<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 4, 1998.
REGISTRATION NO. 333-18473
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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
---------------------
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
ILLINOIS 37-0211380
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NO.)
607 EAST ADAMS STREET
SPRINGFIELD, ILLINOIS 62739
(217) 523-3600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DONALD E. BRANDT
SENIOR VICE PRESIDENT
C/O AMEREN SERVICES 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. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO OFFERING PRICE PER AGGREGATE REGISTRATION
OF SECURITIES TO BE REGISTERED BE REGISTERED UNIT(1) OFFERING PRICE(1) FEE
<S> <C> <C> <C> <C>
Senior Notes.............................. $170,000,000 100% $170,000,000 $51,516 (2)
</TABLE>
(1) Estimated solely for purpose of calculating the registration fee.
(2) This filing fee was paid at the time of the initial filing of this
registration statement and no further fee is required.
Prior to the filing of this post-effective amendment to the registration
statement, $75,000,000 aggregate principal amount of securities remained
registered and unsold under this registration statement.
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<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
COMPANY MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
SUBJECT TO COMPLETION, DATED DECEMBER 4, 1998
PROSPECTUS
$75,000,000
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
SENIOR NOTES
------------------------
Central Illinois Public Service Company, known as AmerenCIPS since December 31,
1997 (the "Company"), intends to offer at one or more times senior notes (the
"Senior Notes") with an aggregate principal amount not to exceed $75,000,000.
The Company will provide the specific terms of the Notes in supplements to this
prospectus. Investors should read this prospectus and the supplements carefully
before investing. The principal executive offices of the Company are located at
607 East Adams Street, Springfield, Illinois 62739 and its telephone number is
217-523-3600.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
December , 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
The Company............................................................................ 3
Where You Can Find More Information.................................................... 3
Ratios of Earnings to Fixed Charges.................................................... 4
Use of Proceeds........................................................................ 4
Description of Senior Notes............................................................ 5
Description of Senior Note Mortgage Bonds.............................................. 14
Book-Entry System...................................................................... 19
Plan of Distribution................................................................... 21
Legal Opinions......................................................................... 22
Experts................................................................................ 22
</TABLE>
2
<PAGE>
THE COMPANY
The Company was organized in 1902 under the laws of the State of Illinois.
The Company is a public utility operating company engaged in the sale of
electricity and natural gas in portions of central and southern Illinois. The
Company generates, transmits and distributes electricity and, through
interchange agreements with other utility systems, purchases and sells power on
a firm basis, in emergency situations or when economical to do so. The Company
sells natural gas, which it purchases from suppliers and distributes in various
parts of the territory served, and transports natural gas purchased by end-users
directly from suppliers. The Company furnishes electric service to about 323,000
retail customers and natural gas service to about 170,000 retail customers. For
the year ended December 31, 1997, the Company derived approximately 82% of its
operating revenues from its electric business and 18% from its natural gas
business. The Company became a subsidiary of Ameren Corporation ("Ameren")
following the completion of the merger between CIPSCO Incorporated (formerly the
parent holding company of the Company) and Union Electric Company on December
31, 1997.
WHERE YOU CAN FIND MORE INFORMATION
The Company has filed a Registration Statement with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"). This prospectus is part of the Registration
Statement, but the Registration Statement also contains additional information
and exhibits. The Company also files annual, quarterly and current reports,
proxy statements and other information with the Commission. You may read and
copy the Registration Statement and any document that the Company files at the
Commission's public reference room at 450 Fifth Street, N.W., Washington, D.C.
20549. You can call the Commission's toll-free telephone number at
1-800-SEC-0330 for further information on the public reference room. The
Commission maintains a web site at www.sec.gov that contains reports, proxy and
information statements and other information regarding companies (such as the
Company) that file documents with the Commission electronically. The documents
can be found by searching the EDGAR Archives with the Commission electronically.
The documents can be found by searching the EDGAR Archives at the Commission's
web site.
The Commission allows the Company to "incorporate by reference" the
information that it files with the Commission which means that the Company can
disclose important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus and should be read with the same care. Later information that the
Company files with the Commission will automatically update and supersede this
information. The Company incorporates by reference the documents below:
- Annual Report on Form 10-K for the year ended December 31, 1997 (the "1997
Form 10-K").
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June
30, 1998 and September 30, 1998
- Current Reports on Form 8-K dated January 20, 1998, June 12, 1998 (as
amended on June 23, 1998) and September 24, 1998.
- Any future filings made with the Commission under Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), if the filings are made prior to the time that all of the
Senior Notes are sold.
3
<PAGE>
You may request a free copy of these filings by writing or telephoning us at
the following address:
Central Illinois Public Service Company
Attention: Secretary's Department
P.O. Box 66149
St. Louis, Missouri 63166-6149
Telephone: 314-554-2715
You should read and rely only on the information incorporated by reference
or provided in this prospectus or any supplement. The Company has not authorized
anyone else to provide you with different information. The Company is not making
an offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus is accurate as of any
date other than the date on the front of those documents.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges is computed by dividing earnings by
fixed charges before income taxes. For the purposes of such computations (i)
earnings consist of net income plus fixed charges and income taxes and (ii)
fixed charges consist of interest on long-term debt, net of amortization of debt
discount, premium and expenses, interest on provision for revenue refunds and
other interest charges.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------
1993 1994 1995 1996 1997
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges..................................... 4.82 4.93 4.41 4.30 3.65(1)
<CAPTION>
TWELVE
MONTHS
ENDED
SEPTEMBER
30, 1998
----------
<S> <C>
Ratio of Earnings to Fixed Charges..................................... 3.99(1)
</TABLE>
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(1) Net income for the year ended December 31, 1997 and the twelve months ended
September 30, 1998 was affected by the Company's recording in the fourth
quarter of 1997 of an extraordinary charge to earnings ($25 million, net of
income taxes) for the write-off of generation-related regulatory assets and
liabilities as a result of electric industry restructuring legislation
enacted in Illinois in December 1997.
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the Senior
Notes will be used (i) in connection with the payment at maturity or the
redemption, refunding, refinancing or purchase of certain outstanding long-term
debt, including without limitation, bank borrowings and first mortgage bonds of
the Company (the "Prior Debt") and (ii) for general corporate purposes
(including payment of short-term debt incurred to finance construction
expenditures and for issuance costs). The specific allocation of the net
proceeds of a particular series of Senior Notes and information relating to the
particular Prior Debt, if any, to be paid at maturity, redeemed, refunded,
refinanced or purchased will be described in the Prospectus Supplement related
thereto. In case of the redemption, refunding or purchase of Prior Debt
consisting of first mortgage bonds, proceeds of the Senior Notes may be applied
to pay any redemption premium or purchase price in excess of the principal
amount.
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<PAGE>
DESCRIPTION OF SENIOR NOTES
GENERAL
Each series of Senior Notes is to be an initial issue of a new series of
debt securities issued under, and secured by, the Indenture dated as of December
1, 1998, as it may be amended or supplemented (collectively, the "Indenture"),
between the Company and The Bank of New York, as trustee (the "Trustee"). The
following summaries of certain provisions of the Indenture do not purport to be
complete and are subject to, and qualified in their entirety by, all of the
provisions of the Indenture which is an exhibit to the Registration Statement of
which this Prospectus is a part and which is incorporated herein by this
reference.
Until the Release Date (as defined below), all of the Senior Notes
outstanding under the Indenture will be secured by one or more series of the
Company's Senior Note Mortgage Bonds (as defined below) issued and delivered by
the Company to the Trustee. See "--Security; Release Date." ON THE RELEASE DATE,
THE SENIOR NOTES WILL CEASE TO BE SECURED BY THE SENIOR NOTE MORTGAGE BONDS,
WILL BECOME UNSECURED GENERAL OBLIGATIONS OF THE COMPANY AND WILL RANK ON A
PARITY WITH OTHER UNSECURED AND UNSUBORDINATED INDEBTEDNESS OF THE COMPANY. The
Indenture provides that, in addition to the Senior Notes offered hereby,
additional Senior Notes may be issued thereunder, without limitation as to
aggregate principal amount, provided that, prior to the Release Date, the
principal amount of Senior Notes that may be issued and outstanding under the
Indenture cannot exceed the principal amount of Senior Note Mortgage Bonds then
held by the Trustee. See "Description of Senior Note Mortgage Bonds--Issuance of
Additional First Mortgage Bonds."
There is no requirement under the Indenture that future issuances of debt
securities of the Company be issued exclusively under the Indenture, and the
Company will be free to employ other indentures or documentation, containing
provisions different from those included in the Indenture or applicable to one
or more issuances of Senior Notes, in connection with future issuances of such
other debt securities.
The Indenture provides that the Senior Notes will be issued in one or more
series, may be issued at various times, may have differing maturity dates and
may bear interest at differing rates. The Prospectus Supplement applicable to
each issuance of Senior Notes will specify: (1) the designation and aggregate
principal amount of such Senior Notes; (2) the original issue date for such
Senior Notes and the date on which such Senior Notes will mature; (3) the
interest rate or rates, or method of calculation of such rate or rates, for such
Senior Notes, and the date from which such interest shall accrue; (4) the dates
on which such interest will be payable; (5) the record dates for payments of
interest if other than the fifteenth day of the calendar month next preceding
each interest payment date; (6) the terms, if any, regarding the optional or
mandatory redemption of such Senior Notes, including redemption date or dates of
such Senior Notes, if any, and the price or prices applicable to such
redemption; (7) the period or periods within which, the price or prices at which
and the terms and conditions upon which such Senior Notes may be repaid, in
whole or in part, at the option of the holder thereof; (8) if prior to the
Release Date, the designation of the related series of Senior Note Mortgage
Bonds being delivered to the Trustee in connection with the issuance of such
Senior Notes; and (9) any other terms of such Senior Notes not inconsistent with
the Indenture. Unless otherwise indicated in the applicable Prospectus
Supplement, the Senior Notes will be denominated in United States currency in
minimum denominations of $1,000 and integral multiples thereof.
There are no provisions in the Indenture or the Senior Notes that require
the Company to redeem, or permit the holders to cause a redemption of, the
Senior Notes or that otherwise protect the holders in the event that the Company
incurs substantial additional indebtedness, whether or not in connection with a
change in control of the Company.
5
<PAGE>
REGISTRATION, TRANSFER AND EXCHANGE
Unless otherwise indicated in the applicable Prospectus Supplement, each
series of Senior Notes will initially be issued in the form of one or more
global securities (each, a "Global Security" and, collectively, the "Global
Securities"), in registered form, without coupons, as described under
"Book-Entry System." The Global Securities will be registered in the name of a
nominee of The Depository Trust Company ("DTC"), as depository (the
"Depository"), and deposited with, or on behalf of, the Depository. Except as
set forth herein under "Book-Entry System," owners of beneficial interests in a
Global Security will not be entitled to have Senior Notes registered in their
names, will not receive or be entitled to receive physical delivery of any such
Senior Notes and will not be considered the registered holder thereof under the
Indenture.
Senior Notes of any series will be exchangeable for other Senior Notes of
the same series of any authorized denominations and of a like aggregate
principal amount and tenor.
Unless otherwise indicated in the applicable Prospectus Supplement, Senior
Notes may be presented for exchange or registration of transfer (duly endorsed
or accompanied by a duly executed written instrument of transfer), at the office
of the Trustee maintained for such purpose with respect to any series of Senior
Notes, without service charge but upon payment of any taxes and other
governmental charges as described in the Indenture. Such transfer or exchange
will be effected upon the Company and the Trustee being satisfied with the
documents of title and indemnity of the person making the request.
In the event of any redemption of Senior Notes of any series, the Trustee
will not be required to exchange or register a transfer of any Senior Notes of
such series selected, called or being called for redemption except, in the case
of any Senior Note to be redeemed in part, the portion thereof not to be so
redeemed.
PAYMENT AND PAYING AGENTS
Principal of and interest and premium, if any, on Senior Notes issued in the
form of Global Securities will be paid in the manner described below under
"Book-Entry System."
Unless otherwise indicated in the applicable Prospectus Supplement, interest
on Senior Notes (other than interest at maturity) that are in the form of
certificated securities will be paid by check payable in clearinghouse funds
mailed to the person entitled thereto at such person's address as it appears in
the register for the Senior Notes maintained by the Trustee; provided, however,
a holder of Senior Notes of one or more series under the Indenture in the
aggregate principal amount of $10,000,000 or more having the same interest
payment dates will be entitled to receive payments of interest on such series by
wire transfer of immediately available funds to a bank within the continental
United States if appropriate wire transfer instructions have been received by
the Trustee on or prior to the applicable regular record date for such interest
payment date. Unless otherwise indicated in the applicable Prospectus
Supplement, the principal of, and interest at maturity and premium, if any, on
Senior Notes in the form of certificated securities will be payable in
immediately available funds at the office of the Trustee or at the authorized
office of any paying agent upon presentation and surrender of such Senior Notes.
All monies paid by the Company to the Trustee for the payment of principal
of, interest or premium, if any, on any Senior Note which remain unclaimed at
the end of two years after such principal, interest or premium shall have become
due and payable will be repaid to the Company, subject to applicable abandoned
property laws, and the holder of such Senior Note will thereafter look only to
the Company for payment thereof.
In any case where the date of maturity of the principal of or any premium or
interest on any Senior Note or the date fixed for redemption of any Senior Note
is not a Business Day, then payment of such principal or any premium or interest
need not be made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of maturity or the
date fixed
6
<PAGE>
for redemption, and, in the case of timely payment thereof, no interest shall
accrue for the period from and after such interest payment date or the date on
which the principal or premium of the Senior Note is stated to be payable to
such next succeeding Business Day.
REDEMPTION PROVISIONS
Any terms for the optional or mandatory redemption of the Senior Notes will
be indicated in the applicable Prospectus Supplement. Unless otherwise indicated
in the applicable Prospectus Supplement, the Senior Notes 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 Senior Notes of a series
are to be redeemed, the particular Senior Notes to be redeemed will be selected
by the Trustee in such manner as it shall deem appropriate and fair.
Any notice of redemption at the option of the Company may state that such
redemption will be conditional upon receipt by the Trustee, on or prior to the
date fixed for such redemption, of money sufficient to pay the principal of and
premium, if any, and interest on such Senior Notes 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 Senior Notes.
SECURITY; RELEASE DATE
Until the Release Date, the Senior Notes will be secured by one or more
series of the Company's first mortgage bonds (the "Senior Note Mortgage Bonds")
issued and delivered by the Company to the Trustee (see "Description of Senior
Note Mortgage Bonds"). Upon the issuance of a series of Senior Notes before the
Release Date, the Company will simultaneously issue and deliver to the Trustee,
as security for all the Senior Notes being issued, a series of Senior Note
Mortgage Bonds that will have the same stated maturity date and mandatory
redemption provisions, and will be in the same aggregate principal amount as the
series of the Senior Notes being issued. Any series of Senior Note Mortgage
Bonds may, but need not, bear interest. The series of Senior Note Mortgage Bonds
to be issued to the Trustee concurrently with the issuance of the related series
of Senior Notes will bear interest at the same rate as is borne by such series
of Senior Notes. Payment by the Company to the Trustee of principal of, premium,
if any, and interest on, a series of Senior Note Mortgage Bonds will be applied
by the Trustee to satisfy the Company's obligations with respect to principal
of, premium, if any, and interest on, the related series of Senior Notes.
THE RELEASE DATE WILL BE THE DATE THAT ALL FIRST MORTGAGE BONDS OF THE
COMPANY (THE "FIRST MORTGAGE BONDS") ISSUED AND OUTSTANDING UNDER THE FIRST
MORTGAGE INDENTURE (AS DEFINED BELOW), OTHER THAN SENIOR NOTE MORTGAGE BONDS,
HAVE BEEN RETIRED (AT, BEFORE OR AFTER THE MATURITY THEREOF) THROUGH PAYMENT,
REDEMPTION OR OTHERWISE (INCLUDING THOSE FIRST MORTGAGE BONDS DEEMED TO BE PAID
WITHIN THE MEANING OF THE FIRST MORTGAGE INDENTURE). ON THE RELEASE DATE, THE
TRUSTEE WILL DELIVER TO THE COMPANY FOR CANCELLATION ALL SENIOR NOTE MORTGAGE
BONDS AND NOT LATER THAN 30 DAYS THEREAFTER, WILL PROVIDE NOTICE TO ALL HOLDERS
OF SENIOR NOTES OF THE OCCURRENCE OF THE RELEASE DATE. AS A RESULT, ON THE
RELEASE DATE, THE SENIOR NOTE MORTGAGE BONDS SHALL CEASE TO SECURE THE SENIOR
NOTES, AND THE SENIOR NOTES WILL BECOME UNSECURED AND UNSUBORDINATED GENERAL
OBLIGATIONS OF THE COMPANY.
Each series of Senior Note Mortgage Bonds will be a series of First Mortgage
Bonds of the Company, all of which are secured by a lien on certain property
owned by the Company. See "Description of Senior Note Mortgage Bonds--Security."
Upon the payment or cancellation of any outstanding Senior Notes, the Trustee
shall surrender to the Company for cancellation an equal principal amount of the
related series of Senior Note Mortgage Bonds. The Company will not permit, at
any time prior to the Release Date, the aggregate principal amount of Senior
Note Mortgage Bonds held by the Trustee to be less than the aggregate principal
amount of Senior Notes then outstanding. Following the Release Date, the Company
will cause the First Mortgage Indenture to be discharged and the Company will
not issue any additional First Mortgage Bonds under the First Mortgage
Indenture. While the Company will be precluded after the
7
<PAGE>
Release Date from issuing additional First Mortgage Bonds, the Company will not
be precluded under the Indenture or Senior Notes from issuing or assuming other
secured debt, or incurring liens on its property, except to the extent indicated
below under "Certain Covenants of the Company--Limitation on Liens" and except
as otherwise indicated in the applicable Prospectus Supplement.
EVENTS OF DEFAULT
The following constitute events of default under the Indenture: (a) default
in the payment of principal of and premium, if any, on any Senior Note when due
and payable; (b) default in the payment of interest on any Senior Note when due
and payable which continues for sixty days; (c) default in the performance or
breach of any other covenant or warranty of the Company in the Senior Notes or
in the Indenture and the continuation thereof for ninety days after written
notice thereof to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 33% in aggregate principal amount of the outstanding
Senior Notes; (d) prior to the Release Date, the occurrence of a default as
defined in the First Mortgage Indenture; provided, however, that the waiver or
cure of such default under the First Mortgage Indenture and the rescission and
annulment of the consequences thereof under the First Mortgage Indenture shall
constitute a waiver of the corresponding event of default under the Indenture
and a rescission and annulment of the consequences thereof under the Indenture;
and (e) certain events of bankruptcy, insolvency, reorganization, assignment or
receivership of the Company.
If an event of default under the Indenture occurs and is continuing, either
the Trustee or the holders of a majority in aggregate principal amount of the
outstanding Senior Notes may declare, by notice in writing, the principal amount
of and interest on all Senior Notes to be due and payable immediately. Upon such
acceleration of the Senior Notes, the Senior Note Mortgage Bonds shall be
immediately redeemable upon demand of the Trustee (and surrender thereof to the
Mortgage Corporate Trustee (as defined herein)) at a redemption price of 100% of
the principal amount thereof, together with interest to the redemption date. See
"Description of Senior Note Mortgage Bonds--Redemption Provisions." At any time
after an acceleration of the Senior Notes has been declared, but before a
judgment or decree for the payment of the principal amount of the Senior Notes
has been obtained (and provided the acceleration of all Senior Note Mortgage
Bonds has not occurred), if the Company pays or deposits with the Trustee a sum
sufficient to pay all matured installments of interest and the principal and any
premium which has become due otherwise than by acceleration and all defaults
shall have been cured or waived, then such payment or deposit will cause an
automatic rescission and annulment of the acceleration of the Senior Notes.
