be paid in
full before any payment of principal or premium or interest, if any, is made
upon the Securities or before any Securities can be acquired by the Company or
any sinking fund payment is made with respect to the Securities (except that
required sinking fund payments may be reduced by Securities acquired before such
maturity of such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
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The Trustee shall be entitled to all rights set forth in this
Article with respect to any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness. Nothing in this Article
shall deprive the Trustee of any of its rights as such holder.
SECTION 1508. Notice to Trustee to Effectuate Subordination.
Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee shall have received
written notice thereof from the Company, from a Holder or from a holder of any
Senior Indebtedness or from any representative or representatives of such holder
and, prior to the receipt of any such written notice, the Trustee shall be
entitled, subject to Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth Business Day preceding the
date upon which by the terms hereof any such moneys may become payable for any
purpose, or in the event of the execution of an instrument pursuant to Section
702 acknowledging satisfaction and discharge of this Indenture, then if prior to
the second Business Day preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice provided for in this
Section, then, anything herein contained to the contrary notwithstanding, the
Trustee may, in its discretion, receive such moneys and/or apply the same to the
purpose for which they were received, and shall not be affected by any notice to
the contrary, which may be received by it on or after such date; provided,
however, that no such application shall affect the obligations under this
Article of the persons receiving such moneys from the Trustee.
SECTION 1509. Modification, Extension, Etc., of Senior Indebtedness.
The holders of Senior Indebtedness may, without affecting in
any manner the subordination of the payment of the principal of and premium, if
any, and interest, if any, on the Securities, at any time or from time to time
and in their absolute discretion, agree with the Company to change the manner,
place or terms of payment, change or extend the time of payment of, or renew or
alter, any Senior Indebtedness, or amend or supplement any instrument pursuant
to which any Senior Indebtedness is issued, or exercise or refrain from
exercising any other of their rights under the Senior Indebtedness including,
without limitation, the waiver of default thereunder, all without notice to or
assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
objectives as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and
shall not be liable to any such holders if it shall mistakenly pay over or
deliver to the Holders or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
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SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Sections 1507, 1508 and 1510 shall not apply to the Company if it
acts as Paying Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any time or in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
SECTION 1513. Effect of Subordination Provisions; Termination.
Notwithstanding anything contained herein to the contrary,
other than as provided in the immediately succeeding sentence, all the
provisions of this Indenture shall be subject to the provisions of this Article,
so far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fifteen shall be of no further effect, and the
Securities shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness, if the Company shall have delivered to the
Trustee a notice to such effect. Any such notice delivered by the Company shall
not be deemed to be a supplemental indenture for purposes of Article Twelve
hereof.]14
---------------------------
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.
- --------
14 Bracketed language will be inserted in the Indenture under which SKIS
or other subordinated Securities will be issued.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
UNION ELECTRIC COMPANY
By:_______________________________
[SEAL]
ATTEST:
- ---------------------
BOATMEN'S TRUST COMPANY, Trustee
By: _______________________________
[SEAL]
ATTEST:
- ------------------------
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STATE OF MISSOURI )
) ss.:
CITY OF ST. LOUIS )
On the _____ day of _________, 1996, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is the __________________________ of Union Electric Company, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
------------------------------
Notary Public
[Notarial Seal]
STATE OF MISSOURI )
) ss.:
CITY OF ST. LOUIS )
On the _____ day of ____________, 1996, before me personally
came ____________, to me known, who, being by me duly sworn, did depose and say
that he is a ___________________ of Boatmen's Trust Company, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
------------------------------
Notary Public
[Notarial Seal]
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EXHIBIT 4.13
WSP&R
DRAFT
11/22/96
[FORM OF EXECUTIVE COMMITTEE RESOLUTIONS APPROVING
ISSUANCE AND SALE OF SUBORDINATED DEBT SECURITIES]
RESOLVED, that the transaction negotiated with the
Underwriters represented by Lehman Brothers Inc. for the purchase from
Union Electric Company (the "Company") of $___,000,000 principal amount
of the Company's Debentures to be issued pursuant to an Indenture (For
Unsecured Subordinated Debt Securities) dated as of December __, 1996
(the "Subordinated Indenture") from the Company to Boatmen's Trust
Company, as trustee (the "Subordinated Indenture Trustee"), which
transaction provides for an interest rate to be borne by the securities
of ___% and a price to be paid to the Company for the Debentures of at
least $______________ is hereby approved and accepted; and that the
execution and delivery of the Underwriting Agreement dated December
___, 1996 by the officers of the Company be and hereby is approved,
ratified and confirmed, and such officers be and hereby are authorized
to take all such further actions as they may deem necessary or
desirable in order to carry into effect the terms and provisions of
such Underwriting Agreement.
RESOLVED, that:
(i) the securities to be issued under the Subordinated
Indenture shall be designated "___% Subordinated Capital
Income Securities (Series A Subordinated Deferrable Interest
Debentures)" (the "SKIS"); all capitalized terms used in these
resolutions and not defined herein shall have the meaning set
forth in the Subordinated Indenture;
(ii) the SKIS shall be limited in aggregate principal amount
to $___,000,000 at any time Outstanding;
(iii) the SKIS shall mature and the principal thereof shall be
due and payable on December 15, 2045, together with all
accrued and unpaid interest thereon to, but not including,
such date;
(iv) the SKIS shall bear interest from the date of original
issuance (which is anticipated to be December __, 1996) at the
rate of ___% per annum payable semi-annually in arrears on
June 15 and December 15 of each year (each, an "Interest
Payment Date") commencing [June 15, 1997]. The amount of
interest payable for any such period will be computed on the
<PAGE>
basis of a 360-day year of twelve 30-day months. Interest on
the SKIS will accrue from the date of original issuance but if
interest has been paid on such SKIS, then from the most recent
Interest Payment Date through which interest has been paid. In
the event that any Interest Payment Date is not a Business
Day, then payment of interest payable on such date will be
made on the next succeeding date which is a Business Day (and
without any interest or other payment in respect of such
delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such Interest Payment Date;
(v) each installment of interest on the SKIS shall be payable
to the Person in whose name such SKIS are registered at the
close of business on the Business Day next preceding the
corresponding Interest Payment Date (the "Regular Record
Date") for the SKIS. Any installment of interest on the SKIS
not punctually paid or duly provided for shall forthwith cease
to be payable to the Holders on such Regular Record Date, and
may be paid to the person in whose name the SKIS is registered
at the close of business on a Special Record Date to be fixed
by the Subordinated Indenture Trustee for the payment of such
defaulted interest, notice whereof shall be given to the
Holders of the SKIS not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the SKIS may be listed, and upon
such notice as may be required by such exchange, all as more
fully provided in the Subordinated Indenture;
(vi) the principal and each installment of interest on the
SKIS shall be payable at the office or agency of the Company
in St. Louis, Missouri. For so long as the SKIS are registered
in the name of The Depository Trust Company ("DTC") or its
nominee, the principal and the interest due on the SKIS will
be payable by the Company or its agent to DTC for payment to
its participants for subsequent disbursement to beneficial
owners. The Company will initially be the Paying Agent and the
Registrar for the SKIS;
(vii) the SKIS will not be redeemable prior to December __,
2006; thereafter, the SKIS will be redeemable at the option of
the Company, in whole or in part, at any time on or after
December __, 2006 at the following redemption prices (in each
case expressed in percentages of principal amount):
-2-
<PAGE>
If Redeemed During 12 Month Period Redemption
Beginning December , Price
2006........................... %
2007...........................
2008...........................
2009...........................
2010...........................
2011...........................
2012...........................
2013...........................
2014...........................
2015...........................