The Indenture provides that the Trustee generally 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 of Senior Notes unless such holders
have offered to the Trustee reasonable security or indemnity. Subject to such
provisions for indemnity and certain other limitations contained in the
Indenture, the holders of a majority in principal amount of the outstanding
Senior Notes generally will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or of
exercising any trust or power conferred on the Trustee. The holders of a
majority in principal amount of the outstanding Senior Notes generally will have
the right to waive any past default or event of default under the Indenture. The
Indenture provides that no holder of Senior Notes may institute any action
against the Company under the Indenture unless such holder previously shall have
given to the Trustee written notice of default and continuance thereof and
unless the holders of not less than a majority in aggregate principal amount of
Senior Notes shall have requested the Trustee to institute such action and shall
have offered the Trustee reasonable indemnity, and the Trustee shall not have
instituted such action within 60 days of such request. Furthermore, no holder of
Senior Notes will be entitled to institute any such action if and to the extent
that such action would disturb or prejudice the rights of other holders of
Senior Notes. Notwithstanding that the right of a holder of Senior Notes to
institute a proceeding with respect to the Indenture is subject to certain
conditions precedent, each holder of a Senior Note has the right, which is
absolute and unconditional, to receive payment of the principal of and premium,
if any, and interest, if any, on such
8
<PAGE>
Senior Note when due and to institute suit for the enforcement of any such
payment, and such rights may not be impaired without the consent of such Holder
of Senior Notes. The Indenture provides that the Trustee, within 90 days after
it receives notice of the occurrence of a default with respect to the Senior
Notes, is required to give the holders of the Senior Notes notice of such
default, unless cured or waived, but, except in the case of default in the
payment of principal of, or premium, if any, or interest on, any Senior Notes,
the Trustee may withhold such notice if it determines in good faith that it is
in the interest of such holders to do so. The Company is required to deliver to
the Trustee each year a certificate as to whether or not, to the knowledge of
the officers signing such certificate, the Company is in compliance with the
conditions and covenants under the Indenture.
MODIFICATION
Modification and amendment of the Indenture may be effected by the Company
and the Trustee with the consent of the holders of a majority in principal
amount of the outstanding Senior Notes affected thereby, provided that no such
modification or amendment may, without the consent of the holder of each
outstanding Senior Note affected thereby, (i) change the maturity date of any
Senior Note; (ii) reduce the rate (or change the method of calculation thereof)
or extend the time of payment of interest on any Senior Note; (iii) reduce the
principal amount of, or premium payable on, any Senior Note; (iv) change the
coin or currency of any payment of principal of, or any premium or interest on,
any Senior Note; (v) change the date on which any Senior Note may be redeemed or
repaid at the option of the holder thereof or adversely affect the rights of a
holder to institute suit for the enforcement of any payment on or with respect
to any Senior Note; (vi) impair the interest of the Trustee in the Senior Note
Mortgage Bonds held by it or, prior to the Release Date, reduce the principal
amount of any series of Senior Note Mortgage Bonds securing the Senior Notes to
an amount less than the principal amount of the related series of Senior Notes
or alter the payment provisions of such Senior Note Mortgage Bonds in a manner
adverse to the holders of the Senior Notes; or (vii) modify the foregoing
requirements or reduce the percentage of outstanding Senior Notes necessary to
modify or amend the Indenture or to waive any past default to less than a
majority. Modification and amendment of the Indenture may be effected by the
Company and the Trustee without the consent of the holders in certain cases,
including (a) to add to the covenants of the Company for the benefit of the
holders or to surrender a right conferred on the Company in the Indenture; (b)
to add further security for the Senior Notes; (c) to add provisions enabling the
Company to be released with respect to one or more series of outstanding Senior
Notes from its obligations under the covenants described under "Certain
Covenants of the Company--Limitation on Liens" and "--Limitation on Sale and
Lease-Back Transactions" and "Consolidation, Merger and Sale or Disposition of
Assets" below, upon satisfaction of conditions with respect to such series of
Senior Notes that are the same as those described below under "--Defeasance and
Discharge" (except that the opinion of tax counsel referred to therein need not
be based upon an External Tax Pronouncement (as defined in the Indenture)); (d)
to supply omissions, cure ambiguities or correct defects which actions, in each
case, are not prejudicial to the interests of the holders in any material
respect; or (e) to make any other change that is not prejudicial to the holders
of Senior Notes.
A supplemental indenture which changes or eliminates any covenant or other
provision of the Indenture (or any supplemental indenture) which has expressly
been included solely for the benefit of one or more series of Senior Notes, or
which modifies the rights of the holders of Senior Notes of such series with
respect to such covenant or provision, will be deemed not to affect the rights
under the Indenture of the holders of Senior Notes of any other series.
DEFEASANCE AND DISCHARGE
The Indenture provides that the Company will be discharged from any and all
obligations in respect of the Senior Notes and the Indenture (except for certain
obligations such as obligations to register the transfer or exchange of Senior
Notes, replace stolen, lost or mutilated Senior Notes and maintain paying
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agencies) if, among other things, the Company irrevocably deposits with the
Trustee, in trust for the benefit of holders of Senior Notes, money or certain
United States government obligations, or any combination thereof, which through
the payment of interest thereon and principal thereof in accordance with their
terms will provide money in an amount sufficient, without reinvestment, to make
all payments of principal of, and any premium and interest on, the Senior Notes
on the dates such payments are due in accordance with the terms of the Indenture
and the Senior Notes; provided that, unless all of the Senior Notes are to be
due within 90 days of such deposit by redemption or otherwise, the Company shall
also have delivered to the Trustee an opinion of counsel to the effect that the
holders of the Senior Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance or discharge of the Indenture
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case absent such defeasance
or discharge of the Indenture. Thereafter, the holders of Senior Notes must look
only to such deposit for payment of the principal of, and interest and any
premium on, the Senior Notes.
CONSOLIDATION, MERGER AND SALE OR DISPOSITION OF ASSETS
The Company will not consolidate with or merge into any other corporation or
sell or otherwise dispose of its properties as or substantially as an entirety
to any person unless (i) the successor or transferee corporation or the person
that receives such properties pursuant to such sale, transfer or other
disposition shall be a corporation organized and existing under the laws of the
United States of America, any state thereof, or the District of Columbia, (ii)
the successor or transferee corporation or the person that receives such
properties pursuant to such sale, transfer or other disposition assumes by
supplemental indenture the due and punctual payment of the principal of and
premium and interest on all the Senior Notes and the performance of every
covenant of the Indenture to be performed or observed by the Company and (iii)
prior to the Release Date, the successor or transferee corporation or the person
that receives such properties pursuant to such sale, transfer or other
disposition assumes the Company's obligations under the First Mortgage Indenture
with respect to the Senior Note Mortgage Bonds. Upon any such consolidation,
merger, sale, transfer or other disposition of the properties of the Company
substantially as an entirety, the successor corporation formed by such
consolidation or into which the Company is merged or the person to which such
sale, transfer or other disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the Indenture
with the same effect as if such successor corporation or person had been named
as the Company therein and the Company will be released from all obligations
under the Indenture. For purposes of the Indenture, the conveyance or other
transfer by the Company of (a) all or any portion of its facilities for the
generation of electric energy, (b) all of its facilities for the transmission of
electric energy or (c) all of its facilities for the distribution of natural
gas, in each case considered alone or in any combination with properties
described in any other clause, shall in no event be deemed to constitute a
conveyance or other transfer of all the properties of the Company, as or
substantially as an entirety.
CERTAIN COVENANTS OF THE COMPANY
LIMITATION ON LIENS
The Indenture provides, so long as any Senior Notes are outstanding, the
Company may not issue, assume, guarantee or permit to exist after the Release
Date any Debt that is secured by any mortgage, security interest, pledge or lien
("Lien") of or upon any Operating Property of the Company, whether owned at the
date of the Indenture or thereafter acquired, without in any such case
effectively securing the Senior Notes (together with, if the Company shall so
determine, any other indebtedness of the Company ranking senior to, or equally
with, the Senior Notes) equally and ratably with such Debt (but only so long as
such Debt is so secured).
The foregoing restriction will not apply to: (1) Liens on any Operating
Property existing at the time of its acquisition (which Liens may also extend to
subsequent repairs, alterations and improvements to such
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Operating Property); (2) Liens on Operating Property of a corporation existing
at the time such corporation is merged into or consolidated with, or such
corporation disposes of all or substantially all its properties (or those of a
division) to, the Company; (3) Liens on Operating Property to secure the cost of
acquisition, construction, development or substantial repair, alteration or
improvement of property or to secure Debt incurred to provide funds for any such
purpose or for reimbursement of funds previously expended for any such purpose,
provided such Liens are created or assumed contemporaneously with, or within 18
months after, such acquisition or the completion of substantial repair or
alteration, construction, development or substantial improvement; (4) Liens in
favor of any State, or any department, agency or instrumentality or political
subdivision of any State, or for the benefit of holders of securities issued by
any such entity (or providers of credit enhancement with respect to such
securities), to secure any Debt (including, without limitation, obligations of
the Company with respect to industrial development, pollution control or similar
revenue bonds) incurred for the purpose of financing all or any part of the
purchase price or the cost of substantially repairing or altering, constructing,
developing or substantially improving Operating Property of the Company; or (5)
any extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in clauses (1)
through (4), provided, however, that the principal amount of Debt secured
thereby and not otherwise authorized by said clauses (1) to (4), inclusive,
shall not exceed the principal amount of Debt, plus any premium or fee payable
in connection with any such extension, renewal or replacement, so secured at the
time of such extension, renewal or replacement. However, the foregoing
restriction will not apply to the issuance, assumption or guarantee by the
Company of Debt secured by a Lien that would otherwise be subject to the
foregoing restrictions up to an aggregate amount which, together with all other
secured Debt of the Company (not including secured Debt permitted under any of
the foregoing exceptions) and the Value (as defined below) of Sale and
Lease-Back Transactions (as defined below) existing at such time (other than
Sale and Lease-Back Transactions the proceeds of which have been applied to the
retirement of certain indebtedness, Sale and Lease-Back Transactions in which
the property involved would have been permitted to be mortgaged under any of the
foregoing exceptions in clauses (1) to (5) and Sale and Lease-Back Transactions
that are permitted by the first sentence of "--Limitation on Sale and Lease-Back
Transactions" below), does not exceed 15% of Capitalization.
LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS
The Indenture provides that so long as any Senior Notes are outstanding, the
Company may not enter into or permit to exist after the Release Date any Sale
and Lease-Back Transaction with respect to any Operating Property (except for
transactions involving leases for a term, including renewals, of not more than
48 months), if the purchaser's commitment is obtained more than 18 months after
the later of the completion of the acquisition and the placing in operation of
such Operating Property or of such Operating Property as constructed or
developed or substantially repaired, altered or improved. This restriction will
not apply if (a) the Company would be entitled pursuant to any of the provisions
described in clauses (1) to (5) of the first sentence of the second paragraph
under "--Limitation on Liens" above to issue, assume, guarantee or permit to
exist Debt secured by a Lien on such Operating Property without equally and
ratably securing the Senior Notes, (b) after giving effect to such Sale and
Lease-Back Transaction, the Company could incur pursuant to the provisions
described in the second sentence of the second paragraph under "--Limitation on
Liens," at least $1.00 of additional Debt secured by Liens (other than Liens
permitted by clause (a)), or (c) the Company applies within 180 days an amount
equal to, in the case of a sale or transfer for cash, the net proceeds (not
exceeding the net book value), and, otherwise, an amount equal to the fair value
(as determined by its Board of Directors) of the Operating Property so leased,
to the retirement of Senior Notes or other Debt of the Company ranking senior
to, or equally with, the Senior Notes, subject to reduction for Senior Notes and
such Debt retired during such 180-day period otherwise than pursuant to
mandatory sinking fund or prepayment provisions and payments at stated maturity.
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CERTAIN DEFINITIONS
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions or trust companies in the
Borough of Manhattan, the City and State of New York, or in the city where the
corporate trust office of the Trustee is located, are obligated or authorized by
law or executive order to close.
"Capitalization" means the total of all the following items appearing on, or
included in, the consolidated balance sheet of the Company: (i) liabilities for
Debt maturing more than twelve (12) months from the date of determination; and
(ii) common stock, preferred stock, hybrid preferred securities, premium on
capital stock, capital surplus, capital in excess of par value, and retained
earnings (however the foregoing may be designated), less, to the extent not
otherwise deducted, the cost of shares of capital stock of the Company held in
its treasury. Subject to the foregoing, Capitalization will be determined in
accordance with generally accepted accounting principles and practices
applicable to the type of business in which the Company is engaged and that are
approved by independent accountants regularly retained by the Company, and may
be determined as of a date not more than sixty (60) days prior to the happening
of an event for which such determination is being made.
"Debt" means any outstanding debt for money borrowed of the Company
evidenced by notes, debentures, bonds, or other securities, or guarantees of any
thereof.
"Operating Property" means (i) any interest in real property owned by the
Company and (ii) any asset owned by the Company that is depreciable in
accordance with GAAP (as defined in the Indenture), excluding, in either case,
any interest of the Company as lessee under any lease which has been or would be
capitalized on the books of the lessee in accordance with GAAP.
"Sale and Lease-Back Transaction" means any arrangement, other than
arrangements first entered into prior to the date of the Indenture, with any
person providing for the leasing to the Company of any Operating Property
(except for leases for a term, including any renewals thereof, of not more than
48 months), which Operating Property has been or is to be sold or transferred by
the Company to such person; provided, however, Sale and Lease-back Transaction
does not include any arrangement first entered into prior to the date of the
Indenture.
"Value" means, with respect to a Sale and Lease-Back Transaction, as of any
particular time, the amount equal to the greater of (i) the net proceeds to the
Company from the sale or transfer of the property leased pursuant to such Sale
and Lease-Back Transaction and (ii) the net book value of such property, as
determined in accordance with generally accepted accounting principles by the
Company at the time of entering into such Sale and Lease-Back Transaction, in
either case multiplied by a fraction, the numerator of which shall be equal to
the number of full years of the term of the lease that is part of such Sale and
Lease-Back Transaction remaining at the time of determination and the
denominator of which shall be equal to the number of full years of such term,
without regard, in any case, to any renewal or extension options contained in
such lease.
VOTING OF SENIOR NOTE MORTGAGE BONDS HELD BY TRUSTEE
The Trustee, as the holder of Senior Note Mortgage Bonds, will attend any
meeting of bondholders under the First Mortgage Indenture, or, at its option,
will deliver its proxy in connection therewith relating to matters with respect
to which it is entitled to vote or consent. So long as no event of default under
the Indenture shall have occurred or be continuing, the Trustee shall vote all
Senior Note Mortgage Bonds then held by it, or consent with respect thereto,
proportionately with the vote or consent of the holders of all other First
Mortgage Bonds outstanding under the First Mortgage Indenture, the holders of
which are eligible to vote or consent; provided, however, that the Trustee shall
not so vote in favor of, or so consent to, any amendment or modification of the
First Mortgage Indenture which, if it were an amendment or modification of the
Indenture, would require the consent of holders of Senior Notes as described
under
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"--Modification," without the prior consent of holders of Senior Notes that
would be required for such an amendment or modification of the Indenture.
RESIGNATION OR REMOVAL OF TRUSTEE
The Trustee may resign at any time upon written notice to the Company
specifying the day upon which the resignation is to take effect and such
resignation will take effect immediately upon the later of the appointment of a
successor Trustee and such specified day.
The Trustee may be removed at any time by an instrument or concurrent
instruments in writing filed with the Trustee and signed by the holders, or
their attorneys-in-fact, of at least a majority in principal amount of the then
outstanding Senior Notes. In addition, so long as no Event of Default or event
which, with the giving of notice or lapse of time or both, would become an Event
of Default has occurred and is continuing, the Company may remove the Trustee
upon notice to the holder of each Senior Note outstanding and the Trustee, and
appointment of a successor Trustee.
CONCERNING THE TRUSTEE
The Company and its affiliates maintain corporate trust and other normal
banking relationships with The Bank of New York. The Indenture provides that the
Company's obligations to compensate the Trustee and reimburse the Trustee for
expenses, disbursements and advances will constitute indebtedness which will be
secured by a lien generally prior to that of the Senior Notes upon all property
and funds held or collected by the Trustee as such.
GOVERNING LAW
The Indenture and each Senior Note will be governed by New York law.
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DESCRIPTION OF SENIOR NOTE MORTGAGE BONDS
GENERAL
Each series of Senior Note Mortgage Bonds will be a series of First Mortgage
Bonds issued under the Indenture of Mortgage or Deed of Trust dated October 1,
1941 between the Company and U.S. Bank Trust National Association, Chicago,
Illinois, as successor trustee (the "Mortgage Corporate Trustee"), and an
individual successor co-trustee (collectively, the "Mortgage Trustees"), as
amended and supplemented and as to be further amended by one or more
supplemental indentures with respect to the Senior Note Mortgage Bonds (such
Indenture of Mortgage, as supplemented and as to be supplemented, is herein
referred to as the "First Mortgage Indenture"). The following summaries of
certain provisions of the First Mortgage Indenture do not purport to be complete
and are subject to, and qualified in their entirety by, all of the provisions of
the First Mortgage Indenture which is an exhibit to the Registration Statement
of which this Prospectus is a part and which is incorporated herein by this
reference.
The Senior Note Mortgage Bonds will be issued as security for the Company's
obligations under the Indenture and will be immediately delivered to, and
registered in the name of, the Trustee. The Indenture provides that the Trustee
shall not transfer any Senior Note Mortgage Bonds except to a successor trustee,
to the Company (as provided in the Indenture) or in compliance with a court
order in connection with a bankruptcy or reorganization proceeding of the
Company. The Trustee shall generally vote the Senior Note Mortgage Bonds
proportionately with what it believes to be the vote of all other First Mortgage
Bonds then outstanding, as described under "Description of Senior Notes--Voting
of Senior Note Mortgage Bonds Held by Trustee."
The Senior Note Mortgage Bonds will correspond to the corresponding series
of Senior Notes in respect of principal amount, interest rate, maturity date and
redemption provisions. Upon payment of the principal of or premium, if any, or
interest on the Senior Notes, Senior Note Mortgage Bonds of the corresponding
series in a principal amount equal to the principal amount of such Senior Notes
will, to the extent of such payment of principal, premium or interest, be deemed
fully paid and the obligation of the Company to make such payment shall be
discharged.
At September 30, 1998 the Company had outstanding $366 million in principal
amount of First Mortgage Bonds issued under the First Mortgage Indenture. First
Mortgage Bonds may be authenticated against an equivalent principal amount of
First Mortgage Bonds previously issued under the First Mortgage Indenture and/or
against net expenditures for bondable property, which aggregated not less than
approximately $1.3 billion on September 30, 1998. See "--Issuance of Additional
First Mortgage Bonds" below. For the five years ended September 30, 1998, gross
additions to the utility properties of the Company aggregated approximately $540
million. Gross retirements for such period were approximately $266 million.
REDEMPTION PROVISIONS
The Senior Note Mortgage Bonds will be redeemed on the respective dates and
in the respective principal amounts that correspond to the redemption dates for,
and the principal amounts to be redeemed of, the corresponding series of Senior
Notes. The Senior Note Mortgage Bonds will not be entitled to any covenant
providing for the retirement or amortization of Senior Note Mortgage Bonds
outstanding or for the certification of expenditures for bondable property in
lieu of such retirement.
In the event of an event of default under the Indenture and acceleration of
the Senior Notes, the Senior Note Mortgage Bonds will be immediately redeemable
in whole, upon demand of the Trustee (and surrender thereof to the Mortgage
Corporate Trustee), at a redemption price of 100% of the principal amount
thereof, together with accrued interest to the redemption date. See "Description
of Senior Notes--Events of Default."