2016 and thereafter................... 100%
in each case, upon not less than 30 nor more than 60 days'
notice, together with accrued interest to, but not including,
the date fixed for redemption;
(viii) so long as any SKIS are Outstanding, the failure of the
Company to pay interest on any SKIS within 60 days after the
same becomes due and payable (whether or not payment is
prohibited by the provisions of Article Fifteen of the
Subordinated Indenture) shall constitute an Event of Default;
provided, however, that a valid extension of the interest
payment period by the Company as contemplated in Section 312
of the Subordinated Indenture and paragraph (x) of these Board
Resolutions shall not constitute a failure to pay interest for
this purpose;
(ix) pursuant to Section 312 of the Subordinated Indenture,
the Company shall have the right, at any time and from time to
time during the term of the SKIS, to extend the interest
payment period to a period not exceeding 10 consecutive
semi-annual periods (an "Extended Interest Payment Period"),
and at the end of such Extended Interest Payment Period, the
Company shall pay all interest accrued and unpaid (together
with interest thereon at the same rate as specified for the
SKIS to the extent permitted by applicable law) through the
last day of such Extended Interest Payment Period provided
that if any principal amount of the SKIS is paid on such day,
then not including interest for such day with respect to such
amount; provided, however, that during such Extended Interest
Payment Period, the Company shall not declare or pay any
dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock
or make any guarantee payments with respect to the foregoing.
Prior to the termination of any such Extended Interest Payment
-3-
<PAGE>
Period, the Company may further extend the interest payment
period, provided that such Extended Interest Payment Period
together with all such previous and further extensions thereof
may not exceed 10 consecutive semi-annual periods or extend
beyond the Stated Maturity of the SKIS. Upon the termination
of any Extended Interest Payment Period and the payment of all
amounts then due, the Company may select a new Extended
Interest Payment Period, subject to the above requirements. No
interest during an Extended Interest Payment Period, except at
the end thereof, shall be due and payable;
(x) the Company shall give the Holders of the SKIS and the
Subordinated Indenture Trustee written notice of its selection
of such Extended Interest Payment Period ten (10) Business
Days prior to the earlier of (i) the next succeeding Interest
Payment Date and (ii) the date the Company is required to give
notice to Holders of the SKIS (or, if applicable, to the New
York Stock Exchange or other applicable self-regulatory
organization) of the record or payment date of such interest
payment, but in any event not less than two Business Days
prior to such record date. The semi-annual period in which any
notice is given pursuant to this paragraph shall constitute
one of the 10 semi-annual periods which comprise the maximum
Extended Interest Payment Period;
(xi) the SKIS will be originally issued in global form payable
to Cede & Co., and will, unless and until the SKIS are
exchanged in whole or in part for certificated SKIS registered
in the names of the various beneficial holders thereof,
contain restrictions on transfer, substantially as described
in the form of SKIS; and
(xii) the SKIS shall have such other terms and provisions as
are provided in the form of subordinated debt security set
forth in Exhibit B hereto, and shall be issued in such form.
RESOLVED, that the officers of the Company be, and each of
them hereby is, authorized to establish additional terms of the SKIS in
accordance with the Subordinated Indenture and to execute and deliver
an Officer's Certificate to the Subordinated Indenture Trustee
containing such additional terms.
RESOLVED, that the preparation and filing of the
Post-Effective Amendment No. 1 to Registration Statement No. 33-66116,
including a Prospectus Supplement dated December ___, 1996, with the
Securities and Exchange Commission, under the Securities Act of 1933,
and the distribution thereof, in connection with the issue and sale of
$_____ million principal amount of ___% Subordinated Capital Income
Securities (Series A Subordinated Deferrable Interest Debentures), be
and hereby is approved, ratified and confirmed.
RESOLVED, that the officers of the Company are authorized and
directed to execute and deliver any and all documents and instruments
and to take any and all actions and to do any and all things they and
each of them may deem necessary or advisable in order to carry out the
intent and purposes of the foregoing resolutions.
-4-
<PAGE>
EXHIBIT 4.14
WSP&R
DRAFT
11/22/96
[FORM OF SUBORDINATED DEBT SECURITY]
No. 1
Cusip No. _______________
(See legend at the end of this Security for restrictions on
transferability and change of form)
UNION ELECTRIC COMPANY
__% SUBORDINATED CAPITAL INCOME SECURITIES
(SERIES A SUBORDINATED DEFERRABLE INTEREST DEBENTURES)
UNION ELECTRIC COMPANY, a corporation duly organized and
existing under the laws of the State of Missouri (herein referred to as the
"Company," which term includes any successor Person under the Indenture), for
value received, hereby promises to pay _______________, or registered assigns,
the principal sum of ___________________________ MILLION DOLLARS on December 15,
2045, to pay interest on said principal sum from _______ or from the most recent
Interest Payment Date through which interest has been paid or duly provided for,
semi-annually in arrears on June 15 and December 15 of each year, commencing
[June 15, 1997] at the rate of __% per annum to, but not including, the date on
which the principal hereof is paid or made available for payment. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the Business Day next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture referred to herein.
<PAGE>
Payment of the principal of and interest on this Security will
be made at the office or agency of the Company maintained for that purpose in
St. Louis, Missouri, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this
Security set forth herein, which further provisions for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
UNION ELECTRIC COMPANY
By: ___________________________________
ATTEST:
- -----------------------------
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
BOATMEN'S TRUST COMPANY, as Trustee
By: ____________________________________
Authorized Signatory
ILLINOIS COMMERCE COMMISSION
Identification No. 5968
-2-
<PAGE>
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities") issued and to be issued in one
or more series under an Indenture, dated as of December __, 1996, as amended
(herein called the "Indenture," which term shall have the meaning assigned to it
in such instrument), between the Company and Boatmen's Trust Company, as Trustee
(herein called the Trustee, which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture, including the Board
Resolutions filed with the Trustee on December __, 1996 creating the series
designated on the face hereof, for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount to $___,000,000.
The Securities of this series are not subject to redemption
prior to December __, 2006; thereafter, the Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, at any time on or after December __, 2006 as a whole or in part, at the
election of the Company, at the following Redemption Prices (in each case
expressed in percentages of principal amount):
If Redeemed During 12 Month Period Redemption
Beginning December , Price
2006........................... %
2007...........................
2008...........................
2009...........................
2010...........................
2011...........................
2012...........................
2013...........................
2014...........................
2015...........................
2016 and thereafter................... 100%
together in the case of any such redemption with accrued interest to, but not
including, the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holder of such
Security, or one or more Predecessor Securities, of record at the close of
business on the related Regular Record Date referred to on the face hereof, all
as provided in the Indenture.
In the event of redemption of this Security in part only, a
new Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
-3-
<PAGE>
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such Holder upon said provisions.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Security upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in aggregate
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Securities of this series at the time Outstanding
a direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or
interest hereon on or after the respective due dates expressed herein.
-4-
<PAGE>
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Company shall have the right at any time and from time to
time during the term of the Securities of this series to extend the interest
payment period to a period not exceeding 10 consecutive semi-annual periods (an
"Extended Interest Payment Period"), and at the end of such Extended Interest
Payment Period, the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the same rate as specified for the Securities
of this series to the extent permitted by applicable law) through the last day
of such Extended Interest Payment Period provided that if any principal amount
of this Security is paid on such day, then not including interest for such day
with respect to such principal amount; provided, however, that during such
Extended Interest Payment Period the Company shall not declare or pay any
dividend on, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock or make any guarantee payments with respect
to the foregoing. Prior to the termination of any such Extended Interest Payment
Period, the Company may further extend the interest payment period, provided
that such Extended Interest Payment Period, together with all such previous and
further extensions thereof, may not exceed 10 consecutive semi-annual periods or
extend beyond the Stated Maturity of the Securities of this series. Upon the
termination of any such Extended Interest Payment Period and the payment of all
amounts then due, the Company may select a new Extended Interest Payment Period,
subject to the above requirements. No interest during an Extended Interest
Payment Period, except at the end thereof, shall be due and payable. The Company
shall give the Holder of this Security notice of its selection of such Extended
Interest Payment Period as provided in the Indenture.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as the
absolute owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
-5-
<PAGE>
LEGEND
[Unless and until this Security is exchanged in whole or in
part for certificated Securities registered in the names of the various
beneficial holders hereof as then certified to the Trustee by The Depository
Trust Company or its successor (the "Depositary"), this Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for registration of
transfer, exchange or payment, and any certificates to be issued is registered
in the name of Cede & Co., or such other name as requested by an authorized
representative of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
This Security may be exchanged for certificated Securities
registered in the names of the various beneficial owners hereof if (a) the
Depositary is at any time unwilling or unable to continue as depositary and a
successor depositary is not appointed by the Company within 90 days, or (b) the
Company elects to issue certificated Securities to beneficial owners (as
certified to the Company by the Depositary).]