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SECURITY
The Senior Note Mortgage Bonds will be secured by the lien of the First
Mortgage Indenture and will rank equally with all the First Mortgage Bonds at
any time outstanding under and secured by the First Mortgage Indenture, except
as to differences between series permitted by the First Mortgage Indenture and
not affecting the rank of the lien thereof. In the opinion of Sorling, Northrup,
Hanna, Cullen & Cochran, Ltd., Springfield, Illinois, Illinois counsel for the
Company, the First Mortgage Indenture constitutes a first mortgage lien, subject
only to permitted encumbrances and liens, on all or substantially all the
permanent fixed properties (other than excepted property) now owned by the
Company. The First Mortgage Indenture contains provisions subjecting
after-acquired property, other than excepted property, to the lien thereof. Such
provisions might not be effective as to proceeds, products, rents, issues or
profits of property subject to the lien of the Indenture realized, and
additional property acquired, within 90 days prior and subsequent to the filing
of a case with respect to the Company under the United States Bankruptcy Code,
state insolvency laws or other similar laws affecting the enforcement of
creditor's rights. The First Mortgage Indenture excepts or excludes from the
lien thereof all cash, securities, accounts and bills receivable, choses in
action and certain judgments not deposited or pledged with the Mortgage
Trustees, all personal property held for sale, lease, rental or consumption in
the ordinary course of business, the last day of each term under any lease of
property, all gas, oil and other minerals under any property subject thereto,
and certain real estate described therein.
MAINTENANCE AND RENEWAL
The First Mortgage Indenture provides that so long as any First Mortgage
Bonds, including the Senior Note Mortgage Bonds, are outstanding, the Company
will expend during each calendar year, and certify to the Mortgage Trustees, an
amount equal to 15% of its utility operating revenues for such year (after
deducting from such revenues the cost of electricity and gas purchased for
resale) for (i) the maintenance and repair of its mortgaged utility properties,
(ii) bondable property on which the First Mortgage Indenture is a first mortgage
lien and/or (iii) the retirement of the First Mortgage Bonds of any series
heretofore or hereafter issued under the First Mortgage Indenture. In lieu of
such requirement, the Company may pay to the Mortgage Trustees, in cash, any
deficiency in the amount required to be so expended, after deducting any
unapplied excess expenditures previously made for any of such purposes. Any such
cash may be applied to the retirement, through purchase, payment or redemption,
of the First Mortgage Bonds (such retirement by redemption to be only if such
First Mortgage Bonds are otherwise redeemable) or be withdrawn by the Company to
the extent of 100% of either gross or net expenditures for bondable property on
which the First Mortgage Indenture is a first mortgage lien.
The First Mortgage Indenture also provides that (i) the Company shall
maintain the mortgaged properties in good repair and working order, (ii) the
Mortgage Trustees may, and if requested by holders of a majority in principal
amount of all outstanding First Mortgage Bonds and furnished with the necessary
funds therefor shall, cause such properties to be inspected by an independent
engineer (not more often than at five-year intervals) to determine whether they
have been so maintained and whether any property, not retired on the Company's
books, should be so classified for the purpose of computing net expenditures for
bondable property or otherwise and (iii) the Company shall make good any
deficiency in maintenance disclosed by such engineer's report as rendered or as
modified by arbitration.
ISSUANCE OF ADDITIONAL FIRST MORTGAGE BONDS
The First Mortgage Indenture does not fix an overall dollar limitation on
the aggregate principal amount of all First Mortgage Bonds that may be issued or
outstanding thereunder. First Mortgage Bonds may be issued from time to time
under the First Mortgage Indenture in a principal amount equal to: (a) 60% of
eligible net expenditures made by the Company for bondable property constructed
or acquired by it and on which the First Mortgage Indenture is a first mortgage
lien, subject only to permitted encumbrances and liens and prepaid liens, (b)
the principal amount of previously authenticated First
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Mortgage Bonds which have been retired or for the retirement of which the
Mortgage Trustees hold the necessary funds, other than certain First Mortgage
Bonds not usable for the purpose under the terms of the First Mortgage
Indenture, and (c) the amount of money deposited with the Mortgage Trustees for
the purpose, which money may be applied to the retirement of bonds or may be
withdrawn in lieu of the authentication of an equivalent principal amount of
First Mortgage Bonds under the First Mortgage Indenture provisions referred to
in clauses (a) and (b). Upon the retirement of certain series of First Mortgage
Bonds, any bonds of such series and any net expenditures for bondable property
used or applied to satisfy the debt retirement provisions applicable to such
series may be used as the basis for the authentication of additional First
Mortgage Bonds under the First Mortgage Indenture. Net expenditures for bondable
property are determined as provided in the First Mortgage Indenture. In general,
bondable property means any utility plant, property or equipment owned by the
Company on January 1, 1941 or constructed or otherwise acquired by it on or
after that date and used or useful in its utility business. The Company owns and
operates only electric and gas utility properties.
No additional First Mortgage Bonds may be authenticated under the First
Mortgage Indenture provisions referred to in clauses (a) and (c) above, or
authenticated as provided in clause (b) above if such additional First Mortgage
Bonds are issued more than five years prior to the maturity of such previously
authenticated bonds and bear interest at a higher rate than such previously
authenticated bonds, unless the Company's net earnings (as described below) for
a 12-month period ending within 90 days next preceding such authentication were
at least equal to twice the interest for one year on (1) all first mortgage
bonds to be outstanding under the First Mortgage Indenture immediately after
such authentication, other than First Mortgage Bonds for the retirement of which
the Mortgage Trustees hold the necessary funds and (2) all other indebtedness
then secured by a lien equal or prior to the First Mortgage Indenture on
property of the Company, with certain exceptions. The Senior Note Mortgage Bonds
are expected to be issued on the basis of retired bonds and bondable property
additions.
"Net earnings" of the Company for any period means the earnings of the
Company, computed in accordance with accepted principles of accounting and
determined by deducting from the Company's total gross earnings and income for
the period, all its operating expenses for the period, including maintenance,
repairs, rentals, insurance, all taxes other than income taxes, depreciation,
retirements, renewals and replacements, but not amortization, all as provided in
the First Mortgage Indenture.
ACQUISITION OF PROPERTY SUBJECT TO A PRIOR LIEN
The First Mortgage Indenture provides that the Company will not acquire any
property of a value in excess of (i) $25,000,000 or (ii) 10 percent of utility
plant, less accumulated depreciation, of the Company at the time of acquisition,
but in no event less than $1,000,000, which at the time of acquisition is
subject to a lien equal or prior to the First Mortgage Indenture (other than
permitted encumbrances, and liens and prepaid liens) unless, at that time, (a)
the principal amount of all outstanding obligations secured by such equal or
prior lien shall not exceed 60% of the fair value of any bondable property so
acquired and (b) the net earnings of such property during a 12-month period
ending within 90 days next preceding such acquisition were at least equal to
twice the annual interest charge on such obligations, except any of such
obligations for the retirement of which the necessary funds are deposited under
such lien or with the Mortgage Trustees.
LIMITATIONS ON COMMON STOCK DIVIDENDS
The First Mortgage Indenture provides in effect that, so long as any First
Mortgage Bonds of all prior series are outstanding, the Company will not declare
or pay any dividends on its Common Stock (other than in stock), or make any
other distribution on or purchase any of its Common Stock, unless, for the
period beginning January 1, 1941 to the date of such payment, distribution or
purchase, the total amount charged or provided by the Company for maintenance
and repairs and provided for depreciation of properties subject to the lien of
the First Mortgage Indenture, plus the earned surplus (retained earnings)
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of the Company earned during such period and remaining after any such payment,
distribution or purchase, shall aggregate not less than 15% of the Company's
total utility operating revenues for the period, after deducting from such
revenues the cost of electricity and gas purchased for exchange or resale. For
the period January 1, 1941 to September 30, 1998, the total of the amounts so
expended and provided by the Company for such maintenance, repairs and
depreciation, plus the undistributed earned surplus accumulated during the
period, aggregated about 22.6% of such revenues and, exclusive of such earned
surplus, aggregated about 19.6% of such revenues.
MODIFICATION OF FIRST MORTGAGE INDENTURE
The terms and provisions of the First Mortgage Indenture may be modified or
amended from time to time by a supplemental indenture executed by the Company
and the Mortgage Trustees and without the consent of bondholders, for any one or
more of the purposes provided in the First Mortgage Indenture. Such purposes
include, among others, (1) any change or modification of any of the terms or
conditions of the First Mortgage Indenture, provided that such change or
modification would not adversely affect the First Mortgage Bonds then
outstanding and is made effective only with respect to First Mortgage Bonds
authenticated after the execution of such supplemental indenture and (2) any
other change or modification of such terms or conditions which is not
inconsistent with the terms, and which shall not impair the security, of the
First Mortgage Indenture.
The First Mortgage Indenture may be amended in any respect with the consent
of the holders of not less than 51% in principal amount of all First Mortgage
Bonds of all series then outstanding that would be affected thereby, except
that, without the consent of the holder of each outstanding First Mortgage Bond
affected thereby, no such amendment shall, among other things, (i) extend the
time or times or otherwise affect the terms of payment of the principal,
interest or premium in respect of any First Mortgage Bond, or reduce the
principal amount of any First Mortgage Bond or any premium thereon or the rate
of interest thereon, (ii) impair the right of any bondholder to institute suit
for the enforcement of any such payment in respect of its First Mortgage Bonds,
(iii) permit the creation of any lien ranking prior to, or on a parity with, the
lien of the Indenture, other than permitted encumbrances and liens or prepaid
liens, (iv) deprive any nonassenting bondholder of a lien on the mortgaged
property for the security of the bondholder's First Mortgage Bonds or (v) reduce
the percentage in principal amount of First Mortgage Bonds, the consent of the
holders of which is required for any such amendment.
OTHER FIRST MORTGAGE INDENTURE PROVISIONS
Holders of a majority in principal amount of the First Mortgage Bonds
secured by the First Mortgage Indenture have the right to direct the time,
method and place of conducting proceedings for remedies available to, or
exercising any trust or power of, the Mortgage Trustees. However, the Mortgage
Trustees may decline to follow such directions in certain circumstances
specified in the First Mortgage Indenture; the Mortgage Trustees are not
required to exercise powers of entry or sale under the First Mortgage Indenture;
and the Mortgage Trustees are entitled to be indemnified against expenditures
incurred in connection with taking any directed action or proceeding.
A "default" or an "event of default" under the First Mortgage Indenture
means: (a) failure to pay the principal of any First Mortgage Bond when due at
maturity or otherwise; (b) failure to pay First Mortgage Bond interest within 60
days after its due date; (c) failure to pay the principal of, or interest on,
any prior lien bond, continued beyond the grace period (if any) specified in the
lien securing such bond; (d) failure of the Company for 90 days after written
demand to comply with any other covenant or condition in the First Mortgage
Indenture or in any First Mortgage Bond or any prior lien bond or lien; or (e)
certain events relating to bankruptcy, insolvency, assignment or receivership.
The Mortgage Trustees are required to give notice to bondholders of defaults
known to the Mortgage Trustees, within 90 days after the occurrence thereof;
provided that the Mortgage Trustees may withhold giving notice to bondholders of
defaults (other than any default in payment of interest, principal or sinking or
purchase fund installment in
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respect of any First Mortgage Bond) if the Mortgage Trustees determine in good
faith that such withholding is in the interest of the bondholders. Upon default,
the Mortgage Trustees may, among other remedies, and upon written notice from
the holders of a majority in principal amount of First Mortgage Bonds then
outstanding under the First Mortgage Indenture shall, declare the principal of
all First Mortgage Bonds to be immediately due and payable. Upon certain terms
and conditions, the declaration of acceleration may be rescinded and waived.
The Company is required to furnish to the Mortgage Trustees certificates of
officers and engineers and, in certain cases, of accountants in connection with
the authentication of First Mortgage Bonds, withdrawal of money, release of
property and other matters, and opinions of counsel as to the lien of the First
Mortgage Indenture and other matters. The Company also is required to furnish to
the Mortgage Trustees, not less frequently than annually, a certificate as to
the Company's compliance with all the conditions and covenants under the First
Mortgage Indenture, including the satisfaction of the maintenance and renewal,
and the debt retirement, provisions of the First Mortgage Indenture and an
opinion of counsel with respect to the lien of the First Mortgage Indenture.
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BOOK-ENTRY SYSTEM
Unless otherwise indicated in the applicable Prospectus Supplement, each
series of Senior Notes will initially be issued in the form of one or more
Global Securities, in registered form, without coupons. The Global Security will
be deposited with, or on behalf of, the Depository, and registered in the name
of the Depository or a nominee of the Depository.
So long as the Depository, or its nominee, is the registered owner of a
Global Security, such Depository or such nominee, as the case may be, will be
considered the owner of such Global Security for all purposes under the
Indenture, including any notices and voting. Except in the circumstances
described below, the owners of beneficial interests in a Global Security will
not be entitled to have Senior Notes registered in their names, will not receive
or be entitled to receive physical delivery of any such Senior Notes and will
not be considered the registered holder thereof under the Indenture.
Accordingly, each person holding a beneficial interest in a Global Security must
rely on the procedures of the Depository and, if such person is not a Direct
Participant (as defined herein), on procedures of the Direct Participant through
which such person holds its interest, to exercise any of the rights of a
registered owner of such Senior Note.
Global Securities may be exchanged in whole for certificated securities only
if (i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository for the Global Securities or the Depository has ceased to
be a clearing agency registered under the Exchange Act and, in either case, the
Company thereupon fails to appoint a successor depository within 90 days, (ii)
the Company, at its option, notifies the Trustee in writing that it elects to
cause the issuance of certificated securities or (iii) there shall have occurred
and be continuing an event of default with respect to the Senior Notes of any
series. In any such case, the Company will notify the Trustee in writing that,
upon surrender by the Direct Participants and Indirect Participants (as defined
below) of their interest in such Global Securities, certificated securities
representing Senior Notes will be issued to each person that such Direct
Participants and Indirect Participants and the Depository identify as being the
Beneficial Owner (as defined below) of such Senior Notes.
The following is based solely on information furnished by DTC:
DTC will act as Depository for the Global Securities. The Global Securities
will be issued as fully-registered securities registered in the name of Cede &
Co. (DTC's partnership nominee). One fully-registered Global Security
certificate will be issued for each issue of the Global Securities, each in the
aggregate principal amount of such issue 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 corporation"
registered pursuant to the provisions of Section 17A of the Exchange Act. 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 the Direct Participants,
the "Participants"). The rules applicable to DTC and its Participants are on
file with the Commission.
Purchases of Global Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for such purchases of
Global Securities on DTC's records. The ownership
19
<PAGE>
interest of each actual purchaser of each Global Security ("Beneficial Owner")
is in turn to be recorded on the Direct and Indirect 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 Direct or Indirect Participant through which the Beneficial
Owner entered into the transaction. Transfers of ownership interests in the
Global Securities 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 the Global
Securities, except in the event that use of the book-entry system for the Global
Securities is discontinued.
To facilitate subsequent transfers, all Global Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Global Securities 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 Global Securities; DTC's
records reflect only the identity of the Direct Participants to whose accounts
such Global Securities 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 Direct
Participants and Indirect 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.
If the Global Securities are redeemable, redemption notices shall be sent to
Cede & Co. If less than all of the Global Securities are being redeemed, DTC's
practice is to determine by lot the amount of the interest of each Direct
Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the Global
Securities. Under its usual procedures, DTC mails 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 whose
accounts the Global Securities are credited on the record date (identified in a
listing attached to the omnibus proxy).
Principal, interest and premium payments on the Global Securities will be
made to DTC in immediately available funds. DTC's practice is to credit Direct
Participants' accounts on the date on which interest is payable in accordance
with the respective holdings shown on DTC's records, unless DTC has reason to
believe that it will not receive payment on such 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, the Trustee, or the Company, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payment of principal, interest and premium on Senior Notes represented by Global
Securities to DTC is the responsibility of the Company and the Trustee.
Disbursement of such payments to Direct Participants shall be the responsibility
of DTC, and disbursement of such payments to the Beneficial Owners shall be the
responsibility of the Participants.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
The underwriters, dealers or agents of any Senior Notes may be Direct
Participants of DTC.
NONE OF THE COMPANY, THE TRUSTEE, OR ANY AGENT FOR PAYMENT ON OR
REGISTRATION OF TRANSFER OR EXCHANGE OF ANY GLOBAL SECURITY WILL HAVE ANY
RESPONSIBILITY OR LIABILITY FOR ANY ASPECT OF THE RECORDS RELATING TO OR
PAYMENTS MADE ON ACCOUNT OF BENEFICIAL INTERESTS IN SUCH GLOBAL SECURITY OR FOR
MAINTAINING, SUPERVISING OR REVIEWING ANY RECORDS RELATING TO SUCH BENEFICIAL
INTERESTS.
20
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Senior Notes (i) through underwriters or dealers;
(ii) directly to one or more institutional purchasers; or (iii) through agents.
The Prospectus Supplement with respect to each series of Senior Notes will set
forth the terms of the offering of such Senior Notes, including the name or
names of any underwriters, the purchase price of such Senior Notes and the
proceeds to the Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial offering price and
any discounts, commissions or concessions allowed or reallowed or paid to
dealers. Any initial offering price and any discounts, concessions or
commissions allowed or reallowed or paid to dealers may be changed from time to
time.
If underwriters are used in an offering, the Senior Notes 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 sale. The Senior
Notes may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more of
such firms. The specific managing underwriter or underwriters, if any, will be
named in the Prospectus Supplement relating to the particular Senior Notes
together with the members of the underwriting syndicate, if any. Unless
otherwise set forth in the Prospectus Supplement, the obligations of the
underwriters to purchase the particular Senior Notes will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all such
Senior Notes if any are purchased.
Senior Notes may be sold directly by the Company or through agents
designated by the Company from time to time. The Prospectus Supplement will set
forth the name of any agent involved in the offer or sale of the Senior Notes in
respect of which the Prospectus Supplement is delivered 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.
Any underwriters utilized may engage in stabilizing transactions and
syndicate covering transactions in accordance with Rule 104 under the Exchange
Act. Stabilizing transactions permit bids to purchase the underlying security so
long as the stabilizing bids do not exceed a specified maximum. Syndicate
covering transactions involve purchases of the Senior Notes in the open market
after the distribution has been completed in order to cover syndicate short
positions. Such stabilizing transactions and syndicate covering transactions may
cause the price of the Senior Notes to be higher than it would otherwise be in
the absence of such transactions.
Any underwriters, dealers or agents participating in the distribution of the
Senior Notes may be deemed to be underwriters and any discounts or commissions
received by them on the sale or resale of the Senior Notes may be deemed to be
underwriting discounts and commissions under the Securities Act. Agents, dealers
and underwriters may be entitled, under agreements entered into with the
Company, to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, and to contribution with respect
to payments which the agents, dealers or underwriters may be required to make in
respect thereof. Agents, dealers and underwriters may engage in transactions
with or perform services for the Company in the ordinary course of business.
Unless otherwise specified in a Prospectus Supplement, the Senior Notes will
not be listed on a national securities exchange. No assurance can be given that
any broker-dealer will make a market in any series of Senior Notes, and, in any
event, no assurance can be given as to the liquidity of the trading market for
any of the Senior Notes. The Prospectus Supplement will state, if known, whether
or not any broker-dealer intends to make a market in the Senior Notes. If no
such determination has been made, the Prospectus Supplement will so state.
21
<PAGE>
LEGAL OPINIONS
The validity of the Senior Notes will be passed upon for the Company by
Steven R. Sullivan, Esq., Vice President, General Counsel and Secretary of
Ameren. Certain legal matters will be passed upon for any underwriters, dealers,
purchasers or agents by Winthrop, Stimson, Putnam & Roberts, One Battery Park
Plaza, New York, New York 10004.