-6-
<PAGE>
EXHIBIT 5.1
November 22, 1996
Union Electric Company
1901 Chouteau Avenue
St. Louis, Missouri 63103
Dear Sirs:
I refer to the proposed issue and sale by Union Electric
Company (herein called the "Company") of $310,000,000 aggregate principal amount
of First Mortgage Bonds (herein called the "Bonds") and Debt Securities (herein
called the "Debt Securities" and, together with the Bonds, the "Securities") in
one or more series at prices and on terms to be determined at the time or times
of sale.
I understand that the Company proposes to issue and sell the
Securities in accordance with the terms and provisions set forth in
Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 (No.
33-66116), being filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933 (the "Registration Statement").
I advise you that, in my opinion:
1. The Company is a corporate duly organized and validly existing
under the laws of the State of Missouri and is legally qualified to conduct in
Illinois the business in which it is now engaged in that state.
2. Each series of Bonds are to be issued under the Indenture of
Mortgage and Deed of Trust of the Company dated June 15, 1937, as amended by
supplemental indentures dated May 1, 1941, April 1, 1971, February 1, 1974, and
July 7, 1980 (such indenture as so amended being herein called the "Mortgage"
and being an exhibit to the Registration Statement), and under a supplemental
indenture (herein called the "Supplemental Indenture"), a form of which has been
filed as an exhibit to the Registration Statement. The Mortgage has been duly
authorized, executed and delivered and is a valid instrument legally binding
upon the Company; and a Supplemental Indenture, when duly executed and
delivered, will be a valid instrument legally binding upon the Company.
3. Upon (a) the approval of the terms of issue and sale of Bonds by
the Public Service Commission of Missouri and the
<PAGE>
Illinois Commerce Commission and the recordation upon the books of the Company
of the certificate of approval of the Missouri Commission, (b) the Registration
Statement becoming effective under the Securities Act of 1933 and the Trust
Indenture Act of 1939, (c) the approval by the Board of Directors of the Company
of an increase in the bonded indebtedness of the Company, (d) the approval by
the Board of Directors of the Company of a Supplemental Indenture and of the
issue and sale of Bonds in accordance with a duly executed contract between the
Company and the underwriters, (e) the execution of a Supplemental Indenture by
the Company and by the Trustee under the Mortgage, acting by their proper
officers, respectively, the delivery thereof and the filing for record of a
Supplemental Indenture in the proper offices for recordation, (f) the execution
of Bonds by the proper officers of the Company and authentication thereof in
accordance with the provisions of the Mortgage, and (g) the delivery of Bonds
and full payment therefor in accordance with such authorizations of the Board of
Directors and of the above-mentioned Commissions, Bonds will be duly authorized
and issued, will constitute the legal, valid and biding obligations of the
Company and will be entitled to the lien of, and the benefits provided by, the
Mortgage and indentures supplemental thereto.
4. Each series of the Debt Securities are to be issued under an
Indenture of the Company, as supplemented by resolutions of the Executive
Committee of the Board of Directors of the Company (such indenture, as so
supplemented being herein called the "Indenture" and the forms of which
indenture and resolutions are being filed as exhibits to the Registration
Statement). The Indenture has been duly authorized and, when duly executed and
delivered, will be a valid instrument legally binding upon the Company.
5. Upon (a) the Registration Statement becoming effective under the
Securities Act of 1933 and the Trust Indenture Act of 1939, (b) the approval by
the Board of Directors of the Company, or a duly authorized committee thereof,
of the issue and sale of the Debt Securities in accordance with a duly executed
contract between the Company and the underwriters, (c) the execution of the
Indenture by the Company and the trustee under the Indenture, acting by their
proper officers, and the delivery thereof, (d) the execution of the Debt
Securities by the proper officers of the Company and authentication thereof in
accordance with the provisions of the Indenture and (e) the delivery of the Debt
Securities and full payment therefor in accordance with such authorizations of
the Board of Directors of the Company, or a duly authorized committee thereof,
the Debt Securities will be duly authorized and issued, will constitute the
legal, valid and binding obligations of the Company and will be entitled to the
benefits provided by the Indenture.
The opinions expressed herein are limited to matters governed
by the laws of the States of Missouri and Illinois and I express no opinion as
to the law of any other jurisdiction. In
-2-
<PAGE>
rendering the opinion set forth in paragraphs (4) and (5), I have relied, as to
matters governed by the laws of the State of New York, on the opinion of
Winthrop, Stimson, Putnam & Roberts of even date herewith. The opinions
expressed is paragraphs (2), (3), (4) and (5) are subject to bankruptcy,
insolvency , fraudulent conveyance, reorganization and other similar laws
relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law).
I hereby consent to the use of a copy of this opinion as an
exhibit to the Registration Statement and to the making of the statements with
respect to me under the headings "Description of New Bonds", "Experts" and
"Legal Opinions" in the Prospectus constituting a part of the Registration
Statement.
Yours truly,
/s/ William E. Jaudes
-3-
<PAGE>
EXHIBIT 5.2
November 22, 1996
Union Electric Company
1901 Chouteau Avenue
St. Louis, Missouri 63103
Ladies and Gentlemen:
In connection with the proposed issuance by Union Electric
Company (the "Company") of up to $310,000,000 aggregate principal amount of Debt
Securities (the "Debt Securities") pursuant to an indenture between the Company
and Boatmen's Trust Company, as Trustee for the Debt Securities (as supplemented
from time to time, the "Indenture"), we have reviewed Post-Effective Amendment
No. 1 to the Registration Statement on Form S-3 (No. 33-6116), including the
related prospectus, being filed under the Securities Act of 1933 (the
"Securities Act") with respect to the Debt Securities (the "Registration
Statement") for issuance from time to time under Rule 415 under the Securities
Act, the form of Indenture filed as an exhibit thereto and the opinion of
William E. Jaudes, Vice President and General Counsel of the Company, filed as
an exhibit thereto.
The opinions expressed herein are limited to matters governed
by the law of the State of New York and we express no opinion as to the law of
any other jurisdiction.
We concur with the opinions expressed in paragraphs (4) and
(5) of the above-referenced opinion of Mr. Jaudes (subject to the qualifications
stated therein) insofar as they involve the laws of the State of New York.
<PAGE>
Union Electric Company -2- November 22, 1996
Mr. Jaudes may rely on this opinion as to all matters of New
York law in rendering his above-referenced opinion. We hereby consent to the
filing of this opinion as an exhibit to the Registration Statement. In giving
such consent, we do not thereby admit that we are included in the category of
persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Winthrop, Stimson, Putnam & Roberts
<PAGE>
EXHIBIT 8
November 22, 1996
Union Electric Company
1901 Chouteau Avenue
St. Louis, Missouri 63103
Re: Subordinated Capital Income
Securities (Series A Subordinated
Deferrable Interest Debentures)
Ladies and Gentlemen:
As special tax counsel to Union Electric Company (the
"Company"), we have assisted in the preparation of the form of prospectus
supplement (the "Prospectus Supplement") that is an exhibit to post-effective
amendment No. 1 to the registration statement on Form S-3 (File No. 33-66116)
under the Securities Act of 1933 (the "Act"), as filed with the Securities and
Exchange Commission on the date hereof, covering the issuance of Subordinated
Capital Income Securities (Series A Subordinated Deferrable Interest Debentures)
(the "Capital Securities") by the Company (the "Registration Statement"). Unless
otherwise defined herein, all terms used herein shall have the meanings ascribed
to them in the Registration Statement.