The statements as to matters of law or legal conclusions expressed under the
caption "Description of Senior Note Mortgage Bonds--Security" in this Prospectus
have been reviewed by Sorling, Northrup, Hanna, Cullen & Cochran, Ltd. and are
set forth herein in reliance upon the opinion of said firm and upon said firm's
authority as experts.
EXPERTS
The audited financial statements of the Company as of December 31, 1997 and
1996 and for each of the three years in the period ended December 31, 1997
included in the 1997 Form 10-K and incorporated by reference in this Prospectus
and elsewhere in the Registration Statement, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report with
respect thereto, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in giving said report. On June 12, 1998 Ameren
appointed PricewaterhouseCoopers LLP as its auditors and for its subsidiaries,
including the Company, for the year 1998.
22
<PAGE>
PART II. INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $ 51,516*
Illinois Commerce Commission Fee.................................. 218,000*
Printing of Registration Statement, Prospectus, Bonds, Notes,
etc............................................................. 12,000
Fees of Trustee................................................... 50,000
Fees of Mortgage Trustees......................................... 50,000
Fees of Rating Agencies........................................... 83,500
Fees of Accountants............................................... 8,500
Counsel fees...................................................... 50,000
Miscellaneous expenses............................................ 10,000
---------
Total............................................................. $ 533,516
</TABLE>
- ------------------------
* Actual expenses; all other expenses are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.75 of the Illinois Business Corporation Act provides that the
registrant may, and in some cases must, indemnify each director and each officer
of the registrant against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her by
reason of the fact that he or she is or was a director or officer of the
registrant, subject to certain conditions and limitations.
The registrant's Bylaws provide, in general, for mandatory indemnification
of directors and officers by the registrant to the fullest extent permitted by
law. In addition, certain officers of the Company have entered into
Indemnification Agreements with the Company pursuant to which the Company is
obligated to provide certain indemnification to such officers.
Officers and directors of the registrant are covered by insurance policies
purchased by the registrant under which they are insured (subject to exceptions
and limitations specified in the policies) against expenses and liabilities
arising out of actions, suits or proceedings to which they are parties by reason
of being or having been such directors or officers.
II-1
<PAGE>
ITEM 16. EXHIBITS
The following exhibits were previously filed with or incorporated by
reference into this registration statement or are filed herewith and made a part
hereof:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<S> <C>
1 Form of proposed Underwriting Agreement relating to the Senior Notes.
4.01 Indenture of Mortgage or Deed of Trust dated October 1, 1941 from the Company to U.S. Bank Trust
National Association and an individual co-trustee, as Mortgage Trustees (Exhibit 2.01 in File No.
2-60232). Supplemental Indentures dated, respectively, September 1, 1947, January 1, 1949, February
1, 1952, September 1, 1952, June 1, 1954, February 1, 1958, January 1, 1959, May 1, 1963, May 1,
1964, June 1, 1965, May 1, 1967, April 1, 1970, April 1, 1971, September 1, 1971, May 1, 1972,
December 1, 1973, March 1, 1974, April 1, 1975, October 1, 1976, November 1, 1976, October 1, 1978,
August 1, 1979, February 1, 1980, February 1, 1986, May 15, 1992, July 1, 1992, September 15, 1992,
April 1, 1993, June 1, 1995, March 15, 1997 and June 1, 1997 between the Company and the Mortgage
Trustees under the Indenture of Mortgage or Deed of Trust referred to above (Amended Exhibit 7(b) in
File No. 2-7341; Second Amended Exhibit 7.03 in File No. 2-7795; Second Amended Exhibit 4.07 in File
No. 2-9353; Amended Exhibit 4.05 in File No. 2-9802; Amended Exhibit 4.02 in File No. 2-10944;
Amended Exhibit 2.02 in File No. 2-13866; Amended Exhibit 2.02 in File No. 2-14656; Amended Exhibit
2.02 in File No. 2-21345; Amended Exhibit 2.02 in File No. 2-22326; Amended Exhibit 2.02 in File No.
2-23569; Amended Exhibit 2.02 in File No. 2-26284; Amended Exhibit 2.02 in File No. 2-36388; Amended
Exhibit 2.02 in File No. 2-39587; Amended Exhibit 2.02 in File No. 2-41468; Amended Exhibit 2.02 in
File No. 2-43912; Exhibit 2.03 in File No. 2-60232; Amended Exhibit 2.02 in File No. 2-50146; Amended
Exhibit 2.02 in File No. 2-52886; Second Amended Exhibit 2.04 in File No. 2-57141; Amended Exhibit
2.04 in File No. 2-57557; Amended Exhibit 2.06 in File No. 2-62564; Exhibit 2.02(a) in File No.
2-65914 and Exhibit 2.02(a) in File No. 2-66380; Amended Exhibit 4.02 in File No. 33-3188; Exhibit
4.02 to Form 8-K dated July 1, 1992; Exhibit 4.02 to Form 8-K dated September 15, 1992; Exhibit 4.02
to Form 8-K dated March 30, 1993; Exhibit 4.03 to Form 8-K dated June 5, 1995; Exhibit 4.03 to Form
8-K dated March 15, 1997; Exhibit 4.03 to Form 8-K dated June 1, 1997). Incorporated by reference.
4.02 Form of proposed Supplemental Indenture relating to the Senior Note Mortgage Bonds.
4.03 Form of proposed Indenture relating to the Senior Notes.
5 Opinion of Steven R. Sullivan, Esq., Vice President, General Counsel and Secretary of Ameren
Corporation, regarding legality.
12 Computation of Ratios of Earnings to Fixed Charges (Exhibit 12 to Form 10-K for the year ended
December 31, 1997 and Form 10-Q for the quarter ended September 30, 1998). Incorporated by reference.
23.01 Consent of Steven R. Sullivan, Esq., Vice President, General Counsel and Secretary of Ameren
Corporation (included in Exhibit 5).
23.02 Consent of Sorling, Northrup, Hanna, Cullen & Cochran, Ltd.
23.03 Consent of Arthur Andersen LLP.
24 Powers of Attorney. Previously filed.
25.01 Form T-1 and Form T-2 statements of eligibility of Mortgage Trustees. Previously filed.
25.02 Form T-1 statement of eligibility of Indenture Trustee.
</TABLE>
II-2
<PAGE>
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 Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent 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.
(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.
II-3
<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 this 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 3rd day of December, 1998.
<TABLE>
<S> <C> <C>
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
(Registrant)
By: /s/ GARY L. RAINWATER
------------------------------------
Gary L. Rainwater
President and Chief Executive Officer
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to this Registration Statement has been signed by
the following persons in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Principal Executive Officer:
/s/ GARY L. RAINWATER
- ---------------------------------- President and Chief Executive December 3, 1998
Gary L. Rainwater Officer and Director
Principal Financial Officer:
/s/ JERRE E. BIRDSONG
- ---------------------------------- Treasurer December 3, 1998
Jerre E. Birdsong
Principal Accounting Officer:
/s/ WARNER L. BAXTER
- ---------------------------------- Controller December 3, 1998
Warner L. Baxter
/s/ PAUL A. AGATHEN
- ---------------------------------- Director December 3, 1998
Paul A. Agathen
/s/ DONALD E. BRANDT
- ---------------------------------- Director December 3, 1998
Donald E. Brandt
- ---------------------------------- Director
John L. Heath
- ---------------------------------- Director
Robert W. Jackson
/s/ CHARLES W. MUELLER
- ---------------------------------- Director December 3, 1998
Charles W. Mueller
/s/ CHARLES J. SCHUKAI
- ---------------------------------- Director December 3, 1998
Charles J. Schukai
- ---------------------------------- Director
Thomas L. Shade
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<S> <C>
1 Form of proposed Underwriting Agreement relating to the Senior Notes.
4.01 Indenture of Mortgage or Deed of Trust dated October 1, 1941 from the Company to U.S. Bank Trust of
Illinois, National Association and an individual co-trustee, as Mortgage Trustees (Exhibit 2.01 in
File No. 2-60232). Supplemental Indentures dated, respectively, September 1, 1947, January 1, 1949,
February 1, 1952, September 1, 1952, June 1, 1954, February 1, 1958, January 1, 1959, May 1, 1963,
May 1, 1964, June 1, 1965, May 1, 1967, April 1, 1970, April 1, 1971, September 1, 1971, May 1, 1972,
December 1, 1973, March 1, 1974, April 1, 1975, October 1, 1976, November 1, 1976, October 1, 1978,
August 1, 1979, February 1, 1980, February 1, 1986, May 15, 1992, July 1, 1992, September 15, 1992,
April 1, 1993, June 1, 1995, March 15, 1997 and June 1, 1997 between the Company and the Mortgage
Trustees under the Indenture of Mortgage or Deed of Trust referred to above (Amended Exhibit 7(b) in
File No. 2-7341; Second Amended Exhibit 7.03 in File No. 2-7795; Second Amended Exhibit 4.07 in File
No. 2-9353; Amended Exhibit 4.05 in File No. 2-9802; Amended Exhibit 4.02 in File No. 2-10944;
Amended Exhibit 2.02 in File No. 2-13866; Amended Exhibit 2.02 in File No. 2-14656; Amended Exhibit
2.02 in File No. 2-21345; Amended Exhibit 2.02 in File No. 2-22326; Amended Exhibit 2.02 in File No.
2-23569; Amended Exhibit 2.02 in File No. 2-26284; Amended Exhibit 2.02 in File No. 2-36388; Amended
Exhibit 2.02 in File No. 2-39587; Amended Exhibit 2.02 in File No. 2-41468; Amended Exhibit 2.02 in
File No. 2-43912; Exhibit 2.03 in File No. 2-60232; Amended Exhibit 2.02 in File No. 2-50146; Amended
Exhibit 2.02 in File No. 2-52886; Second Amended Exhibit 2.04 in File No. 2-57141; Amended Exhibit
2.04 in File No. 2-57557; Amended Exhibit 2.06 in File No. 2-62564; Exhibit 2.02(a) in File No.
2-65914 and Exhibit 2.02(a) in File No. 2-66380; Amended Exhibit 4.02 in File No. 33-3188; Exhibit
4.02 to Form 8-K dated July 1, 1992; Exhibit 4.02 to Form 8-K dated September 15, 1992; Exhibit 4.02
to Form 8-K dated March 30, 1993; Exhibit 4.03 to Form 8-K dated June 5, 1995; Exhibit 4.03 to Form
8-K dated March 15, 1997; Exhibit 4.03 to Form 8-K dated June 1, 1997). Incorporated by reference.
4.02 Form of proposed Supplemental Indenture relating to the Senior Note Mortgage Bonds.
4.03 Form of proposed Indenture relating to the Senior Notes.
5 Opinion of Steven R. Sullivan, Esq., Vice President, General Counsel and Secretary of Ameren
Corporation, regarding legality.
12 Computation of Ratios of Earnings to Fixed Charges (Exhibit 12 to Form 10-K for the year ended
December 31, 1997 and Form 10-Q for the quarter ended September 30, 1998). Incorporated by reference.
23.01 Consent of Steven R. Sullivan, Esq., Vice President, General Counsel and Secretary of Ameren
Corporation (included in Exhibit 5).
23.02 Consent of Sorling, Northrup, Hanna, Cullen & Cochran, Ltd.
23.03 Consent of Arthur Andersen LLP.
24 Powers of Attorney. Previously filed.
25.01 Form T-1 and Form T-2 statements of eligibility of Mortgage Trustees. Previously filed.
25.02 Form T-1 statement of eligibility of Indenture Trustee.
</TABLE>
II-5
<PAGE>
Exhibit 1
$75,000,000
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
Senior Notes, ___% Due ____
UNDERWRITING AGREEMENT
----------------------
December __, 1998
LEHMAN BROTHERS INC.
3 World Financial Center
New York, New York 10285
Dear Ladies and Gentlemen:
The undersigned, Central Illinois Public Service Company, an Illinois
corporation (the "Company"), confirms its agreement with you in respect of the
sale by the Company and the purchase by you of $75,000,000 aggregate principal
amount of the Company's Senior Notes, ___% Due ____ (the "Notes"). The Notes
will be issued under and pursuant to the Indenture dated as of December 1, 1998
(as supplemented and amended from time to time pursuant to the terms thereof,
the "Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee"). The Notes will be secured by a series of the Company's First
Mortgage Bonds designated "First Mortgage Bonds, Senior Notes Series AA" (the
"First Mortgage Bonds") in the same aggregate principal amount and having the
same stated interest rate, maturity rate and other terms as the Notes they
secure, as described in the Final Prospectus (as defined in Section 1(d)
hereof). The First Mortgage Bonds will be issued under and pursuant to the
Company's Indenture of Mortgage or Deed of Trust, dated October 1, 1941,
executed by the Company to U.S. Bank Trust National Association, as successor
trustee (the "Corporate Trustee"), and F. Sgaraglino, as successor co-trustee
(the "Co-Trustee" and, together with the Corporate Trustee and the Trustee, the
"Trustees"), as heretofore amended and supplemented by various supplemental
indentures, and as to be further amended and supplemented by a supplemental
indenture dated December 1, 1998 (the "Supplemental Indenture"). The term
"Mortgage," as used herein, shall be deemed to refer to such Indenture of
Mortgage or Deed of Trust as so amended and supplemented.
<PAGE>
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and covenants and agrees with, you that:
(a) The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of Illinois and
has the necessary corporate power and authority to conduct the business
that it is described in the Final Prospectus as conducting and to own and
operate the properties owned and operated by it in such business; the
Company is not required by the nature of its business to be licensed or
qualified as a foreign corporation in any other state or jurisdiction;
except as set forth in the Final Prospectus, the Company has all material
licenses and approvals required at the date hereof to conduct its business,
and the Company has no majority-owned subsidiaries (within the meaning of
Rule 1-02(m) of Regulation S-X) with total assets or total liabilities in
excess of $100,000.
(b) 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 (Registration No. 333-18473), as amended by Pre-Effective
Amendment No. 1 thereto ("Registration Statement No. 333-18473"), on such
form for the registration under the Act of $170,000,000 aggregate principal
amount of the Company's first mortgage bonds and the Company's medium-term
notes, as series of first mortgage bonds, and the offering thereof from
time to time in accordance with Rule 415 (as defined in Section 1(d)
hereof), including a combined prospectus relating, pursuant to Rule 429, to
$200,000,000 aggregate principal amount of such first mortgage bonds and
medium-term notes. After Registration Statement No. 333-18473 was declared
effective by the Commission, and while $75,000,000 aggregate principal
amount of such first mortgage bonds and medium-term notes remained unsold
under Registration Statement No. 333-18473, the Company filed
Post-Effective Amendment No. 1 to Registration Statement No. 333-18473 in
order to facilitate the offering of one or more series of senior notes,
including the Notes, that would be secured by a related series of such
first mortgage bonds. As of the date of this Agreement, an aggregate of
$75,000,000 principal amount of such senior notes is available for issuance
and sale under the Registration Statement (as defined in Section 1(d)
hereof). The Registration Statement has been prepared by the Company under
the provisions of the Act and the rules and regulations promulgated by the
Commission thereunder (collectively referred to as the "Rules and
Regulations") and declared effective by the Commission. The Notes are
registered under the Act and 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.
Copies of the Registration Statement and any Preliminary Prospectus (as
defined in Section 1(d) hereof) have been delivered to you. The offering
of the Notes is a Delayed Offering and, although the Basic Prospectus may
not include all the information with respect to the Notes and the offering
and sale thereof required by the Act and the Rules and Regulations to be
included in the Final Prospectus, the Basic Prospectus includes all such
information required by the Act and the Rules and Regulations to be
included therein as of the Effective Date (as defined in Section 1(d)
hereof). The Company will file the Final Prospectus with the Commission
pursuant to Rule 424(b) and shall include therein all required information
with respect to the Notes and the offering
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and sale thereof and, except to the extent that you shall agree in writing
to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time (as defined in Section 1(d)
hereof) or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein.
(c) At the Effective Date, the Registration Statement, the Mortgage
and the Indenture fully complied, and, when the Final Prospectus is
delivered to you for your use in making confirmations of sales of the
Notes, the Final Prospectus (and any supplement thereto) will fully 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 and regulations promulgated by the Commission
thereunder; the documents incorporated or deemed to be incorporated by
reference in the Final Prospectus pursuant to Item 12 of Form S-3, on the
date filed with the Commission pursuant to the Exchange Act, fully complied
or will fully comply in all material respects with the applicable
requirements of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder; at the Effective Date, the Registration
Statement did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and, on the date it is delivered to
you for your use in making confirmations of sales of the Notes and on the
Closing Date (as defined in Section 3 hereof), the Final Prospectus (as it
may be supplemented) will not contain 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 in this Section 1(c) as to (i) the parts of
the Registration Statement that constitute the Statements of Eligibility
under the Trust Indenture Act of the Trustees on Form T-1 and Form T-2 or
(ii) the information relating to you contained in 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 you specifically for inclusion therein.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "Effective Date" shall mean the later of
(i) the date Registration Statement No. 333-18473 or the most recent
post-effective amendment thereto was or is declared effective by the
Commission under the Act and (ii) the date of the filing of the Company's
most recent Annual Report on Form 10-K with the Commission under the
Exchange Act. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Registration
Statement" shall mean Registration Statement No. 333-18473, as amended by
Post-Effective Amendment No. 1 thereto and any other amendments thereto as
may have been required to the date of this Agreement. "Basic Prospectus"
shall mean the prospectus contained in and forming a part of the
Registration Statement at the Effective Date, including all documents filed
by the Company with the Commission under the Exchange Act that are, or are
deemed to be, incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act at the Execution Time. "Preliminary Prospectus" shall
mean any
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preliminary prospectus supplement that describes the Notes and the offering
thereof and is used prior to the filing of the Final Prospectus, together
with the Basic Prospectus. "Final Prospectus" shall mean the prospectus
supplement that describes the Notes and the offering and sale thereof to be
filed with the Commission pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus. "Rule 415," "Rule 424," "Rule 429,"
"Regulation S-X" and "Regulation S-K" shall mean such Rules and Regulations
under the Act. A "Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 that 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. Any reference herein to the terms "amend," "amendment,"
"supplement" or terms of similar import with respect to the Registration
Statement or the Final Prospectus shall mean amendments or supplements to
the Registration Statement or the Final Prospectus, as the case may be, and
any documents filed by the Company with the Commission under the Exchange
Act that are, or are deemed to be, incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3 under the Act, in each case
filed after the Execution Time and prior to the completion of the
distribution of the Notes; provided, however, that any supplement to the
Final Prospectus filed with the Commission pursuant to Rule 424(b) with
respect to an offering of the Company's senior notes other than the Notes
shall not be deemed to be a supplement to, or a part of, the Final
Prospectus.
(e) The financial statements of the Company filed as part of or
incorporated by reference in the Registration Statement and the Final
Prospectus fairly present the financial condition of the Company as of the
dates indicated and the results of its operations and cash flows for the
periods therein specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise indicated therein.
Arthur Andersen LLP, who have certified or examined certain financial
statements incorporated by reference in the Registration Statement, are
independent public accountants as required by the Act and the Rules and
Regulations.
(f) The Indenture has been duly authorized by the Company and the
Indenture has been duly qualified under the Trust Indenture Act; and, when
the Indenture is duly executed and delivered by the Company at the Closing
Date, assuming due authorization, execution and delivery thereof by the
Trustee, the Indenture will constitute a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency or other applicable laws
affecting the enforcement of creditors' rights generally and except for the
availability of equitable remedies.
(g) The Notes have been duly authorized by the Company and, when the
Notes have been duly executed, authenticated, issued and delivered as
contemplated hereby and by the Indenture, will constitute valid and binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, except as limited by bankruptcy, insolvency or
other applicable laws affecting the
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enforcement of creditors' rights generally and except for the availability
of equitable remedies, and will be entitled to the security afforded by the
Indenture.
(h) The Mortgage has been duly authorized by the Company and the
Mortgage has been duly qualified under the Trust Indenture Act; and, when
the Supplemental Indenture is duly executed and delivered by the Company at
the Closing Date, assuming due authorization, execution and delivery
thereof by the Corporate Trustee and the Co-Trustee, the Mortgage will
constitute a valid and binding agreement of the Company enforceable against
the Company in accordance with its terms, except as enforcement of
provisions of the Mortgage may be limited by the laws of the State of
Illinois affecting the remedies for the enforcement of the security
provided for therein or as limited by bankruptcy, insolvency or other
applicable laws affecting the enforcement of creditors' rights generally
and except for the availability of equitable remedies.
(i) The First Mortgage Bonds have been duly authorized by the Company
and, when the First Mortgage Bonds have been duly executed, authenticated,
issued and delivered as contemplated by the Mortgage, will constitute valid
and binding obligations of the Company enforceable against the Company in
accordance with their respective terms, except as limited by bankruptcy,
insolvency or other applicable laws affecting the enforcement of creditors'
rights generally and except for the availability of equitable remedies,
will be entitled to the security afforded by the Mortgage and will be owned
and held by the Trustee, in trust, for the benefit of the holders of the
Notes.
(j) Except as set forth in or contemplated by the Final Prospectus,
since the most recent date as of which information is given in the Final
Prospectus, (i) the Company has not sustained any loss or interference
material to the Company with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance or from any labor
dispute or court or governmental action, order or decree, (ii) the Company
has not incurred any liabilities or obligations, direct or contingent, or
entered into any transactions, not in the ordinary course of business, that
are material to the Company, and (iii) there has not been any material
change in the stockholder's equity (except for regular quarterly
dividends), short-term debt or long-term debt of the Company, or any
material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or other), business,
net worth or results of operations of the Company.
(k) Except as set forth in the Final Prospectus, there is not pending
or, to the knowledge of the Company, threatened, any action, suit or
proceeding, to which the Company is a party, before or by any court or
governmental agency or body, that might result in any material adverse
change in the condition (financial or other), business, net worth or
results of operations of the Company, or might materially and adversely
affect the properties or assets of the Company.
(l) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated herein will
not conflict with or result in a breach or violation of any of the terms
and provisions of, or constitute a default under, (i) any contract,
indenture, mortgage, deed of trust, loan or note
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agreement, lease or other agreement or instrument to which the Company is a
party or by which it is bound and which is material to the Company or to
which any material property of the Company is subject, (ii) the Company's
articles of incorporation or by-laws, or (iii) any provision of any law
applicable to the Company or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company and that
is material to the Company or any of its material properties; the Illinois
Commerce Commission has issued its final order (the "ICC Order")
authorizing the issuance and sale of the Notes by the Company and the
issuance of the First Mortgage Bonds by the Company, the ICC Order is in
full force and effect and, after giving effect to the cancellation by the
Company prior to the Execution Time of the credit facilities entered into
by the Company in reliance on such order, is sufficient to authorize the
transactions contemplated by this Agreement; and no other consent,
approval, authorization or order of any court or governmental agency or
body is legally required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance and sale of
the Notes by the Company hereunder and the issuance of the First Mortgage
Bonds by the Company pursuant to the Mortgage, except such as may be
required under state securities laws and except such as has been obtained
under the Act and the Trust Indenture Act; and the Company has full power
and lawful authority to authorize, issue and sell the Notes on the terms
and conditions herein set forth and to authorize and issue the First
Mortgage Bonds pursuant to the Mortgage.
(m) This Agreement has been duly authorized, executed and delivered
by the Company.
(n) Except as set forth in the Final Prospectus, the Company (i) is
in compliance with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of it under applicable Environmental
Laws to conduct its business and (iii) is in compliance with all terms and
conditions of any such permit, license or approval, except as to clauses
(i), (ii) and (iii) where such non-compliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure
to comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material adverse
effect on the Company.
(o) Substantially all of the permanent, fixed properties of the
Company are owned in fee simple or are held under valid leases, in each
case subject only to the liens of current mortgages (including the lien of
the Mortgage) and "permitted encumbrances and liens" as defined in the
Mortgage. Such minor imperfections of title and encumbrances, if any,
which are not substantial in amount, do not materially detract from the
value or marketability of the properties subject thereto and do not
materially impair the title of the Company to its properties or its right
to use its properties in connection with its business as presently
conducted.
(p) The Indenture, the Notes, the Mortgage and the First Mortgage
Bonds conform in all material respects to the descriptions thereof in the
Final Prospectus.
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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 issue and sell to you, and you agree to purchase from the Company, the
Notes at _____% of the principal amount of the Notes [plus accrued interest
thereon from December ___, 1998 to the Closing Date].
3. TIME AND PLACE OF CLOSING; DELIVERY OF THE NOTES. Delivery of
the Notes shall be made at the offices of Winthrop, Stimson, Putnam & Roberts,
New York, New York, at 10:00 A.M., New York time, on December ___, 1998, or at
such other time on the same or such other day as shall be agreed upon by the
Company and you, against payment of the purchase price therefor by wire transfer
of immediately available funds. The hour and date of such delivery and payment
are herein called the "Closing Date."
The Notes shall be delivered to you in book-entry only form through
the facilities of The Depository Trust Company in New York, New York. The
certificate for the Notes shall be in the form of one typewritten global bond in
fully registered form, in the aggregate principal amount of the Notes, and
registered in the name of Cede & Co., as nominee of The Depository Trust
Company. The Company agrees to make the Notes available to you for checking not
later than 2:30 P.M., New York time, on the last business day preceding the
Closing Date at such place as may be agreed upon between you and the Company, or
at such other time or date as may be agreed upon between you and the Company.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with
you 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
Notes, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Company has furnished to 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 you of such timely filing. The
Company will promptly advise you (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) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Final Prospectus or for any
additional information, (iv) 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 (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the institution or threatening of any proceeding for that 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.
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(b) If, at any time when a prospectus relating to the Notes is
required to be delivered by you or any dealer 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, the Exchange Act or the
respective rules and regulations promulgated by the Commission 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 that 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 you an earning statement or statements of
the Company that will satisfy the provisions of Section 11(a) of the Act
and Rule 158 under the Act.
(d) The Company will furnish to you and your counsel, without charge,
copies of the Registration Statement in the form that it or the most recent
post-effective amendment thereto became effective and, so long as delivery
of a prospectus by you or any dealer is required by the Act, as many copies
of the Final Prospectus and any supplement thereto as you 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 you in qualifying
the Notes for offer and sale under the laws of such jurisdictions as you
may designate, and will maintain such qualifications in effect so long as
required for the distribution of the Notes.
(f) The Company will not, without your consent, offer, guarantee,
sell or contract to sell, or otherwise dispose of, by public offering, or
announce the public offering of, any debt securities other than the Notes
until the earlier to occur of (i) the Closing Date and (ii) the date of
termination of fixed price offering restrictions with respect to the Notes.
(g) The Company will apply the net proceeds from the sale of the
Notes to be sold by it hereunder for the purposes set forth in the Final
Prospectus.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. Your
obligation to purchase the Notes shall be subject to the accuracy of, and
compliance with, 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 certificate furnished by the
Company on the Closing Date, to the performance by the Company of its
obligations to be performed hereunder on or prior to the Closing Date and to the
following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been
filed in the manner and within the time period required by the applicable
paragraph of Rule 424(b) and no stop order suspending the effectiveness of
the Registration Statement
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shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to you the opinion of Steven R.
Sullivan, Esq., Vice President, General Counsel and Secretary of the
Company, dated the Closing Date, to the effect that:
(i) the Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of Illinois
and has the necessary corporate power and authority to own and operate
its properties and conduct the business it is described as conducting
in the Final Prospectus;
(ii) the Company has full power and authority to execute and
deliver, and perform its obligations under, the Mortgage and the
Indenture, and to issue and sell the Notes under the Indenture and to
issue the First Mortgage Bonds under the Mortgage, and each of the
Mortgage 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
of the Company enforceable against the Company in accordance with its
terms;
(iii) the Notes 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 will be entitled to the benefit of the security afforded by
the Indenture;
(iv) the First Mortgage Bonds have been duly authorized,
executed and issued by the Company and, assuming due authentication
thereof by the Corporate Trustee and upon delivery in accordance with
the terms of the Mortgage, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and will be entitled to the benefit of the
security afforded by the Mortgage;
(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 or the Final Prospectus that is not adequately disclosed
therein, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
the Final Prospectus, or to be filed as an exhibit, that 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;
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(vi) the Registration Statement has become, and on the Closing
Date is, effective under the Act; any required filing of any
Preliminary Prospectus and the Final Prospectus, and any supplement
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by the applicable paragraph of Rule
424(b); 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 best knowledge of such counsel, threatened
under Section 8 of the Act; at the Effective Date, the Registration
Statement and, at the time it was filed pursuant to Rule 424(b), the
Final Prospectus (except in each case for the financial statements and
other financial and statistical data contained or incorporated by
reference 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 and regulations promulgated by
the Commission thereunder; with respect to the documents filed by the
Company with the Commission pursuant to the Exchange Act, and
incorporated or deemed to be incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3, such documents, on the
date filed with the Commission, complied as to form in all material
respects with the applicable requirements of the Exchange Act and the
rules and regulations promulgated by the Commission thereunder; and
such counsel has no reason to believe that, at the Effective Date, the
Registration Statement contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Final Prospectus, at the time it was filed pursuant to Rule 424(b) and
at the Closing Date, included or includes an untrue statement of a
material fact or omitted 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 (except in
each case for the financial statements and other financial and
statistical data contained or incorporated by reference therein, as to
which such counsel need express no opinion);
(vii) the Company has full power and authority to execute and
deliver, and perform its obligations under, this Agreement and this
Agreement has been duly authorized, executed and delivered by the
Company;
(viii) the Illinois Commerce Commission has duly authorized the
issue and sale of the Notes by the Company and the issue of the First
Mortgage Bonds by the Company pursuant to the ICC Order; the ICC Order
is sufficient for the issue and sale of the Notes by the Company as
contemplated by this Agreement and the issue of the First Mortgage
Bonds by the Company as contemplated by the Mortgage and is in full
force and effect; and no other consent, approval, authorization or
order of any court or governmental agency or body (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 need express no
opinion) is legally required in connection with the execution,
delivery and performance of this Agreement, the Mortgage and the
Indenture by the Company, the authorization,
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issuance and sale of the Notes by the Company or the authorization and
issuance of the First Mortgage Bonds by the Company;
(ix) the execution, delivery and performance of the Mortgage,
Indenture, the First Mortgage Bonds, the Notes and this Agreement by
the Company, and the fulfillment of the terms thereof and hereof by
the Company, will not conflict or result in a breach of any of the
terms or provisions of, or constitute a default under any provision
of, (w) the Company's articles of incorporation or by-laws, (x) the
Mortgage or the Indenture, (y) any other 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 (z) any provision
of any law applicable to the Company 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 Notes and the Indenture and the
First Mortgage bonds and the Mortgage conform in all material respects
as to legal matters to the statements concerning them contained in the
Final Prospectus under "Description of Notes," "Description of Senior
Notes" and "Description of Senior Note Mortgage Bonds;"
(xi) the First Mortgage Bonds have been duly delivered,
pledged, assigned and transferred to the Trustee, and the Indenture
constitutes a direct and valid first lien upon such First Mortgage
Bonds; and
(xii) except as otherwise set forth in the Final Prospectus,
the Company has such valid franchises, certificates of convenience and
necessity, operating rights, licenses, permits, consents, approvals,
authorizations and orders of governmental bodies, political
subdivisions or regulatory authorities then obtainable, free from
unduly burdensome restrictions, as are necessary for the acquisition,
construction, ownership, maintenance and operation of the properties
now owned by it and the conduct of the business now carried on by it
as described in the Registration Statement and the Final Prospectus,
with minor exceptions that, in the opinion of such counsel, do not
interfere with the practical operation of the Company's business, and,
to the best of such counsel's knowledge, the Company is not in default
or violation thereof in any material respect and is carrying on its
business in substantial compliance therewith and with all applicable
federal, state and other laws and regulations that are material to the
Company.
Such counsel's opinion set forth in paragraphs (ii), (iii) and (iv)
above is subject to the qualifications that (i) the validity and the
enforceability of the Company's obligations under the Indenture and the Notes
and the Mortgage and the First Mortgage Bonds 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 (whether considered in a proceeding in equity or at law) and by an
implied covenant of good faith, reasonableness and fair dealing and (ii)
enforcement of provisions of the Mortgage may be
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limited by the laws of the State of Illinois affecting the remedies for the
security provided for therein, which laws do not, in such counsel's opinion,
make inadequate remedies necessary for the realization of the benefits of such
security.
Such opinion shall also state that such counsel has no knowledge of
any litigation, pending or threatened, that challenges the validity of the
Notes, the Indenture, the First Mortgage Bond, the Mortgage or this Agreement,
or which seeks to enjoin the performance of the Company's obligations hereunder
or thereunder or that 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 (i) as to factual
matters, upon certificates or written statements from appropriate
representatives of the Company or upon certificates of public officials, (ii) as
to matters involving the application of the laws of the State of Illinois, upon
an opinion of Sorling, Northrup, Hanna, Cullen and Cochran, Ltd. or other
Illinois counsel reasonably satisfactory to you, provided that such opinion
states that you and Winthrop, Stimson, Putnam & Roberts, your counsel, may rely
on such opinion as if it were addressed to them and (iii) as to matters
involving the application of the laws of the State of New York, upon the opinion
of Winthrop, Stimson, Putnam & Roberts, your counsel, delivered to you pursuant
to Section 5(d) hereof. 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 you
and is rendered solely for your benefit and may not be relied upon in any manner
by any other person (other than Winthrop, Stimson, Putnam & Roberts, your
counsel, to the extent stated in its opinion to you on the Closing Date) without
such counsel's prior written consent.
(c) The Company shall have furnished to you the opinion of Sorling,
Northrup, Hanna, Cullen and Cochran, Ltd., Illinois counsel for the Company,
dated the Closing Date, to the effect that:
(i) the statements in the Final Prospectus that are stated
therein to have been made on the authority of such counsel have been
reviewed by such counsel and, as to matters of law and legal
conclusions, are correct;
(ii) the Company has good and sufficient title to all or
substantially all the permanent fixed properties and the material
franchises, permits and licenses now owned by it, including those
described or referred to in the Final Prospectus, except as may be
otherwise indicated therein, and no notice has been given to the
Company by any governmental authority of any proceeding to condemn,
purchase or otherwise acquire any material properties of the Company
and, so far as such counsel knows, no such proceeding is contemplated;
12
<PAGE>
(iii) the Mortgage has been duly filed for recording and
recorded in each county in the State of Illinois in which any
permanent fixed property described in and conveyed by the Mortgage and
now owned by the Company is located, and constitutes a legally valid
and direct enforceable first mortgage lien (except as federal
bankruptcy laws may affect the validity of the lien of the Mortgage
with respect to proceeds, products, rents, issues or profits of the
property subject to such lien realized and additional property
acquired within 90 days prior to and after the commencement of a case
under such laws and except as enforcement of provisions thereof may be
limited by the laws of the State of Illinois affecting the remedies
for the enforcement of the security provided for in the Mortgage,
which laws do not, in the opinion of such counsel, make such remedies
inadequate for realization of the benefits of such security, or
limited by bankruptcy or insolvency laws or other applicable laws
affecting the enforcement of creditors' rights generally or by general
principles of equity) upon substantially all of the Company's fixed
properties and franchises used or useful in its public utility
businesses free from all prior or equal ranking liens, charges or
encumbrances, subject only to permitted encumbrances and liens, as
defined in the Mortgage, and to the provisions contained in the
Mortgage for the release, or substitution and release, of property
from the lien thereof;
(iv) no recordation, registration or filing of the Indenture
or any supplemental indenture or instrument of further assurance is
necessary in the State of Illinois to make effective the security
interest intended to be created by the Indenture with respect to the
First Mortgage Bonds; and
(v) substantially all physical properties and franchises used
or useful in the Company's public utility businesses (other than those
of the character not subject to the lien of the Mortgage) and now
owned by the Company are subject to the lien of the Mortgage, subject
only to permitted encumbrances and liens, as defined in the Mortgage,
and to the provisions contained in the Mortgage for the release, or
substitution and release, of property from the lien thereof. All
physical properties and franchises used or useful in the Company's
public utility businesses (other than those of the character not
subject to the lien of the Mortgage) hereafter acquired by the Company
and situated in counties in the State of Illinois in which the
Mortgage shall be of record will, upon such acquisition, become
subject to the lien of the Mortgage, subject, however, to such
encumbrances and liens as are permitted thereby.
(d) You shall have received from Winthrop, Stimson, Putnam & Roberts,
your counsel, an opinion, dated the Closing Date, with respect to the issuance
and sale of the Notes, this Agreement, the Indenture, the Registration
Statement, the Final Prospectus (and any supplement thereto) and other related
matters as you 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.
(e) The Company shall have furnished to you a certificate of the
Company, signed by the President and Chief Executive Officer of the Company and
the principal financial
13
<PAGE>
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) 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 best of their knowledge,
threatened;
(ii) since the most recent date as of which information is
given in the Final Prospectus (and any supplement thereto), there has
been no material change in the stockholder's equity (except for
regular quarterly dividends), short-term debt or long-term debt of
the Company or any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or other), business, net worth or results of operations
of the Company, except as set forth in or contemplated by the Final
Prospectus (and any supplement thereto); and
(iii) the other representations and warranties of the Company
in this Agreement are true and correct 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.
(f) At the Execution Time, Arthur Andersen LLP and
PricewaterhouseCoopers LLP shall have furnished to you letters, dated the
Execution Time, in form and substance satisfactory to you stating in effect
that:
(i) they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable published
rules and regulations thereunder;
(ii) with respect to Arthur Andersen LLP, in their opinion,
the audited financial statements and financial statement schedules
incorporated in the Registration Statement and the Final Prospectus
and audited by them comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act
and the related published rules and regulations;
(iii) with respect to PricewaterhouseCoopers LLP, 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 by reference in the Registration Statement and the Final
Prospectus, inquiries of officials of the Company responsible for
financial and accounting matters and reading the minutes of the
meetings of the stockholder, directors and principal committees of the
Company, nothing came to their attention which caused them to believe
that:
14
<PAGE>
(A) any unaudited financial statements incorporated by
reference in the Registration Statement and the Final Prospectus do not
comply as to form in all material respects with the 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;
(B) 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 by reference in the
Registration Statement and the Final Prospectus, there were any changes, at
the date of the latest available financial statements of the Company and at
a subsequent date not more 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 consolidated balance
sheet included or incorporated by reference in the Registration Statement
and the Final Prospectus except in all instances for changes that the
Registration Statement or the Final Prospectus discloses have occurred or
may occur or as may result from declarations of dividends, the repayment or
redemption of long-term debt, the amortization of premium or discount on
long-term debt, or any increases in long-term debt in respect of previously
issued pollution control, solid waste disposal or industrial development
revenue bonds, or, for the twelve-month period ended as of the date of the
latest available financial statements of the Company and at a subsequent
date not more than five days prior to the date of the letter there were any
decreases in excess of 3%, as compared with the comparable period of the
preceding year, in operating revenues, operating income, net income or
ratio of earnings to fixed charges, except in all instances for decreases
that the Registration Statement or the Final Prospectus 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 you; or
(C) the amounts included in any unaudited "capsule"
information included or incorporated by reference 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; and
(iv) they have, as applicable, 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 or
incorporated by reference in the Registration Statement and the Final
Prospectus, as reasonably requested by you, agrees with the accounting
records of the Company, excluding any questions of legal
interpretation.