We have examined and relied upon the Registration Statement
(including without limitation the Company's statements in the Prospectus
Supplement to the effect that the likelihood of extension of an interest payment
period on the Capital Securities is remote) and the form of Indenture between
the Company and Boatmen's Trust Company, as Trustee, as filed as an exhibit to
the Registration Statement.
Based on the foregoing and on our consideration of such other
information as we have deemed necessary and appropriate, we hereby confirm,
subject to the qualifications contained therein, our opinion as set forth in the
Prospectus Supplement under the caption "United States Taxation."
<PAGE>
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to our firm in the Prospectus
Supplement under the heading "United States Taxation." In giving such consent,
we do not thereby admit that we are included in the category of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
/s/ Winthrop, Stimson, Putnam & Roberts
<PAGE>
EXHIBIT 12
UNION ELECTRIC COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
12 Months
Year Ended December 31, Ended
September 30,
1991 1992 1993 1994 1995 1996
(Thousands of Dollars Except Ratios)
Net income
for
the Period $321,512 $302,748 $297,160 $320,757 $314,107 $316,294
Add:
Taxes Based
on income 218,954 197,009 182,716 203,827 207,734 210,972
Fixed Charges:
Interest
on Debt 163,061 125,798 124,430 135,608 129,239 128,828
Amortization
of Premium
and
Discount,
Less Expense
on Debt;
and Bond
Defeasance
Cost 4,148 9,521 5,170 5,504 5,502 4,731
Rentals
(See note) 1,171 908 1,314 1,299 3,330 3,303
Total
Fixed
Charges 168,380 136,227 130,914 142,411 138,071 136,862
Earnings
Available
for Fixed
Charges $708,846 $635,984 $610,790 $666,995 $659,912 $664,128
Ratio
of
Earnings
to Fixed
Charges 4.21 4.66 4.66 4.68 4.78 4.85
(*) Total annual interest charges on all bonds for the twelve months ended
September 30, 1996 was $112,951,000.
Note: Represents the interest factor applicable to rentals.
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Post-Effective Amendment No. 1 to
Registration Statement on Form S-3 (No. 33-66116) of our report dated
February 1, 1996, which appears on page 17 of Union Electric Company's
1995 Annual Report to Shareholders, which is incorporated by reference
in Union Electric Company's Annual Report on Form 10-K for the year
ended December 31, 1995. We also consent to the incorporation by
reference of our report on the Financial Statement Schedule, which
appears on page 12 of such Annual Report on Form 10-K. We also consent
to the reference to us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
St. Louis, Missouri
November 22, 1996
<PAGE>
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
FOR STATEMENTS OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
BOATMEN'S TRUST COMPANY
- --------------------------------------------------------------------------------
(Exact name of Trustee as specified in its charter)
Missouri 43-0497480
- ------------------------------ ---------------------
(State of incorporation if not (I.R.S. Employer
a national bank) Identification No.)
510 Locust Street
St. Louis, Missouri 63101
- -------------------------------- -----------------------
(Address of Trustee's principal (Zip Code)
executive offices)
UNION ELECTRIC COMPANY
- --------------------------------------------------------------------------------
(Exact name of Obligor as specified in its charter)
MISSOURI 43-0559760
- ------------------------------- ------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1901 Chouteau Avenue
St. Louis, Missouri 63103
- -------------------- ----------------
(Address of principal executive (Zip Code)
officers)
Debt Securities
- --------------------------------------------------------------------------------
(Title of the Indenture securities)
<PAGE>
1
GENERAL
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is
subject.
Missouri State Finance Department
Jefferson City, Missouri
Auditor of Public Accounts
Banking Department, Trust Division
State of Illinois
Springfield, Illinois
To determine compliance with the Bank Holding Company Act of 1956, as amended,
and regulations thereunder.
Board of Governors
Federal Reserve System
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
None
<PAGE>
2
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement of eligibility and
qualification.
*Exhibit 1. A copy of articles of association of the trustees as now
in effect.
*Exhibit 2. A copy of the certificate of authority of the trustees to
commence business.
*Exhibit 3. A copy of the authorization of the trustee to exercise
corporate trust powers.
**Exhibit 4. A copy of the existing by-laws of the trustee.
Exhibit 5. Inapplicable.
*Exhibit 6. The consents of the trustee required by Section 321 (b) of
the Act.
Exhibit 7. A copy of the latest report of condition of the trustee
published pursuant to the law or the requirements of its
supervising or examining authority.
*Exhibits 1, 2, 3, and 6 above are incorporated by reference to Exhibits
T-1A(a), T-1A(b), T-1A(c), and T-1D, respectively, heretofore filed with the
Securities and Exchange Commission under its File No. 2-4751, to which there
have been no subsequent amendments or other changes. The Commission has been
requested by letter dated May 10, 1966 to classify these exhibits as basic
documents under Rule 24(b) of the SEC Rules of Practice.
**Exhibit 4 above is incorporated by reference to Exhibit T-1B heretofore filed
with the Securities and Exchange Commission under its File No. 2-23262 to which
there have been no subsequent amendments or other changes.
<PAGE>
3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
BOATMEN'S TRUST COMPANY, a corporation organized and existing under the laws of
Missouri, has duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of St. Louis, and State of Missouri, on the 22nd day of November, 1996.
BOATMEN'S TRUST COMPANY
TRUSTEE
By: ________________________
P. C. Qui Belle
Assistant Treasurer
<PAGE>
STATE OF MISSOURI TR-100
Page 1
DIVISION OF FINANCE
P.O. Box 716
Jefferson City, Missouri 65102
TRUST COMPANY
CONSOLIDATED REPORT OF CONDITION AND INCOME
Report at the close of business date: September 30, 1996
Boatmen's Trust Company
Legal Title of Trust Company
St. Louis N/A , Missouri 18
city County Charter Number
OFFICERS' STATEMENT
We, the undersigned officers, do hereby declare that this Report of Condition
and Income (including the supporting schedules) are true to the best of our
knowledge and belief.
Signature of Officer Signature of Officer
Authorized to Sign Report Authorized to Sign Report
V. Raymond Stranghoener, Mary Jane Block,
Executive Vice President Executive Vice President
Typed or printed name and title Typed or printed name and title
10-17-96 314/466-3345 10-17-96
Date of Signature (Area Code) Date of Signature
Telephone Number
DIRECTORS' ATTEST
We, the undersigned directors, attest to the correctness of this Report of
Condition and Income (including supporting schedules) and declare it has been
examined by us and to the best of our knowledge and belief is true and correct.
Signature of Signature of Signature of
Director Director Director
NOTARIZED
State of Missouri City of St. Louis, ss:
(Notary Seal) Sworn to and subscribed before me this 17th day of
October, 1996.
Notary Public
My commission expires 4-3-98
<PAGE>
Boatmen's Trust Company TR-100
Legal Title of Trust Company Page 2
TRUST COMPANY
CONSOLIDATED REPORT OF CONDITION
Report at the close of business: September 30, 1996
Include the institution's subsidiaries. All schedules are to be reported in
thousands of dollars. Report the amount outstanding on the last day of the
quarter.
SECTION A. BALANCE SHEET thousands of dollars
ASSETS
1. Cash and balances due from depository institutions 2,668
2. Securities
a. Held-to-maturity securities
(must equal Part 1, item 6) 17,364
b. Available-for-sale securities
(must equal Part 1, item 6) 64,851
3. Assets held in trading accounts none
4. Premises and fixed assets 45,899
(including capitalized leases)
5. Other Assets (describe amounts that
exceed 25% of this item) 245,112
a. Fed Funds Sold 154,725
b. Accrued Trust Fees 25,907
c.
6. Total Assets (sum of Items 1 through 5) 375,894
LIABILITIES
7. Accounts Payable 16
8. Taxes Payable 2,775
9. Other liabilities for borrowed money 25,438
10. Other liabilities (describe amounts that
exceed 25% of this item) 174,737
a. Customer Deposits 162,455
b.
c.