15
<PAGE>
References to the Final Prospectus in this Section 5(f) include any
supplement thereto at the date of the letter.
In addition, at the Closing Date, PricewaterhouseCoopers LLP shall
have furnished to you a letter, dated the Closing Date, in form and substance
satisfactory to you, to the effect set forth above as applicable to them.
(g) 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 Section 5(f) hereof 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 your judgment, so material
and adverse as to make it impracticable or inadvisable to proceed with the
offering or delivery of the Notes.
(h) On or prior to the Closing Date, you shall have received
satisfactory evidence that the Notes have received ratings of [A+] or
higher by Standard & Poor's and [A3] or higher by Moody's Investors
Service, Inc., and that such ratings are in effect on the Closing Date.
(i) 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
purposes of Rule 436(g) promulgated by the Commission 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.
(j) The ICC Order shall be in full force and effect at the Closing
Date.
(k) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request, including without limitation evidence of the
cancellation of the credit facilities referred to in Section 1(l) hereof.
If any of the conditions specified in this Section 5 shall not have
been fulfilled 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
reasonably satisfactory in form and substance to you and your counsel, this
Agreement and all of your obligations hereunder may be canceled by you at, or at
any time prior to, the Closing Date. Notice of such cancellation shall be given
to the Company in writing (by facsimile or otherwise) or by telephone confirmed
in writing. Any such cancellation shall be without liability of either party to
the other party except as otherwise provided in Section 6 hereof and except for
any liability under Section 7 hereof.
6. EXPENSES. The Company will, except as herein provided, pay all
fees, expenses and taxes (except transfer taxes) in connection with (i) the
preparation and filing of the Registration Statement and any post-effective
amendment thereto, (ii) the printing, issuance and delivery of the Notes and the
First Mortgage Bonds and the preparation, execution, printing and
16
<PAGE>
recordation of the Supplemental Indenture, (iii) legal counsel relating to the
qualification of the Notes under the securities or blue sky laws of various
jurisdictions in an amount not to exceed $3,500, (iv) the printing and delivery
to you of reasonable quantities of copies of the Registration Statement, the
preliminary (and any supplemental) blue sky survey, any Preliminary Prospectus
and the Final Prospectus and any amendment or supplement thereto, (v) the rating
of the Notes by one or more nationally recognized statistical rating agencies,
and (vi) filings or other notices (if any) with or to, as the case may be, the
National Association of Securities Dealers, Inc. in connection with its review
of the terms of the offering. Except as provided above, the Company shall not
be required to pay any of your expenses, except that, if the sale of the Notes
provided for herein is not consummated because any condition to your obligation
set forth in Section 5 hereof is not satisfied, because of any termination
pursuant to Section 8 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 you, the Company will
reimburse you upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by you in
connection with the proposed purchase and sale of the Notes.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold you harmless, your
directors, officers, employees and agents and each person who controls you
within the meaning of Section 15 of the Act or Section 20 of 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 the Registration Statement, 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 relating to you furnished to the Company by you specifically
for inclusion therein. This indemnity agreement will be in addition to any
liability that the Company may otherwise have.
(b) You agree to indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement, and
each person who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to you, but only with reference to
written information relating to you furnished to the Company by you
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
that you may
17
<PAGE>
otherwise have. The Company acknowledges for purposes of this Agreement
that the statements set forth in the second and third paragraphs under the
caption "Underwriting" in the Final Prospectus constitute the only
information relating to you furnished in writing by you for inclusion in
the documents referred to in the foregoing indemnity, and you 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 Section 7(a) or (b) hereof
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 Section 7 (a) or (b) hereof.
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 any such 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 or
other indemnified parties that 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 any 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.
(d) In the event that the indemnity provided in Section 7(a) or (b)
hereof is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and you 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 you
18
<PAGE>
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by you from the offering and sale of
the Notes; PROVIDED, HOWEVER, that in no case shall you be responsible for
any amount in excess of the underwriting discount applicable to the Notes
purchased by you hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and you 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 you in
connection with the statements or omissions that 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 you shall be
deemed to be equal to the total underwriting discount, 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 you. The Company and you
agree that it would not be just and equitable if contribution pursuant to
this Section 7(d) were determined by pro rata allocation or any other
method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
Section 7(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 you within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and each
director, officer, employee and agent thereof shall have the same rights to
contribution as you, and each person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of 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 Section 7(d).
8. TERMINATION. This Agreement shall be subject to termination in
your absolute discretion, by notice given to the Company at any time prior to
delivery of and payment for the Notes, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, in
either case, by The New York Stock Exchange, Inc., the Commission or other
governmental authority; (ii) a banking moratorium shall have been declared by
federal, 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 your judgment,
impracticable or inadvisable to proceed with the offering or delivery of the
Notes. Any such termination shall be without liability of either party to the
other party except as otherwise provided in Section 6 hereof and except for any
liability under Section 7 hereof.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you 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 you or the Company or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and shall survive
19
<PAGE>
delivery of and payment for the Notes. The provisions of Sections 6 and 7
hereof shall survive the termination or cancellation of this Agreement.
10. NOTICES. All communications hereunder shall be in writing and
effective only on receipt, and, if sent to you, will be mailed, delivered or
electronically transmitted and confirmed, to Lehman Brothers Inc., 3 World
Financial Center, New York, New York 10285; attention of James Penrose, Managing
Director; or, if sent to the Company, shall be mailed, delivered or
electronically transmitted and confirmed, to Central Illinois Public Service
Company, c/o Ameren Services Company, 1901 Chouteau Avenue, St. Louis, Missouri
63103; attention of Donald E. Brandt, Senior Vice President.
11. 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
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 Notes from you shall be
deemed to be a successor by reason merely of such purchase.
12. 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, and construed in accordance with, the law of the State
of New York.
13. 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.
20
<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 between you
and the Company.
Very truly yours,
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
By:
-------------------------------
Title:
CONFIRMED AND ACCEPTED
as of the date first above written:
LEHMAN BROTHERS INC.
By:
------------------------------
Title:
21
<PAGE>
Exhibit 4.02
================================================================================
Executed in 100 Counterparts, No. ___.
SUPPLEMENTAL INDENTURE
DATED DECEMBER 1, 1998
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
TO
U.S. BANK TRUST NATIONAL ASSOCIATION
AND F. SGARAGLINO,
AS TRUSTEES
--------------------
(SUPPLEMENTAL TO THE INDENTURE OF MORTGAGE OR DEED OF TRUST DATED OCTOBER
1, 1941, EXECUTED BY CENTRAL ILLINOIS PUBLIC SERVICE COMPANY TO CONTINENTAL
ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO AND EDMOND B. STOFFT,
AS TRUSTEES)
--------------------
(PROVIDING FOR FIRST MORTGAGE BONDS,
SENIOR NOTES SERIES AA)
================================================================================
This instrument was prepared by Steven R. Sullivan, Vice President,
General Counsel and Secretary of Central Illinois Public Service
Company, 1901 Chouteau Avenue, St. Louis, Missouri 63103.
<PAGE>
THIS SUPPLEMENTAL INDENTURE, dated December 1, 1998, made and entered
into by and between CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, a corporation
organized and existing under the laws of the State of Illinois (hereinafter
commonly referred to as the "Company"), and U.S. BANK TRUST NATIONAL ASSOCIATION
(formerly First Trust National Association, formerly First Trust of Illinois,
National Association, successor trustee to Bank of America Illinois, formerly
Continental Bank, formerly Continental Bank, National Association and formerly
Continental Illinois National Bank and Trust Company of Chicago), a national
banking association having its office or place of business in the City of
Chicago, Cook County, State of Illinois (hereinafter commonly referred to as the
"Trustee"), and F. Sgaraglino (successor Co-Trustee), of the City of Chicago,
Cook County, State of Illinois, as Trustees under the Indenture of Mortgage or
Deed of Trust dated October 1, 1941, heretofore executed and delivered by the
Company to Continental Illinois National Bank and Trust Company of Chicago and
Edmond B. Stofft, as Trustees, as amended by the Supplemental Indentures dated,
respectively, September 1, 1947, January 1, 1949, February 1, 1952, September 1,
1952, June 1, 1954, February 1, 1958, January 1, 1959, May 1, 1963, May 1, 1964,
June 1, 1965, May 1, 1967, April 1, 1970, April 1, 1971, September 1, 1971, May
1, 1972, December 1, 1973, March 1, 1974, April 1, 1975, October 1, 1976,
November 1, 1976, October 1, 1978, August 1, 1979, February 1, 1980, February 1,
1986, May 15, 1992, July 1, 1992, September 15, 1992, April 1, 1993, June 1,
1995, March 15, 1997 and June 1, 1997, heretofore executed and delivered by the
Company to the Trustees under said Indenture of Mortgage or Deed of Trust dated
October 1, 1941; said Indenture of Mortgage or Deed of Trust dated October 1,
1941, as amended by said Supplemental Indentures, being hereinafter sometimes
referred to as the "Indenture"; and said U.S. Bank Trust National Association
and F. Sgaraglino, as such Trustees, being hereinafter sometimes referred to as
the "Trustees" or the "Trustees under the Indenture";
WITNESSETH:
WHEREAS, the Company has entered into an Indenture dated as of
December 1, 1998 (the "Senior Note Indenture") with The Bank of New York, as
trustee (the "Senior Note Trustee") providing for the issuance of senior notes
thereunder (the "Senior Notes"); and
WHEREAS, the Company has determined, by resolutions duly adopted by
its Board of Directors and/or the Executive Committee thereof, pursuant to the
Senior Note Indenture, as security for the Senior Notes to be issued thereunder,
to issue to the Senior Note Trustee bonds of an additional series under and to
be secured by the Indenture, as hereby amended, to be known and designated as
First Mortgage Bonds, Senior Notes Series AA (hereinafter sometimes referred to
as the "bonds of Senior Notes Series AA" or the "bonds of said Series"), and the
bonds of said Series shall be authorized, authenticated and issued only as
registered bonds without coupons, and to execute and deliver this supplemental
indenture, pursuant to the provisions of Article I, as amended, Section 6 of
Article II and Article XVI of the Indenture, for the purpose of (1) creating and
authorizing not to exceed $75,000,000 aggregate principal amount of bonds of
Senior Notes Series AA and setting forth the form, terms, provisions and
characteristics thereof, (2) modifying or amending certain provisions of the
Indenture in the particulars and to the extent hereinafter specifically
provided, and (3) specifically describing and conveying to the Trustees, upon
the trusts and for the purposes of the Indenture, as hereby amended, certain
additional properties which the Company has constructed or otherwise acquired
subsequent to May 1, 1997, except property of the
2
<PAGE>
character expressly excepted or excluded from the lien of the Indenture by the
terms thereof, and which are owned by the Company at the date of the execution
hereof and are subject in any event to the lien and effect of the Indenture; and
WHEREAS, the bonds of Senior Notes Series AA shall be issued to the
Senior Note Trustee in connection with the issuance by the Company of its Senior
Notes, ___% Due ____ (the "_____ Senior Notes"); and
WHEREAS, the execution and delivery of the Company of this
supplemental indenture have been duly authorized by the Board of Directors of
the Company and/or the Executive Committee thereof; and the Company has
requested, and hereby requests, the Trustees to enter into and join with the
Company in the execution and delivery of this supplemental indenture; and
WHEREAS, the bonds of Senior Notes Series AA are to be authorized,
authenticated and issued only in the form of registered bonds without coupons,
and each of the bonds of Senior Notes Series AA and the certificate of the
Trustee thereon shall be substantially in the following form, to wit:
[FORM OF BOND]
No. $______________
Illinois Commerce Commission ID Number 5994
NOTWITHSTANDING ANY PROVISIONS HEREOF OR IN THE INDENTURE
THIS BOND IS NOT ASSIGNABLE OR TRANSFERABLE EXCEPT AS
PERMITTED OR REQUIRED BY SECTION 4.04 OF THE INDENTURE,
DATED AS OF DECEMBER 1, 1998, BETWEEN CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
AND THE BANK OF NEW YORK, AS TRUSTEE.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
First Mortgage Bond, Senior Notes Series AA
Original
Issue Dated Maturity
Date Date Date CUSIP
-------- ----- -------- -------
* *
Interest
Interest Payment Record
Rate Dates Dates
-------- -------- ------
%
3
<PAGE>
REGISTERED OWNER _____________________________________
PRINCIPAL AMOUNT _____________________________ DOLLARS
================================================================================
* To be completed in accordance with the terms of Section 1 of Article I
hereof.
Central Illinois Public Service Company, an Illinois corporation
(hereinafter referred to as the "Company"), for value received, hereby promises
to pay to the Registered Owner specified above, as trustee under the Senior Note
Indenture hereinafter referred to, or registered assigns, the Principal Amount
specified above on the Maturity Date specified above, and to pay to the
Registered Owner interest on said sum from the Dated Date hereof, at the
Interest Rate specified above, payable half-yearly on the Interest Payment Dates
specified above, until said principal sum is paid. The interest so payable on
any Interest Payment Date will be paid, subject to certain exceptions provided
in the Supplemental Indenture dated December 1, 1998, hereinafter referred to,
to the Registered Owner at the close of business of the Trustee on the
immediately preceding Record Date. Both the principal of and the interest on
this bond shall be payable in immediately available funds at the office or
agency of the Senior Note Trustee hereinafter referred to, in any coin or
currency of the United States of America which at the time of payment is legal
tender for public and private debts.
Under an Indenture dated as of December 1, 1998 (the "Senior Note
Indenture") between the Company and The Bank of New York, as trustee (the
"Senior Note Trustee"), the Company will issue, concurrently with the issuance
of this bond, an issue of Notes under the Senior Note Indenture entitled "Senior
Notes, ___% Due ____ (the "____ Senior Notes"). Pursuant to Article IV of the
Senior Note Indenture, this bond is issued to the Senior Note Trustee to secure
any and all obligations of the Company under the ____ Senior Notes and any other
series of senior notes from time to time outstanding under the Senior Note
Indenture. Payment of principal of, or premium, if any or interest on, the
____Senior Notes shall constitute payments on this bond as further provided
herein and in the Supplemental Indenture dated December 1, 1998 pursuant to
which this bond has been issued (the "Supplemental Indenture").
Upon any payment of the principal of, premium, if any, and interest
on, all or any portion of the ____ Senior Notes, whether at maturity or prior to
maturity by redemption or otherwise or upon provision for the payment thereof
having been made in accordance with Section 5.01(a) of the Senior Note
Indenture, bonds of Senior Notes Series AA in a principal amount equal to the
principal amount of such ____ Senior Notes and having both a corresponding
maturity date and interest rate shall, to the extent of such payment of
principal, premium, if any, and interest, be deemed paid and the obligation of
the Company thereunder to make such payment shall be discharged to such extent
and, in the case of the payment of principal (and premium, if any), such bonds
of said series shall be surrendered to the Company for cancellation as provided
in Section 4.08 of the Senior Note Indenture. The Trustee (as hereinafter
defined) may at anytime and all times conclusively assume that the obligation of
the Company to make payments with respect to the principal of and premium, if
any, and interest on the ___ Senior Notes, so far as such payments at the time
have become due, has been fully satisfied and discharged pursuant to the
foregoing sentence unless and until the Trustee shall have received a written
notice from the Senior Note Trustee signed by one of its officers stating (i)
that timely payment of principal, or premium or
4
<PAGE>
interest on, the ____ Senior Notes has not been made, (ii) that the Company is
in arrears as to the payments required to be made by it to the Senior Note
Trustee pursuant to the Senior Note Indenture, and (iii) the amount of the
arrearage.
5
<PAGE>
For purposes of Section 4.09 of the Senior Note Indenture, this bond
shall be deemed to be the "Related Series of Senior Note First Mortgage Bonds"
in respect of the ____ Senior Notes.
This bond is one of the bonds issued and to be issued from time to
time under and in accordance with and all secured by the indenture of mortgage
or deed of trust dated October 1, 1941, executed and delivered by the Company to
U.S. Bank Trust National Association (formerly First Trust National Association,
formerly First Trust of Illinois, National Association, successor trustee to
Bank of America Illinois, formerly Continental Bank, formerly Continental Bank,
National Association and formerly Continental Illinois National Bank and Trust
Company of Chicago and hereinafter referred to as the "Trustee") and F.
Sgaraglino, as Trustees, and the various indentures supplemental thereto,
including the Supplemental Indenture pursuant to which $75,000,000 in aggregate
principal amount of the First Mortgage Bonds, Senior Notes Series AA are
authorized, each executed and delivered by the Company to the Trustees under
said indenture of mortgage or deed of trust dated October 1, 1941, prior to the
authentication of this bond (said indenture of mortgage or deed of trust and
said supplemental indentures being hereinafter referred to, collectively, as the
"Indenture"); and said U.S. Bank Trust National Association and F. Sgaraglino
(successor Co-Trustee) being now the Trustees under the Indenture. Reference to
the Indenture and to all supplemental indentures, if any, hereafter executed
pursuant to the Indenture is hereby made for a description of the property
mortgaged and pledged, the nature and extent of the security and the rights of
the holders and Registered Owners of said bonds and of the Trustees and of the
Company in respect of such security. By the terms of the Indenture the bonds to
be secured thereby are issuable in series, which may vary as to date, amount,
date of maturity, rate of interest, redemption provisions, medium of payment and
in other respects as in the Indenture provided.
This bond is not redeemable except on the respective dates, in the
respective principal amounts and for the respective redemption prices that
correspond to the redemption dates for, the principal amounts to be redeemed of,
and the redemption prices for, the ___ Senior Notes, and except upon written
demand of the Senior Note Trustee following the occurrence of an Event of
Default under the Senior Note Indenture and the acceleration of the senior
notes, as provided in Section 8.01 of the Senior Note Indenture.
In case of certain events of default specified in the Indenture, the
principal of this bond may be declared or may become due and payable in the
manner and with the effect provided in the Indenture. No recourse shall be had
for the payment of the principal of or interest on this bond, or for any claim
based hereon, or otherwise in respect hereof or of the Indenture or any
indenture supplemental thereto, to or against any incorporator, stockholder,
officer or director, past, present or future, of the Company, or of any
predecessor or successor corporation, either directly or through the Company, or
such predecessor or successor corporation, under any constitution or statute or
rule of law, or by the enforcement of any assessment, penalty, or otherwise, all
such liability of incorporators, stockholders, directors and officers being
waived and released by the Registered Owner hereof by the acceptance of this
bond and being likewise waived and released by the terms of the Indenture.
6
<PAGE>
This bond shall not be assignable or transferable except as permitted
or required by Section 4.04 of the Senior Note Indenture. This bond is
exchangeable by the Registered Owner hereof, in person or by attorney duly
authorized, at the principal office or place of business of the Trustee under
the Indenture, upon the surrender and cancellation of this bond and the payment
of any stamp tax or other governmental charge, and upon any such exchange a new
registered bond or bonds without coupons, of the same series and maturity and
for the same aggregate principal amount, will be issued in exchange heretofore;
provided, that the Company shall not be required to exchange any bonds of Senior
Notes Series AA for a period of ten (10) days next preceding an Interest Payment
Date with respect to bonds of said Series.
As provided in Section 4.11 of the Senior Note Indenture, from and
after the Release Date (as defined in the Senior Note Indenture), the
obligations of the Company with respect to this bond shall be deemed to be
satisfied and discharged, this bond shall cease to secure in any manner any
senior notes outstanding under the Senior Note Indenture, and, pursuant to
Section 4.08 of the Senior Note Indenture, the Senior Note Trustee shall
forthwith deliver this bond to the Company for cancellation.