11. Total Liabilities (sum of items 7 through 10) 202,966
EQUITY CAPITAL
12. Preferred Stock none
13. Common Stock 7,060
14. Surplus 41,440
15. a. Undivided Profits 120,405
b. Net unrealized holding gains (losses) on
available-for-sale securities 4,023
16. Total Equity Capital (sum of items 12 through 15b) 172,928
17. Total Liabilities and Equity Capital
(sum of items 11 and 16) 375,894
<PAGE>
TR-100
Page 3
TRUST COMPANY
CONSOLIDATED REPORT OF CONDITION
thousands of dollars
PART 1-SECURITIES Held-to-
(Exclude assets held in maturity Available-for-sale
trading accounts)
1. U.S. Treasury Securities none 3,065
2. U.S. Government Agency and
Corporate Obligations none none
3. Securities issued by states
and political subdivisions
in the U.S. none 1,728
4. Other bonds, notes and
debentures 17,010 none
5. Corporate Stock Inc. mutual
fund var NAV of 16,091 354 60,058
6. Total (sum of items 1
through 5) (Totals must equal
Section A, items 2a and 2b) 17,364 64,851
MEMORANDUM (included in above items)
7. Mortgage derivative products
and collateralized mortgage
obligations none none
8. Market value of held-to-
maturity securities
(item 6 above) 17,397
thousands of dollars
Total
Preferred Common Equity
Stock Stock Capital
(Par (Par Undivided (Line
(Value) Value) Surplus Profits Total)
PART 2-CHANGES IN
EQUITY CAPITAL
Utilize calendar
year-to-date figures.
Indicate decreases and
losses in parentheses.
1. Balance end of
previous year none 7,060 6,440 111,897 125,397
2. Net income (loss)
(Must equal Section B,
item 11) 25,978 25,978
3. Changes in net
unrealized holding
gains losses) on
available-for-sale
securities 2,474 2,474
4. Sale, conversion,
<PAGE>
acquisition, or
retirement of capital
5. Changes incident to
business combinations
6. LESS: Cash dividends
declared on preferred stock (15,921) (15,921)
7. LESS: Cash dividends
declared on common stock
8. Other increases
(decreases) - itemize
Capital infusion from
parent company 35,000 35,000
9. Balance end of
current period (Total
equity capital must
equal Section A,
item 16) none 7,060 41,440 124,428 172,928
PART 3-OFF-BALANCE SHEET ACTIVITIES thousands of dollars
1. Securities borrowed or lent; Commitments
to purchase or sell when-issued securities;
interest rate contracts including (a)
National value of interest rate swaps,
(b) Futures sod forward contracts, (c)
Option contracts; Other off-balance
sheet liabilities none
<PAGE>
EXHIBIT 99
DRAFT 11/22/96
This preliminary Prospectus Supplement and the Information contained herein are
subject to completion or amendment and prospective purchasers are referred to
the related final Prospectus Supplement for definitive information on any matter
contained herein. This preliminary Prospectus Supplement shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be any sale
of these securities in any jurisdiction in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under the
securities laws of any such jurisdiction.
PRELIMINARY, SUBJECT TO COMPLETION, DATED [__________] , 1996
PROSPECTUS SUPPLEMENT
(To Prospectus dated [________], 1996)
$[----------]
Union Electric Company
Series A SKIS(sm)
[_____]% Subordinated Capital Income Securities
(Series A Subordinated Deferrable Interest Debentures)
---------------
The [_____]% Subordinated Capital Income Securities (Series A Subordinated
Deferrable Interest Debentures) (the "Debentures") are unsecured debt securities
of Union Electric Company (the "Company") which will mature on December 15,
2045. Interest on the Debentures is payable semiannually on June 15 and December
15 in each year, commencing June 15, 1997, except under circumstances
described herein during and under which payment of interest on the Debentures
may be deferred. The Debentures will not be redeemable prior to December __,
2006; thereafter, the Debentures will be redeemable at the option of the
Company, in whole or in part, on or after December __, 2006 at the redemption
prices set forth herein together with accrued interest to the redemption date.
The Debentures will be represented by a Global Security that will be deposited
with, or on behalf of, The Depository Trust Company ("DTC") and will be
available for purchase in denominations of $1,000 and any integral multiple
thereof. Each $1,000 principal amount of Debentures is referred to herein as a
"Debenture." See "Certain Terms of the Debentures."
The obligations of the Company under the Debentures are subordinate and
junior in right of payment to Senior Indebtedness (as defined in the
accompanying Prospectus) of the Company. As of September 30, 1996, outstanding
Senior Indebtedness of the Company aggregated approximately $1.8 billion.
--------------------
See "Risk Factors" on page S-4 for certain information relevant to an
investment in the Debentures, including the period and circumstances during and
under which payment of interest on the Debentures may be deferred and the
related United States federal income tax consequences.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO
WHICH IT RELATES. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
================================================================================
Price to Underwriting Proceeds to
Public(1) Discount(2) Company(3)
- --------------------------------------------------------------------------------
Per Debenture........ 100% _____% _____%
- --------------------------------------------------------------------------------
Total................ $[___________] $[_________] $[___________]
================================================================================
(1) Plus accrued interest, if any, from the date of original issuance.
(2) The Company has agreed to indemnify the Underwriter against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended.
(3) Before deducting estimated expenses of $60,000 payable by the Company.
--------------------
The Debentures are offered by the Underwriter, as specified herein, subject to
receipt and acceptance by it and subject to its right to reject any order in
whole or in part. It is expected that the Debentures will be ready for delivery
in book-entry only form through the facilities of DTC in New York, New York, on
or about December __, 1996, against payment therefor in immediately available
funds.
--------------------
LEHMAN BROTHERS
December __, 1996
- -----------------
SM Lehman Brothers Inc. has applied to register SKIS as a service mark.
<PAGE>
SELECTED INFORMATION
The following material, which is presented herein solely to furnish limited
introductory information regarding the Company and the offering, has been
selected from or is based upon, is qualified in its entirety by, and should be
read together with, the detailed information and financial statements included
and incorporated by reference into this Prospectus Supplement and in the
accompanying Prospectus.
The Offering
Securities Offered...................... $[__________] aggregate principal
amount of Debentures due December
15, 2045.
Interest Payment Dates.................. June 15 and December 15 in each year,
commencing June 15, 1997, except
under circumstances described herein
during and under which payment of
interest on the Debentures may be
deferred.
Redemption.............................. The Debentures will not be redeemable
prior to December __, 2006;
thereafter, the Debentures are
redeemable at the option of the
Company, in whole or in part, at any
time on or after December __, 2006
and prior to maturity upon not less
than 30 nor more than 60 days'
notice at the redemption prices set
forth herein together with accrued
interest to the redemption date.
Subordination........................... The obligations of the Company under
the Debentures are subordinate and
junior in right of payment to Senior
Indebtedness (as defined in the
accompanying Prospectus) of the
Company. As of September 30, 1996,
outstanding Senior Indebtedness of
the Company aggregated approximately
$1.8 billion.
Union Electric Company
Business ............................... Principally, the generation,
transmission, distribution and sale
of electricity.
Service Area ........................... Electric service to an approximately
24,500 square mile area primarily
covering the eastern and central
portions of Missouri, and portions
of Illinois adjacent to St. Louis,
Missouri; and gas service to 90
Missouri communities and Alton,
Illinois, and vicinity.
Service Area Population (estimated)..... Electric--2,600,000; Gas--360,000
Customers............................... Electric--1,133,000; Gas--120,000
Revenue Distribution (12 months ended
September 30, 1996).................... Electric--95.7%; Gas--4.3%
Sources of Kwh Generation (12 months
ended September 30, 1996) ............. Coal--68.1%; Nuclear--28.5%;
Hydro--3.4%
Property and Plant, net (as of
September 30, 1996).................... $5.3 billion
S-2
<PAGE>
Pending Merger.......................... As described in the accompanying
Prospectus, the Company has entered
into an Agreement and Plan of Merger
pursuant to which the Company and
CIPSCO Incorporated ("CIPSCO") will
combine to form a new registered
public utility holding company
subject to satisfaction of certain
conditions. Consummation of the
merger will not affect the Company's
obligations with respect to the
Debentures or its other
indebtedness. See "Recent Merger
Developments."
<TABLE>
<CAPTION>
Selected Financial Information
(Dollars in Thousands)
12 Months Ended
--------------- ----------------------------------------------------------------------------------
September December December December December December
30, 31, 31, 31, 31, 31,
1996 1995 1994 1993 1992 1991
--------------- -------------- -------------- -------------- -------------- --------------
Income Statement Data:
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues $ 2,247,625 $ 2,102,707 $ 2,056,116 $ 2,066,004 $ 2,015,121 $ 2,096,940
Operating Income....... $ 433,281 $ 441,896 $ 450,186 $ 411,297 $ 412,017 $ 482,813
Net Income............. $ 316,294 $ 314,107 $ 320,757 $ 297,160 $ 302,748 $ 321,512
Ratios of Earnings to
Fixed Charges.......... 4.85 4.78 4.68 4.66 4.66 4.21
</TABLE>
<TABLE>
<CAPTION>
As of September 30, 1996
-------------------------------------------------------------------
Actual Ratio As Ratio
------------ ----------- -------- -----------
Adjusted
----------
Balance Sheet Data:
<S> <C> <C> <C> <C>
Long-term Debt (excluding current maturities)............... $1,727,945 39.7% $ %
Preferred Stock Subject to Mandatory Redemption............. 624
Preferred Stock Not Subject to Mandatory
Redemption.................................................. 218,497 5.0
Common Stock Equity......................................... 2,406,831 55.3
----------- ----------- ---------- ------
Total Capitalization................................... $4,353,897 100.0% $ 100.0%
=========== ===== =========== =====
Short-term Debt and Current Maturities of
Long-term Debt............................................ $ 76,490 $
=========== ===========
</TABLE>
S-3
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVERALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE DEBENTURES AT A
LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
--------------------
RISK FACTORS
Prospective purchasers of Debentures should carefully review the
information contained elsewhere in this Prospectus Supplement and in the
accompanying Prospectus and should particularly consider the following matters:
Subordination of Debentures. The Debentures are unsecured obligations of
the Company and are subordinate and junior in right of payment to Senior
Indebtedness of the Company. As of September 30, 1996, outstanding Senior
Indebtedness of the Company aggregated approximately $1.8 billion. There are no
terms in the Debentures that limit the Company's ability to incur additional
indebtedness, including indebtedness that ranks senior to the Debentures. A
default with respect to, or the acceleration of, any other indebtedness of the
Company will not constitute an Event of Default with respect to the Debentures.
See "Description of New Debt Securities -Subordination" in the accompanying
Prospectus.
Option to Extend Interest Payment Period. The Company has the right
under the Indenture at any time and from time to time during the term of the
Debentures, so long as an Event of Default has not occurred and is not
continuing, to extend the interest payment period to a period not exceeding 10
consecutive semi-annual periods (an "Extension Period"). Semi-annual interest
payments on the Debentures would be deferred (but would continue to accrue with
interest thereon at the same rate as specified for the Debentures to the extent
permitted by applicable law) during any such Extension Period. Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that such Extension Period, together with all
such previous and further extensions thereof, may not exceed 10 consecutive
semi-annual periods or extend beyond the maturity of the Debentures. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Company may select a new Extension Period, subject to the above requirements.
See "Certain Terms of the Debentures -- Option to Extend Interest Payment
Period."
If the Company exercises its right to extend the interest payment
period, the Company may not, during any such Extension Period, declare or pay
any dividend on, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock or make any guarantee payments with respect
to the foregoing. Therefore, the Company believes that the likelihood of
extension of an interest payment period on the Debentures is remote.
Accruals of Interest for United States Federal Income Tax Purposes.
Should the Company so defer payment of interest, holders of the Debentures (even
if they used the cash method of accounting for United States federal income tax
purposes) would be required to accrue income (in the form of original issue
discount) for United States federal income tax purposes even though interest was
not being paid on a current basis. As a result, such holders would be required
to include such interest in gross income for United States federal income tax
purposes in advance of the receipt of cash, and would not receive the cash from
the Company related to such income if such holders disposed of their Debentures
prior to the record date for payment of interest. See "United States Taxation --
Stated Interest and Original Issue Discount."
USE OF PROCEEDS
The net proceeds from the sale of the Debentures will be used to redeem
the outstanding __________ shares of the Company's Preferred Stock, $_____
Series of _____, stated value $_____ per share, which are redeemable at a
redemption price of $_____ per share through [date]. Such redemption is subject
to the Company's closing the sale of the Debentures. Pending application to such
redemption, the net proceeds will be utilized temporarily to reduce short-term
bank debt and to repay outstanding commercial paper or for other general
corporate purposes.
S-4
<PAGE>
RECENT MERGER DEVELOPMENTS
On August 11, 1995, the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") with CIPSCO and Ameren Corporation ("Ameren"), a
newly formed entity, 50% owned by the Company and 50% owned by CIPSCO, pursuant
to which, among other things, the Company and CIPSCO will be merged with Ameren
(the "Merger").
On July 12, 1996, a joint agreement was filed with the Missouri Public
Service Commission (the "MPSC") that recommends approval of the Merger. The
Company, the MPSC staff, the Office of the Public Counsel, several customer
groups and others signed the agreement. Agreement provisions include a new
three-year alternative regulation plan that would run from July 1, 1998 to June
30, 2001. Like the current alternative regulation plan with the MPSC, the new
plan provides that earnings over a 12.61 percent regulatory return on equity
("ROE") up to a 14 percent ROE would be shared equally between customers and
shareholders. The new three-year plan would also return to customers 90 percent
of all earnings above an ROE of 14 percent up to 16 percent. Earnings above a 16
percent ROE would be credited entirely to customers. Other agreement provisions
include: recovery over a 10-year period of the Missouri portion of an estimated
$71.5 million of Merger-related transaction and transition costs; a Missouri
electric rate decrease, effective September 1, 1998, based on the
weather-adjusted average annual credits to customers under the current
alternative regulation plan with the MPSC; and an experimental retail wheeling
pilot program for 100 megawatts of electric power to be filed by the Company no
later than March 1, 1997. Also, as part of the agreement, the Company will not
seek to recover in Missouri the merger premium. The exclusion of the merger
premium from rates would not result in a charge to earnings. On September 25,
1996, the MPSC ordered that additional information be filed in November 1996 in
connection with the Merger proceedings. The MPSC is expected to issue a decision
on the Merger in early 1997.
On October 16, 1996, the Federal Energy Regulatory Commission (the
"FERC") set the proposed Merger for hearing. The FERC directed the presiding
administrative law judge in the case to issue an initial decision no later than
April 30, 1997. The FERC is expected to issue a final decision on the Merger by
the end of 1997.
On November 7, 1996, the Hearing Examiner for the Illinois Commerce
Commission (the "ICC") issued a proposed order in connection with the Company's
and CIPSCO's Merger proceedings. In the proposed order, the Hearing Examiner
recommended that the Merger be approved. In addition, the Hearing Examiner
recommended that a decision on the Company's and CIPSCO's proposals for sharing
Merger savings be made after the Merger. The Company and CIPSCO will be required
to file a rate case or alternative regulation plan within one year after closing
of the Merger whereby an appropriate sharing of net Merger savings between
stockholders and customers will be determined at that time. The Hearing Examiner
also recommended that the Company's proposed transfer of it's existing Illinois
electric and gas facilities to CIPSCO be denied, but recommended that the joint
dispatch agreement be approved. A final order from the ICC is expected by the
end of 1996.
The following selected unaudited pro forma financial information
reflects the effects of combining the Company and CIPSCO into Ameren under the
pooling of interests method of accounting.