This bond shall not be valid or become obligatory for any purpose
unless and until it shall have been authenticated by the execution by the
Trustee or its successor in trust under the Indenture of the Trustee's
Certificate endorsed hereon.
IN WITNESS WHEREOF, Central Illinois Public Service Company has caused
this bond to be executed in its name by the manual or facsimile signature of its
President or one of its Vice-Presidents, and its corporate seal or a facsimile
thereof to be affixed or imprinted hereon and attested by the manual or
facsimile signature of its Secretary or one of its Assistant Secretaries.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
By
------------------------------------
President
ATTEST:
By
-----------------------------
Secretary
7
<PAGE>
This bond is one of the bonds of the series designated therein,
described in the within mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By
----------------------------------
Authorized Officer
[END OF FORM OF BOND]
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) duly paid by the Trustees to the Company, and of other good and
valuable considerations, the receipt whereof is hereby acknowledged, and for the
purpose of further assuring to the Trustees under the Indenture their title to,
or lien upon, the property hereinafter described, under and pursuant to the
terms of the Indenture, as hereby amended, and for the purpose of further
securing the due and punctual payment of the principal of and interest and the
premium, if any, on all bonds which have been heretofore or shall be hereafter
issued under the Indenture and indentures supplemental thereto and which shall
be at any time outstanding thereunder and secured thereby and $75,000,000
principal amount of the ____ Senior Notes, and for the purpose of securing the
faithful performance and observance of all the covenants and conditions set
forth in the Indenture and/or in any indenture supplemental thereto, the Company
has given, granted, bargained, sold, transferred, assigned, pledged, mortgaged,
warranted the title to and conveyed, and by these presents does give, grant,
bargain, sell, transfer, assign, pledge, mortgage, warrant the title to and
convey unto U.S. BANK TRUST NATIONAL ASSOCIATION and F. SGARAGLINO, as Trustees
under the Indenture as therein provided, and their successors in the trusts
thereby created, and to their assigns, all the right, title and interest of the
Company in and to any and all premises, plants, property, leases and leaseholds,
franchises, permits, rights and powers, of every kind and description, real and
personal, which have been acquired by the Company through construction,
purchase, consolidation or merger, or otherwise, subsequent to May 1, 1997, and
which are owned by the Company at the date of the execution hereof, together
with the rents, issues, products and profits therefrom, excepting, however, and
there is hereby expressly reserved and excluded from the lien and effect of the
Indenture and of this supplemental indenture, all right, title and interest of
the Company, now owned, in and to (a) all cash, bonds, shares of stock,
obligations and other securities not deposited with the Trustee or Trustees
under the Indenture, and (b) all accounts and bills receivable, judgments (other
than for the recovery of real property or establishing a lien or charge thereon
or right therein) and chooses in action not specifically assigned to and pledged
with the Trustee or Trustees under the Indenture, and (c) all personal property
acquired or manufactured by the Company for sale, lease, rental or consumption
in the ordinary course of business, and (d) the last day of each of the demised
terms created by any lease of property leased to the Company and under each and
every renewal of any such lease, the last day of each and every such demised
term being hereby expressly reserved to and by the Company, and (e) all gas, oil
and other
8
<PAGE>
minerals now or hereafter existing upon, within or under any real estate of the
Company subject to, or hereby subjected to, the lien of the Indenture.
Without in any way limiting or restricting the generality of the
foregoing description or the foregoing exceptions and reservations, the Company
hereby expressly gives, grants, bargains, sells, transfers, assigns, pledges,
mortgages, warrants the title to and conveys unto said U.S. BANK TRUST NATIONAL
ASSOCIATION and F. SGARAGLINO, as Trustees under the Indenture, and unto their
successor or successors in trust, and their assigns, under the trusts and for
the purposes of the Indenture, as hereby amended, the properties described in
Schedule A to this supplemental indenture, which is incorporated herein by
reference with the same force and effect as if set forth at length herein, and
which properties have been acquired by the Company, through construction,
purchase, consolidation or merger, or otherwise, subsequent to May 1, 1997
(except as otherwise indicated in said Schedule A), and which are owned by the
Company at the date of the execution hereof together with the tenements,
hereditaments and appurtenances thereunto belonging or appertaining, TO HAVE AND
TO HOLD all said property, rights and interests forever, BUT IN TRUST,
NEVERTHELESS, upon the trusts, for the purposes and subject to all the terms,
conditions, provisions and restrictions of the Indenture, as hereby amended.
And upon the considerations and for the purposes aforesaid, and in
order to provide, pursuant to the terms of the Indenture, for the issuance under
the Indenture, as hereby amended, of bonds of Senior Notes Series AA and to fix
the terms, provisions and characteristics of the bonds of said Series, and to
modify or amend the Indenture in the particulars and to the extent hereinafter
in this supplemental indenture specifically provided, the Company hereby
covenants and agrees with the Trustees as follows:
ARTICLE I
SECTION 1. A series of bonds issuable under the Indenture, as hereby
amended, to be known and designated as "First Mortgage Bonds, Senior Notes
Series AA" (hereinafter in this Article sometimes referred to as the "bonds of
Senior Notes Series AA" or the "bonds of said Series"), and which shall be
executed, authenticated and issued only in the form of registered bonds without
coupons, is hereby created and authorized. The bonds of Senior Notes Series AA
and the Trustee's Certificate to be endorsed thereon shall be substantially in
the form thereof hereinbefore recited. Each bond of said Series is to be issued
and registered in the name of The Bank of New York, as trustee, or a successor
trustee (said trustee or any successor trustee being hereinafter referred to as
the "Senior Note Trustee"), under the Indenture dated as of December 1, 1998
between the Company and the Senior Note Trustee (the "Senior Note Indenture"),
to secure any and all obligations of the Company under the ___ Senior Notes and
any other series of Senior Notes from time to time outstanding under the Senior
Note Indenture. Each bond of said Series shall be dated as of the Interest
Payment Date thereof to which interest was paid next preceding the date of
issue, unless (a) issued on an Interest Payment Date thereof to which interest
was paid, in which event it shall be dated as of such issue date, or (b) issued
prior to the occurrence of the first Interest Payment Date thereof to which
interest was paid, in which event it shall be dated the Original Issue Date
specified in the form of bond. The bonds of said Series shall be due and
payable in the principal amount and on the Maturity Date specified below, shall
bear interest from the date thereof at the Interest Rate per annum specified
below payable half-yearly on the Interest Payment Dates
9
<PAGE>
specified in the form of bond to the Registered Owner as specified on the
registry books of the Trustee at the close of business of the Trustee on the
applicable Record Date as provided in Section 3 of this Article I.
10
<PAGE>
MATURITY DATE PRINCIPAL AMOUNT INTEREST RATE
______ __, ____ $75,000,000 ____%
The bonds of Senior Notes Series AA shall be payable, as to both
principal and interest, in immediately available funds, at the office or agency
of the Senior Note Trustee, in any coin or currency of the United States of
America which at the time of payment is legal tender for public and private
debts.
SECTION 2. Anything contained in Section 14 of Article I of the
Indenture, or elsewhere in the Indenture, to the contrary notwithstanding, only
the person in whose name any of the bonds of said Series is registered (the
"Registered Owner") at the close of business on any Record Date, as hereinafter
defined, with respect to any Interest Payment Date shall be entitled to receive
the interest payable on such Interest Payment Date notwithstanding the
cancellation of such bonds upon any transfer or exchange subsequent to the
Record Date and prior to such Interest Payment Date; provided, however, that if
and to the extent the Company shall default in the payment of the interest due
on such Interest Payment Date, such defaulted interest shall be paid to the
persons in whose names outstanding bonds of said Series are registered on the
Record Date to be established by the Trustee for payment of such defaulted
interest.
Upon any payment of the principal of, premium, if any, and interest
on, all or any portion of the ____ Senior Notes, whether at maturity or prior to
maturity by redemption or otherwise or upon provision for the payment thereof
having been made in accordance with Section 5.01(a) of the Senior Note
Indenture, bonds of Senior Notes Series AA in a principal amount equal to the
principal amount of such ____ Senior Notes and having both a corresponding
maturity date and interest rate shall, to the extent of such payment of
principal, premium, if any, and interest, be deemed paid and the obligation of
the Company thereunder to make such payment shall be discharged to such extent
and, in the case of the payment of principal (and premium, if any), such bonds
of said Series shall be surrendered to the Company for cancellation as provided
in Section 4.08 of the Senior Note Indenture. The Trustee may at anytime and all
times conclusively assume that the obligation of the Company to make payments
with respect to the principal of and premium, if any, and interest on the ____
Senior Notes, so far as such payments at the time have become due, has been
fully satisfied and discharged pursuant to the foregoing sentence unless and
until the Trustee shall have received a written notice from the Senior Note
Trustee signed by one of its officers stating (i) the timely payment of
principal, or premium or interest on, the ____ Senior Notes has not been made,
(ii) that the Company is in arrears as to the payments required to be made by it
to the Senior Note Trustee pursuant to the Senior Note Indenture, and (iii) the
amount of the arrearage.
SECTION 3. The term "Record Date" as used herein with respect to any
Interest Payment Date (other than an Interest Payment Date for the payment of
defaulted interest) shall mean the applicable Record Date specified in the form
of bond next preceding such Interest Payment Date, or, if such Record Date shall
be a legal holiday or a day on which banking
11
<PAGE>
institutions in the City of Chicago, Illinois, are authorized by law to close,
then the next preceding day which shall not be a legal holiday or a day on which
such institutions are so authorized to close.
SECTION 4. The bonds of Senior Notes Series AA are not redeemable
except on the respective dates, in the respective principal amounts and for the
respective redemption prices that correspond to the redemption dates for, the
principal amounts to be redeemed of, and the redemption prices for, the ___
Senior Notes, and except as set forth in Section 5 hereof.
In the event that the Company redeems any ___ Senior Notes prior to
maturity in accordance with the provisions of the Senior Note Indenture, the
Senior Note Trustee shall on the same date deliver to the Company the bonds of
Senior Notes Series AA in principal amounts corresponding to the ____ Senior
Notes so redeemed, as provided in Section 4.08 of the Senior Note Indenture.
The Company agrees to give the Senior Note Trustee notice of any such redemption
of the ____ Senior Notes on or before the date fixed for any such redemption.
SECTION 5. Upon the occurrence of an Event of Default under the Senior
Note Indenture and the acceleration of the ___ Senior Notes, the bonds of Senior
Notes Series AA shall be redeemable in whole upon receipt by the Trustee of a
written demand (hereinafter called a "Redemption Demand") from the Senior Note
Trustee stating that there has occurred under the Senior Note Indenture both an
Event of Default and a declaration of acceleration of payment of principal,
accrued interest and premium, if any, on the Senior Notes specifying the last
date to which interest on such ____ Senior Notes has been paid (such date being
hereinafter referred to as the "Initial Interest Accrual Date") and demanding
redemption of the bonds of said Series. The Company waives any right it may
have to prior notice of such redemption under the Indenture. Upon surrender of
the bonds of said Series by the Senior Note Trustee to the Trustee, the bonds of
said Series shall be redeemed at a redemption price equal to the principal
amount thereof plus accrued interest thereon from the Initial Interest Accrual
Date to the date of the Redemption Demand; provided, however, that in the event
of a rescission or annulment of acceleration of Senior Notes pursuant to the
last paragraph of Section 8.01(a) of the Senior Note Indenture, then any
Redemption Demand shall thereby deemed to be rescinded by the Senior Note
Trustee although no such rescission or annulment shall extend to or affect any
subsequent default or impair any right consequent thereon.
SECTION 6. For purposes of Section 4.09 of the Senior Note
Indenture, the bonds of Senior Notes Series AA shall be deemed to be the
"Related Series of Senior Notes First Mortgage Bonds" in respect of the ___
Senior Notes.
SECTION 7. The bonds of Senior Notes Series AA shall not be
assignable or transferable except as permitted by Section 4.04 of the Senior
Note Indenture. Any such transfer shall be effected at the principal office or
place of business of the Trustee under the Indenture. The bonds of said Series
are exchangeable by the Registered Owner thereof, in person or by attorney duly
authorized, at the principal office or place of business of the Trustee under
the Indenture, upon the surrender and cancellation of said bonds and the payment
of any stamp tax or other governmental charge, and upon any such exchange a new
registered bond or bonds without coupons, of the same series and maturity and
for the same aggregate principal amount, will be the same series and maturity
and for the same aggregate principal amount, will be issued in exchange
12
<PAGE>
theretofore; and provided, that the Company shall not be required to exchange
any bonds of Senior Notes Series AA for a period of ten (10) days next preceding
an Interest Payment Date with respect to bonds of said Series.
The bonds of said Series shall, from time to time, be executed on
behalf of the Company and sealed with the corporate seal of the Company, all in
the manner provided or permitted by Section 6 of Article I of the Indenture, as
follows:
(a) bonds of Senior Notes Series AA executed on behalf of the Company
by its President or a Vice-President and/or by its Secretary or an
Assistant Secretary may be so executed by the facsimile signature of such
President or Vice-President and/or of such Secretary or Assistant
Secretary, as the case may be, of the Company, or of any person or persons
who shall have been such officer or officers, as the case may be, of the
Company on or subsequent to the date of this supplemental indenture,
notwithstanding that he or they may have ceased to be such officer or
officers of the Company at the time of the actual execution,
authentication, issue or delivery of any of such bonds, and any such
facsimile signature or signatures of any such officer or officers on any
such bonds shall constitute execution of such bonds on behalf of the
Company by such officer or officers of the Company for the purposes of the
Indenture, as hereby amended, and shall be valid and effective for all
purposes, provided that all bonds shall always be executed on behalf of the
Company by the signature, manual or facsimile, of its President or a
Vice-President and of its Secretary or an Assistant Secretary, and
provided, further, that none of such bonds shall be executed on behalf of
the Company by the same officer or person acting in more than one capacity;
and
(b) such corporate seal of the Company may be a facsimile, and any
bonds of said Series on which such facsimile seal shall be affixed,
impressed, imprinted or reproduced shall be deemed to be sealed with the
corporate seal of the Company for the purposes of the Indenture, as hereby
amended, and such facsimile seal shall be valid and effective for all
purposes.
SECTION 8. As provided in Section 4.11 of the Senior Note
Indenture, from and after the Release Date (as defined in the Senior Note
Indenture), the obligations of the Company with respect to the bonds of Senior
Notes Series AA shall be deemed to be satisfied and discharged, the bonds of
said Series shall cease to secure in any manner any Senior Notes outstanding
under the Senior Note Indenture, and, pursuant to Section 4.08 of the Senior
Note Indenture, the Senior Note Trustee shall forthwith deliver the bonds of
said Series to the Company for cancellation.
ARTICLE II
SECTION 1. Sections 10 and 16 of Article III of the Indenture are,
and each of them is, hereby amended by striking out the words "Series W through
Series Z, Series 1995-1, Series 1997-1 and Series 1997-2" wherever the same
occur in each of said sections, and by inserting, in lieu thereof, the words
"Series W through Series Z, Series 1995-1, Series 1997-1, Series 1997-2 and
Senior Notes Series AA" and the Company hereby covenants and agrees to observe
and comply with the provisions of said sections as hereby amended.
13
<PAGE>
ARTICLE III
SECTION 1. The provisions of this supplemental indenture shall become
and be effective from and after the execution hereof, and the Indenture, as
hereby amended, shall remain in full force and effect.
SECTION 2. Each reference in the Indenture, or in this supplemental
indenture, to any article, section, term or provision of the Indenture shall
mean and be deemed to refer to such article, section, term or provision of the
Indenture, as hereby amended, except where the context otherwise indicates.
SECTION 3. All the covenants, provisions, stipulations and agreements
in this supplemental indenture contained are and shall be for the sole and
exclusive benefit of the parties hereto, their successors and assigns, and of
the holders and Registered Owners from time to time of the bonds and of the
coupons issued and outstanding from time to time under and secured by the
Indenture, as hereby amended, and the Senior Note Trustee, for the benefit of
the holder or holders of the ____ Senior Notes.
This supplemental indenture has been executed in a number of identical
counterparts, each of which so executed shall be deemed to be an original.
At the time of the execution of this supplemental indenture, the
aggregate principal amount of all indebtedness of the Company outstanding, or to
be presently outstanding, under and secured by the Indenture, as hereby amended,
taking into account the refunding of $33,000,000 of First Mortgage Bonds, Series
W, 8-1/2%, due May 15, 2022, is $408,000,000, evidenced by First Mortgage Bonds
of the series listed below, issued by the Company under said Indenture and now
outstanding or to be presently issued by it under said Indenture, as follows:
Principal
Series Interest Rate (%) Maturity Date Amount ($)
------ ----------------- ------------- ----------
W 7-1/8 May 15, 1999 50,000,000
X 7-1/2 July 1, 2007 50,000,000
Y 6-3/4 September 15, 2002 23,000,000
Z 6 April 1, 2000 25,000,000
Z 6-3/8 April 1, 2003 40,000,000
1995-1 6.49 June 1, 2005 20,000,000
1997-1 6.52 March 15, 1999 5,000,000
1997-1 6.60 September 15, 1999 5,000,000
1997-1 6.68 March 15, 2000 5,000,000
1997-1 6.75 September 15, 2000 5,000,000
1997-1 6.83 March 15, 2001 5,000,000
1997-1 6.89 September 15, 2001 5,000,000
1997-1 6.94 March 15, 2002 5,000,000
1997-1 6.96 September 15, 2002 5,000,000
1997-1 6.99 March 15, 2003 5,000,000
1997-2 6.73 June 1, 2001 20,000,000
14
<PAGE>
1997-2 7.05 June 1, 2006 20,000,000
1997-2 7.61 June 1, 2017 40,000,000
Senior Notes AA 75,000,000(a)
-------------
TOTAL 408,000,000
(a) To be presently issued by the Company under said Indenture.
15
<PAGE>
IN WITNESS WHEREOF, said Central Illinois Public Service Company has caused
this instrument to be executed in its corporate name by its President or a Vice
President and its corporate seal or a facsimile thereof to be hereunto affixed
and to be attested by its Secretary or an Assistant Secretary, and said U.S.
Bank Trust National Association, for the purpose of entering into and joining
with the Company in the execution of this supplemental indenture, has caused
this instrument to be executed in its corporate name by one of its Assistant
Vice Presidents and its corporate seal to be hereunto affixed and to be attested
by one of its Vice Presidents, and said F. Sgaraglino, for the purpose of
entering into and joining with the Company in the execution of this supplemental
indenture, has signed and sealed this instrument; all as of the day and year
first above written.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
By
--------------------------------
Vice President
(CORPORATE SEAL)
ATTEST:
- ----------------------------------
Assistant Secretary
U.S. BANK TRUST NATIONAL ASSOCIATION
By
--------------------------------
Larry Kusch
Assistant Vice President
(CORPORATE SEAL)
ATTEST:
- -----------------------------------
H. H. Hall, Jr.
Vice President and
Assistant Secretary
(SEAL)
----------------------------------
F. Sgaraglino
16
STATE OF ILLINOIS )
) ss
COUNTY OF SANGAMON )
I, ______________, a Notary Public in and for said County in the State
aforesaid, do hereby certify that ________________, Vice President of CENTRAL
ILLINOIS PUBLIC SERVICE COMPANY, a corporation organized and existing under the
laws of the State of Illinois, and ____________, Assistant Secretary of said
corporation, who are both personally known to me to be the same persons whose
names are subscribed to the foregoing instrument as such officers, respectively,
of said corporation, and who are both personally known to me to be such
officers, appeared before me this day in person and severally acknowledged that
they signed, sealed and delivered said instrument as their free and voluntary
act as such officers, and as the free and voluntary act of said corporation, for
the uses and purposes therein set forth.