<TABLE>
<CAPTION>
(In Thousands Except Per Share Amounts) (Unaudited)
12 Months Ended 1995 1994 1993
September 30, 1996
<S> <C> <C> <C> <C>
Total revenues $3,291,799 $3,127,316 $3,146,101 $3,138,944
Net income $ 376,393 $ 372,872 $ 391,459 $ 368,571
Earnings per share $2.74 $2.72 $2.85 $2.69
</TABLE>
The pro forma financial information consolidates the financial results
of Electric Energy Inc. ("EEI"), which effectively will be 60% owned by Ameren
subsequent to the Merger as a result of the current ownership interests in EEI
by the Company and CIPSCO. Additional pro forma information is included in the
documents incorporated by reference herein. See "Incorporation of Certain
Information by Reference" in the accompanying Prospectus.
S-5
<PAGE>
CERTAIN TERMS OF THE DEBENTURES
The following description of specific terms of the Debentures should be
read in conjunction with the description of the general terms and provisions of
the New Debt Securities set forth in the accompanying Prospectus under the
caption "Description of New Debt Securities." The following summary does not
purport to be complete and is subject in all respects to the provisions of, and
is qualified in its entirety by reference to, the description in the
accompanying Prospectus and the Indenture, dated as of December __, 1996, from
the Company to Boatmen's Trust Company, as Trustee (the "Trustee"), as
supplemented by resolutions of the Board of Directors of the Company (the
"Board") passed on June 9, 1995 and resolutions of the Executive Committee of
the Board passed on December __, 1996. The Indenture, as so supplemented, is
hereinafter referred to in this Prospectus Supplement as the "Indenture."
Principal Amount, Interest and Maturity
The Debentures will be issued as a series of Debt Securities under the
Indenture. The Debentures will be limited in aggregate principal amount to
$[___] million.
The Debentures are to mature on December 15, 2045 and will bear interest
at the rate per annum shown in the title thereof payable semi-annually in
arrears on June 15 and December 15 in each year, commencing June 15, 1997 to
the persons in whose names the Debentures are registered at the close of
business on the relevant record dates, which will be the Business Day (as
hereinafter defined) immediately preceding the relevant payment dates. For so
long as the Debentures are registered in the name of DTC or its nominee, the
principal and interest due on the Debentures will be payable by the Company or
its agent to DTC for payment to its Participants (as defined herein) for
subsequent disbursement to Beneficial Owners (as defined herein). The amount of
interest payable for any period will be computed on the basis of a 360-day year
of twelve 30-day months. Interest will accrue from the date of original issuance
or from the most recent interest payment date through which interest has been
paid, as the case may be. In the event that any date on which interest is
payable on the Debentures is not a Business Day, then payment of the interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. A "Business Day" shall
mean any day other than a day on which banking institutions in New York City are
authorized or obligated by law to close.
Global Securities
This discussion of DTC and its book-entry system supplements the
discussion of depositary arrangements in "Global Securities" in the accompanying
Prospectus.
DTC will act as securities depositary for the Debentures. The Debentures
will be issued in fully-registered form in the name of Cede & Co. (DTC's
partnership nominee). One or more fully-registered Debenture certificates will
be issued as Global Securities for the Debentures, in the aggregate principal
amount of the Debentures, and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct Participants
of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in Direct
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants" and together
with Direct Participants, "Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
Purchases of Debentures under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Debentures on DTC's
records. The ownership interest of each actual purchaser of Debentures
("Beneficial Owner") is in turn to be recorded on the Participants' records.
Beneficial Owners will not receive written confirmation from DTC of their
purchase, but Beneficial Owners are expected to receive written confirmations
providing details of the transaction, as well as periodic statements of their
holdings, from the Participant through which the Beneficial Owner entered into
the transaction. Transfers of ownership interests in
S-6
<PAGE>
the Debentures are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not
receive certificates representing their ownership interests in Debentures,
except in the event that use of the book-entry system for the Debentures is
discontinued.
To facilitate subsequent transfers, all Debentures deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Debentures with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Debentures; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Debentures are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Participants to Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in effect from
time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to
Debentures. Under its usual procedures, DTC would mail an Omnibus Proxy to the
Company as soon as possible after the record date. The Omnibus Proxy assigns
Cede & Co.'s consenting or voting rights to those Direct Participants to whose
accounts the Debentures are credited on the record date (identified in a listing
attached to the Omnibus Proxy).
Principal and interest payments on the Debentures will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the payable date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payment on the payable date. Payments
by Participants to Beneficial Owners will be governed by standing instructions
and customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC or the Company, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payment of principal and interest to DTC is the responsibility of the Company,
disbursement of such payments to Direct Participants shall be the responsibility
of DTC, and disbursements of such payments to the Beneficial Owners shall be the
responsibility of Participants.
DTC may discontinue providing its services as securities depositary with
respect to the Debentures at any time by giving reasonable notice to the
Company. Under such circumstances, in the event that a successor securities
depositary is not obtained, Debenture certificates are required to be printed
and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depositary). In that event,
Debenture certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry
system is based upon information obtained from DTC, and neither the Company, the
Underwriter nor the Trustee takes any responsibility for the accuracy thereof.
Neither the Company, the Trustee nor the Underwriter will have any
responsibility or obligation to Participants, or the persons for whom they act
as nominees, with respect to the accuracy of the records of DTC, its nominee or
any Participant with respect to any ownership interest in the Debentures, or
payments to, or the providing of notice for, Participants or Beneficial Owners.
Redemption
The Debentures will not be redeemable prior to December __, 2006.
Thereafter, the Debentures will be redeemable at the option of the Company, in
whole or in part, at any time on or after December __, 2006 at the following
redemption prices (in each case expressed in percentages of principal amount):
If Redeemed During 12 Month Period Redemption
Beginning December __, Price
---------------------- -----
2006........................ %
2007........................
2008........................
2009........................
S-7
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2010........................
2011........................
2012........................
2013........................
2014........................
2015........................
2016 and thereafter......... 100%
in each case, upon not less than 30 nor more than 60 days' notice and together
with accrued interest to the redemption date.
Option to Extend Interest Payment Period
The Company shall have the right at any time and from time to time
during the term of the Debentures to extend the interest payment period to a
period not exceeding 10 consecutive semi-annual periods, and at the end of such
Extension Period, the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the same rate as specified for the Debentures
to the extent permitted by applicable law); provided, however, that during any
such Extension Period the Company shall not declare or pay any dividend on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock or make any guarantee payments with respect to the foregoing.
Prior to the termination of any such Extension Period, the Company may further
extend the interest payment period, provided that such Extension Period,
together with all such previous and further extensions thereof, may not exceed
10 consecutive semi-annual periods or extend beyond the maturity of the
Debentures. Upon the termination of any Extension Period and the payment of all
amounts then due, the Company may select a new Extension Period, subject to the
above requirements. No interest during an Extension Period, except at the end
thereof, shall be due and payable. The Company shall give the holders of the
Debentures notice of its selection of such Extension Period ten Business Days
prior to the earlier of (i) the next interest payment date and (ii) the date the
Company is required to give notice to holders of the Debentures (or, if
applicable, to the New York Stock Exchange or other applicable self-regulatory
organization) of the record or payment date of such interest payment, but in any
event not less than two Business Days prior to such record date.
Subordination
The obligations of the Company under the Debentures are subordinate and
junior in right of payment to Senior Indebtedness of the Company in accordance
with the provisions described in the accompanying Prospectus under the caption
"Description of New Debt Securities -- Subordination." As of September 30, 1996,
outstanding Senior Indebtedness of the Company aggregated approximately $1.8
billion.
Paying Agent and Registrar
Initially, the Company will act as Paying Agent and Registrar for the
Debentures.
UNITED STATES TAXATION
The following summary describes the principal United States
federal income tax consequences of the purchase, ownership and disposition of
Debentures. This summary only addresses Debentures held as capital assets by
United States Holders (defined below) that acquire Debentures on their original
issue at their original offering price, and does not deal with special
situations, such as those of dealers in securities or currencies, financial
institutions, insurance companies, tax-exempt organizations, persons holding
Debentures as part of a hedging or conversion transaction or a straddle or
United States Holders whose "functional currency" is not the U.S. dollar. As
used herein, a "United States Holder" means a beneficial owner of Debentures
that is a citizen or resident of the United States, a corporation or partnership
organized in or under the laws of the United States, any state thereof or the
District of Columbia, or an estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
S-8
<PAGE>
The statements of law or legal conclusion set forth in this
summary constitute the opinion of Winthrop, Stimson, Putnam & Roberts, special
tax counsel to the Company. This summary is based upon the Internal Revenue Code
of 1986, as amended (the "Code"), and regulations, rulings, pronouncements and
judicial decisions thereunder as of the date hereof, all of which are subject to
change. Any such change, which may be retroactive, may cause the United States
federal income tax consequences to vary substantially from the consequences
described below. An opinion of counsel is not binding on the Internal Revenue
Service ("IRS") or the courts, and the authorities on which this summary is
based are subject to various interpretations. It is, therefore, possible that
the United States federal income tax treatment of the purchase, ownership and
disposition of Debentures may differ from the treatment described below.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX
ADVISORS IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE UNITED STATES
FEDERAL INCOME TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF
DEBENTURES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
Stated Interest and Original Issue Discount
Under new Treasury Regulations applicable to debt instruments
issued on or after August 13, 1996, generally, stated interest on a debt
instrument will give rise to original issue discount ("OID") unless the
likelihood of late payment or nonpayment is a "remote contingency." Under the
Indenture, the Company has the right to defer the payment of interest on the
Debentures at any time or from time to time for a period not exceeding 10
consecutive semi-annual periods with respect to each Extension Period, provided
that no Extension Period may extend beyond the maturity of the Debentures. The
Company believes that the likelihood of it exercising its option to defer
payments of interest is remote because exercising the option would, among other
things, prevent the Company from declaring dividends on its capital stock.
Accordingly, the Company believes that the Debentures should be considered as
issued without OID and, therefore, except as set forth below, stated interest on
Debentures will generally be taxable to a United States Holder as ordinary
income at the time it is paid or accrued in accordance with the United States
Holder's method of accounting for United States federal income tax purposes.
Notwithstanding the foregoing, should the Company exercise its
right to defer payments of interest, the Debentures would at that time be
treated as having been reissued with OID. Consequently, United States Holders
(even if they used the cash method of accounting for United States federal
income tax purposes) would be required to include OID in income on an economic
accrual basis for as long as the Debentures remained outstanding, including any
Extension Periods. The amount of OID that would accrue in any semi-annual period
would approximately equal the amount of interest that accrues in that
semi-annual period at the stated interest rate. A United States Holder that
disposed of Debentures before the record date for the payment of interest
following an Extension Period would include interest in gross income as it
accrued on the Debentures but would not receive any interest payments related
thereto from the Company.
Sale or Redemption of Debentures
Gain or loss will be recognized by a United States Holder on a
sale of Debentures (including a redemption) in an amount equal to the difference
between the amount realized (which, for this purpose, will exclude amounts
attributable to accrued interest not previously included in income as interest
or OID) and the United States Holder's adjusted tax basis in the Debentures sold
or redeemed. The tax basis of a United States Holder in its Debentures would be
increased by any OID included in income and decreased by any subsequent payments
of interest. A United States Holder that disposed of Debentures during an
Extension Period may recognize a capital loss because the market value of the
Debentures may not fully reflect interest accrued as OID during such Extension
Period. Gain or loss recognized by a United States Holder on Debentures held for
more than one year will generally be taxable as long-term capital gain or loss.
Information Reporting and Backup Withholding
The amount of interest paid or OID accrued, if any, on Debentures
held of record by United States Holders (other than corporations and other
exempt holders) will be reported annually to the IRS. It is anticipated that
such interest or OID will be reported to holders on Form 1099 and delivered by
January 31 following each calendar year.
"Backup withholding" at a rate of 31% will apply to payments of
interest to non-exempt United States Holders unless the holder furnishes its
taxpayer identification number in the manner prescribed in applicable Treasury
Regulations, certifies that such number is correct, certifies as to no loss of
exemption from backup withholding and meets certain other conditions.
S-9
<PAGE>
Payment of the proceeds from the disposition of Debentures to or
through the United States office of a broker is subject to information reporting
and backup withholding unless the holder or beneficial owner establishes an
exemption from information reporting and backup withholding.
Any amounts withheld under the backup withholding rules will be
allowed as a refund or a credit against the holder's United States federal
income tax liability, provided the required information is furnished to the IRS.
UNDERWRITING
The Underwriter has agreed to purchase and the Company has agreed to
sell to the Underwriter the Debentures. The Underwriting Agreement provides that
the obligation of the Underwriter is subject to certain conditions precedent,
and that the Underwriter will be obligated to purchase all of the Debentures if
any are purchased.
The Company has been advised by the Underwriter that it proposes to
offer the Debentures to the public initially at the price to public set forth on
the cover page of this Prospectus Supplement and to certain dealers at such
price less a concession not in excess of [____]% of the principal amount of the
Debentures; that the Underwriter and such dealers may reallow a discount not in
excess of [____]% of the principal amount of the Debentures on sales to certain
other dealers; and that after the initial public offering, the price to public
and concession and discount to dealers may be changed by the Underwriter.
The Debentures are a new issue of securities with no established trading
market. The Company does not intend to apply for listing of the Debentures on a
national securities exchange, but has been advised by the Underwriter that it
presently intends to make a market in the Debentures, as permitted by applicable
laws and regulations. The Underwriter is not obligated, however, to make a
market in the Debentures and any such market making may be discontinued at any
time at the sole discretion of the Underwriter. Accordingly, no assurance can be
given as to the liquidity of, or the trading market for, the Debentures.
The Company has agreed to indemnify the Underwriter against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
LEGAL MATTERS
Statements as to United States taxation in this Prospectus Supplement
under the caption "United States Taxation" have been passed upon for the Company
by Winthrop, Stimson, Putnam & Roberts, acting as special tax counsel to the
Company, and are stated herein on their authority as experts. Such firm is also
acting as counsel to the Underwriter in connection with the offering of
Debentures.
S-10
<PAGE>
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No dealer, salesperson or other individual has been authorized to give
any information or to make any representations other than those contained in the
Prospectus or this Prospectus Supplement in connection with the offer made by
the Prospectus and this Prospectus Supplement and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or the Underwriter. The Prospectus and this Prospectus Supplement
do not constitute an offer or solicitation by anyone in any jurisdiction in
which such offer or solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to anyone to whom it is
unlawful to make such offer or solicitation. Neither the delivery of the
Prospectus or this Prospectus Supplement nor any sale made hereunder shall under
any circumstances create an implication that there has been no change in the
affairs of the Company since the date hereof.
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TABLE OF CONTENTS
Page
----
Prospectus Supplement
Selected Information................................................... S-2
Risk Factors........................................................... S-4
Use of Proceeds........................................................ S-4
Recent Merger Developments............................................. S-5
Certain Terms of the Debentures........................................ S-6
United States Taxation................................................. S-9
Underwriting........................................................... S-11
Legal Matters..........................................................
Prospectus
Available Information.................................................. 2
Incorporation of Certain Documents by Reference........................ 2
The Company............................................................ 3
Use of Proceeds........................................................ 3
Ratio of Earnings to Fixed Charges..................................... 3
Description of New Bonds............................................... 3
Description of New Debt Securities..................................... 7
Global Securities...................................................... 14
Experts................................................................ 14
Legal Opinions......................................................... 15
Plan of Distribution................................................... 15
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<PAGE>
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$[_______________]
UNION ELECTRIC COMPANY
Series A SKISsm
[_____]% Subordinated
Capital Income Securities
(Series A Subordinated Deferrable
Interest Debentures)
---------------
PROSPECTUS SUPPLEMENT
December __, 1996
---------------
LEHMAN BROTHERS
================================================================================
<PAGE>