Given under my hand and official seal this ____ day of December, 1998.
------------------------------------
Notary Public
(NOTARIAL SEAL)
17
<PAGE>
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
I, ____________, a Notary Public in and for said County in the State
aforesaid, do hereby certify that:
(a) Larry Kusch, an Assistant Vice President of U.S. BANK TRUST
NATIONAL ASSOCIATION, a national banking association, and H. H. Hall, Jr.,
a Vice President and Assistant Secretary of said association, who are both
personally known to me to be the same persons whose names are subscribed to
the foregoing instrument as such officers, respectively, of said
association, and who are both personally known to me to be such officers,
appeared before me this day in person and severally acknowledged that they
signed, sealed and delivered said instrument as their free and voluntary
act as such officers, and as the free and voluntary act of said
association, for the uses and purposes therein set forth; and
(b) F. Sgaraglino, personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day
in person and acknowledged that he signed, sealed and delivered said
instrument as his free and voluntary act, for the uses and purposes therein
set forth.
Given under my hand and official seal this ____ day of December, 1998.
------------------------------------
Notary Public
(NOTARIAL SEAL)
18
<PAGE>
Exhibit 4.03
================================================================================
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
AND
THE BANK OF NEW YORK
TRUSTEE
------------------
INDENTURE
DATED AS OF DECEMBER 1, 1998
================================================================================
<PAGE>
CROSS REFERENCE SHEET SHOWING THE LOCATION IN THE INDENTURE OF THE
PROVISIONS INSERTED PURSUANT TO SECTIONS 310 THROUGH 318(a),
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939
Trust Indenture Act Indenture
Section Section
310 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . 9.09
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . 9.09
(a) (3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a) (4) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a) (5) . . . . . . . . . . . . . . . . . . . . . . . . 9.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.08
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01 and 7.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(c)
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04(d)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04(c)
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03 and 6.06
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(c) (1) . . . . . . . . . . . . . . . . . . . . . . . . 1.03 and 15.05
(c) (2) . . . . . . . . . . . . . . . . . . . . . . . . 1.03 and 15.05
(c) (3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 1.03 and 4.06
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 15.05(b)
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.01(b)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.09
316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.07 and 10.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.04(b) and 13.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 10.06
317 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . 8.02(b)
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . 8.02(c)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02 and 6.04
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01 General . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.02 Trust Indenture Act.. . . . . . . . . . . . . . . . . . . .1
Section 1.03 Definitions.. . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.01 Form Generally. . . . . . . . . . . . . . . . . . . . . . .8
Section 2.02 Form Of Trustee's Certificate Of Authentication.. . . . . .8
Section 2.03 Amount Unlimited. . . . . . . . . . . . . . . . . . . . . .8
Section 2.04 Denominations, Dates, Interest Payment And Record Dates.. .9
Section 2.05 Execution, Authentication, Delivery And Dating. . . . . . 10
Section 2.06 Exchange And Registration Of Transfer Of Notes. . . . . . 13
Section 2.07 Mutilated, Destroyed, Lost Or Stolen Notes. . . . . . . . 14
Section 2.08 Temporary Notes.. . . . . . . . . . . . . . . . . . . . . 15
Section 2.09 Cancellation Of Notes Paid, Etc.. . . . . . . . . . . . . 15
Section 2.10 Interest Rights Preserved.. . . . . . . . . . . . . . . . 15
Section 2.11 Special Record Date.. . . . . . . . . . . . . . . . . . . 15
Section 2.12 Payment Of Notes. . . . . . . . . . . . . . . . . . . . . 16
Section 2.13 Notes Issuable In The Form Of A Global Note.. . . . . . . 17
ARTICLE III
REDEMPTION OF NOTES
Section 3.01 Applicability Of Article. . . . . . . . . . . . . . . . . 19
Section 3.02 Notice Of Redemption; Selection Of Notes. . . . . . . . . 19
Section 3.03 Payment Of Notes On Redemption; Deposit Of
Redemption Price.. . . . . . . . . . . . . . . . . . . . 20
i
<PAGE>
ARTICLE IV
SENIOR NOTE FIRST MORTGAGE BONDS
Section 4.01 Delivery Of Initial Series Of Senior Note First Mortgage
Bonds.. . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.02 Receipt.. . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.03 Senior Note First Mortgage Bonds Held By The Trustee. . . 21
Section 4.04 No Transfer Of Senior Note First Mortgage Bonds;
Exceptions. . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.05 Delivery To The Company Of All Senior Note
First Mortgage Bonds.. . . . . . . . . . . . . . . . . . 22
Section 4.06 Fair Value Certificate. . . . . . . . . . . . . . . . . . 22
Section 4.07 Further Assurances. . . . . . . . . . . . . . . . . . . . 23
Section 4.08 Exchange And Surrender Of Senior Note First
Mortgage Bonds.. . . . . . . . . . . . . . . . . . . . . 23
Section 4.09 Acceptance Of Additional Senior Note First Mortgage Bonds.24
Section 4.10 Terms Of Senior Note First Mortgage Bonds.. . . . . . . . 24
Section 4.11 Senior Note First Mortgage Bonds As Security For Notes. . 24
ARTICLE V
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
Section 5.01 Satisfaction And Discharge. . . . . . . . . . . . . . . . 25
Section 5.02 Deposited Moneys To Be Held In Trust By Trustee.. . . . . 27
Section 5.03 Paying Agent To Repay Moneys Held.. . . . . . . . . . . . 27
Section 5.04 Return Of Unclaimed Moneys. . . . . . . . . . . . . . . . 27
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01 Payment Of Principal And Interest.. . . . . . . . . . . . 27
Section 6.02 Offices For Payments, Etc.. . . . . . . . . . . . . . . . 27
Section 6.03 Appointment To Fill A Vacancy In Office Of Trustee. . . . 28
Section 6.04 Provision As To Paying Agent. . . . . . . . . . . . . . . 28
Section 6.05 Opinions Of Counsel.. . . . . . . . . . . . . . . . . . . 29
Section 6.06 Certificates And Notice To Trustee. . . . . . . . . . . . 29
Section 6.07 Restrictions On Liens.. . . . . . . . . . . . . . . . . . 30
Section 6.08 Restrictions On Sale And Lease-Back Transactions. . . . . 31
Section 6.09 Corporate Existence.. . . . . . . . . . . . . . . . . . . 32
ii
<PAGE>
ARTICLE VII
NOTEHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 7.01 Company To Furnish Noteholder Lists.. . . . . . . . . . . 32
Section 7.02 Preservation and Disclosure of Noteholder Lists.. . . . . 33
Section 7.03 Reports By The Company. . . . . . . . . . . . . . . . . . 34
Section 7.04 Reports By The Trustee. . . . . . . . . . . . . . . . . . 34
ARTICLE VIII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENTS OF DEFAULT
Section 8.01 Events Of Default.. . . . . . . . . . . . . . . . . . . . 35
Section 8.02 Collection Of Indebtedness By Trustee; Trustee
May Prove Debt. . . . . . . . . . . . . . . . . . . . . . 37
Section 8.03 Application Of Proceeds.. . . . . . . . . . . . . . . . . 38
Section 8.04 Limitations On Suits By Noteholders.. . . . . . . . . . . 39
Section 8.05 Suits For Enforcement.. . . . . . . . . . . . . . . . . . 40
Section 8.06 Powers And Remedies Cumulative; Delay Or
Omission Not Waiver Of Default. . . . . . . . . . . . . . 40
Section 8.07 Direction of Proceedings and Waiver of Defaults
By Majority of Noteholders. . . . . . . . . . . . . . . . 41
Section 8.08 Notice of Default.. . . . . . . . . . . . . . . . . . . . 41
Section 8.09 Undertaking To Pay Costs. . . . . . . . . . . . . . . . . 41
Section 8.10 Restoration of Rights on Abandonment of Proceedings.. . . 42
Section 8.11 Defaults Under The First Mortgage.. . . . . . . . . . . . 42
Section 8.12 Waiver of Usury, Stay or Extension Laws.. . . . . . . . . 42
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 Duties and Responsibilities of Trustee. . . . . . . . . . 42
Section 9.02 Reliance on Documents, Opinions, Etc. . . . . . . . . . . 43
Section 9.03 No Responsibility For Recitals, Etc.. . . . . . . . . . . 44
Section 9.04 Trustee, Authenticating Agent, Paying Agent
Or Registrar May Own Notes. . . . . . . . . . . . . . . . 44
Section 9.05 Moneys To Be Held In Trust. . . . . . . . . . . . . . . . 44
Section 9.06 Compensation And Expenses Of Trustee. . . . . . . . . . . 44
Section 9.07 Officers' Certificate As Evidence.. . . . . . . . . . . . 45
Section 9.08 Conflicting Interest Of Trustee.. . . . . . . . . . . . . 45
Section 9.09 Existence And Eligibility Of Trustee. . . . . . . . . . . 45
Section 9.10 Resignation Or Removal Of Trustee.. . . . . . . . . . . . 45
iii
<PAGE>
Section 9.11 Appointment Of Successor Trustee. . . . . . . . . . . . . 46
Section 9.12 Acceptance By Successor Trustee.. . . . . . . . . . . . . 47
Section 9.13 Succession By Merger, Etc.. . . . . . . . . . . . . . . . 47
Section 9.14 Limitations On Rights Of Trustee As A Creditor. . . . . . 48
Section 9.15 Authenticating Agent. . . . . . . . . . . . . . . . . . . 48
ARTICLE X
CONCERNING THE NOTEHOLDERS
Section 10.01 Action By Noteholders.. . . . . . . . . . . . . . . . . . 49
Section 10.02 Proof Of Execution By Noteholders.. . . . . . . . . . . . 49
Section 10.03 Persons Deemed Absolute Owners. . . . . . . . . . . . . . 49
Section 10.04 Company-Owned Notes Disregarded.. . . . . . . . . . . . . 49
Section 10.05 Revocation Of Consents; Future Holders Bound. . . . . . . 50
Section 10.06 Record Date For Noteholder Acts.. . . . . . . . . . . . . 50
ARTICLE XI
NOTEHOLDERS' MEETING
Section 11.01 Purposes Of Meetings. . . . . . . . . . . . . . . . . . . 50
Section 11.02 Call Of Meetings By Trustee.. . . . . . . . . . . . . . . 51
Section 11.03 Call Of Meetings By Company Or Noteholders. . . . . . . . 51
Section 11.04 Qualifications For Voting.. . . . . . . . . . . . . . . . 51
Section 11.05 Regulations.. . . . . . . . . . . . . . . . . . . . . . . 51
Section 11.06 Voting. . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 11.07 Rights Of Trustee Or Noteholders Not Delayed. . . . . . . 52
ARTICLE XII
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
Section 12.01 Company May Consolidate, Etc. Only On Certain Terms.. . . 52
Section 12.02 Successor Corporation Substituted.. . . . . . . . . . . . 53
ARTICLE XIII
SUPPLEMENTAL INDENTURES
Section 13.01 Supplemental Indentures Without Consent Of Noteholders. . 53
Section 13.02 Supplemental Indentures With Consent Of Noteholders.. . . 55
Section 13.03 Compliance With Trust Indenture Act; Effect Of
Supplemental Indentures.. . . . . . . . . . . . . . . . . 56
Section 13.04 Notation On Notes.. . . . . . . . . . . . . . . . . . . . 56
iv
<PAGE>
Section 13.05 Evidence Of Compliance Of Supplemental Indenture To Be
Furnished Trustee.. . . . . . . . . . . . . . . . . . . . 56
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 Indenture And Notes Solely Corporate Obligations. . . . . 56
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 Provisions Binding On Company's Successors. . . . . . . . 57
Section 15.02 Official Acts By Successor Corporation. . . . . . . . . . 57
Section 15.03 Notices.. . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 15.04 Governing Law.. . . . . . . . . . . . . . . . . . . . . . 57
Section 15.05 Evidence Of Compliance With Conditions Precedent. . . . . 57
Section 15.06 Business Days.. . . . . . . . . . . . . . . . . . . . . . 58
Section 15.07 Trust Indenture Act To Control. . . . . . . . . . . . . . 59
Section 15.08 Table Of Contents, Headings, Etc. . . . . . . . . . . . . 59
Section 15.09 Execution In Counterparts.. . . . . . . . . . . . . . . . 59
Section 15.10 Manner Of Mailing Notice To Noteholders.. . . . . . . . . 59
Section 15.11 Approval By Trustee Of Expert Or Counsel. . . . . . . . . 59
EXHIBIT A- FORM OF GLOBAL NOTE PRIOR TO RELEASE DATE
EXHIBIT B- FORM OF NOTE PRIOR TO RELEASE DATE
EXHIBIT C- FORM OF GLOBAL NOTE FOLLOWING RELEASE DATE
EXHIBIT D- FORM OF NOTE FOLLOWING RELEASE DATE
v
<PAGE>
THIS INDENTURE, dated as of December 1, 1998, between CENTRAL ILLINOIS
PUBLIC SERVICE COMPANY, a corporation duly organized and existing under the laws
of the State of Illinois (the "COMPANY"), and The Bank of New York, a New York
banking corporation, as trustee (the "TRUSTEE").
WITNESSETH
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance from
time to time of its Senior Notes, to be issued as in this Indenture provided;
WHEREAS, subject to the provisions of Section 4.11 hereof, the Company has
issued a series of Senior Note First Mortgage Bonds (as hereinafter defined) and
has delivered such series to the Trustee to hold in trust for the benefit of the
respective Holders (as hereinafter defined) from time to time of the Notes, and,
subject to the terms and provisions hereof, the Company may deliver additional
Senior Note First Mortgage Bonds to the Trustee for such purpose or require the
Trustee to deliver to the Company, for cancellation, any and all Senior Note
First Mortgage Bonds held by the Trustee;
AND WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms have been done and performed, and the execution
of this Indenture and the issue hereunder of the Notes have in all respects been
duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are,
and are to be authenticated, issued and delivered, and in consideration of the
premises, of the purchase and acceptance of the Notes by the Holders thereof and
of the sum of one dollar duly paid to it by the Trustee at the execution of this
Indenture, the receipt whereof is hereby acknowledged, the Company covenants and
agrees with the Trustee for the equal and proportionate benefit of the
respective Holders from time to time of the Notes, as follows:
ARTICLE I
DEFINITIONS
Section 1.01 GENERAL. The terms defined in this Article I (whether or
not capitalized and except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto or Company Order (as hereinafter defined) shall
have the respective meanings specified in this Article I.
Section 1.02 TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of the Trust
Indenture Act of 1939 (the "TIA"), such provision is incorporated by reference
in and made a part of this Indenture.
<PAGE>
(b) Unless otherwise indicated, all terms used in this Indenture that
are defined by the TIA, defined by the TIA by reference to another statute or
defined by a rule of the Commission under the TIA shall have the meanings
assigned to them in the TIA or such statute or rule as in force on the date of
execution of this Indenture.
Section 1.03 DEFINITIONS. For purposes of this Indenture, the following
terms shall have the following meanings.
"AUTHENTICATING AGENT" shall mean any agent of the Trustee which shall be
appointed and acting pursuant to Section 9.15 hereof.
"AUTHORIZED AGENT" shall mean any agent of the Company designated as such
by an Officers' Certificate delivered to the Trustee.
"BOARD OF DIRECTORS" shall mean the Board of Directors of the Company or
the Executive Committee of such Board or any other duly authorized committee of
such Board.
"BOARD RESOLUTION" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions or trust companies in the
Borough of Manhattan, the City and State of New York, or in the city where the
corporate trust office of the Trustee is located, are obligated or authorized by
law or executive order to close.
"CAPITAL LEASE" shall mean any lease which has been or would be capitalized
on the books of the lessee in accordance with GAAP.
"CAPITALIZATION" shall mean the total of all the following items appearing
on, or included in, the consolidated balance sheet of the Company: (i)
liabilities for Debt maturing more than twelve (12) months from the date of
determination; and (ii) common stock, preferred stock, Hybrid Preferred
Securities, premium on capital stock, capital surplus, capital in excess of par
value, and retained earnings (however the foregoing may be designated), less, to
the extent not otherwise deducted, the cost of shares of capital stock of the
Company held in its treasury. Subject to the foregoing, Capitalization shall be
determined in accordance with generally accepted accounting principles and
practices applicable to the type of business in which the Company is engaged and
that are approved by independent accountants regularly retained by the Company,
and may be determined as of a date not more than sixty (60) days prior to the
happening of an event for which such determination is being made.
"COMMISSION" shall mean the United States Securities and Exchange
Commission, or if at any time hereafter the Commission is not existing or
performing the duties now assigned to it under the TIA, then the body performing
such duties.
"COMPANY" shall mean the corporation named as the "Company" in the first
paragraph of this Indenture, and its successors and assigns permitted hereunder.
2
<PAGE>
"COMPANY ORDER" shall mean a written order signed in the name of the
Company by one of the Chairman, the President, any Vice President (whether or
not designated by a number or numbers or a word or words added before or after
the title "Vice President"), the Treasurer or an Assistant Treasurer, of the
Company, and delivered to the Trustee. At the Company's option, a Company Order
may take the form of a supplemental indenture to this Indenture.
"CONSOLIDATED SUBSIDIARY" shall mean any Subsidiary whose accounts are or
are required to be consolidated with the accounts of the Company in accordance
with GAAP.
"CORPORATE TRUST OFFICE OF THE TRUSTEE", or other similar term, shall mean
the corporate trust office of the Trustee, at which at any particular time its
corporate trust business shall be principally administered, which office is at
the date of the execution of this Indenture located at 101 Barclay Street, Floor
21W, New York, New York 10286.
"DEBT" shall mean any outstanding debt for money borrowed of the Company
evidenced by notes, debentures, bonds, or other securities, or guarantees of any
thereof.
"DEPOSITARY" shall mean, unless otherwise specified in a Company Order
pursuant to Section 2.05 hereof, The Depository Trust Company, New York, New
York ("DTC"), or any successor thereto registered and qualified as a clearing
agency under the Securities Exchange Act of 1934, or other applicable statute or
regulation.
"EVENT OF DEFAULT" shall mean any event specified in Section 8.01 hereof,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"EXPERT" shall mean any officer of the Company familiar with the terms of
the First Mortgage and this Indenture, any law firm, any investment banking
firm, or any other Person, satisfactory in the reasonable judgment of the
Trustee.
"FIRST MORTGAGE" shall mean the Indenture of Mortgage or Deed of Trust,
dated October 1, 1941 from the Company to U.S. Bank Trust National Association,
as successor trustee, and F. Sgaraglino, as successor co-trustee, as
supplemented and amended from time to time.
"FIRST MORTGAGE BONDS" shall mean all first mortgage bonds issued by the
Company and outstanding under the First Mortgage, other than Senior Note First
Mortgage Bonds.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect on the date hereof, applied on a basis consistent
with those used in the preparation of any financial statements referred to
herein, unless otherwise stated herein.
"GLOBAL NOTE" shall mean a Senior Note that, pursuant to Section 2.05
hereof, is issued to evidence Senior Notes, that is delivered to the Depositary
or pursuant to the instructions of the Depositary and that shall be registered
in the name of the Depositary or its nominee.
3
<PAGE>
"HYBRID PREFERRED SECURITIES" shall mean any preferred securities issued by
a Hybrid Preferred Securities Subsidiary, where such preferred securities have
the following characteristics:
(i) such Hybrid Preferred Securities Subsidiary lends
substantially all of the proceeds from the issuance of such preferred
securities to the Company in exchange for Junior Subordinated Indebtedness
issued by the Company;
(ii) such preferred securities contain terms providing for the
deferral of interest payments corresponding to provisions providing for the
deferral of interest payments on the Junior Subordinated Indebtedness; and
(iii) the Company makes periodic interest payments on the Junior
Subordinated Indebtedness, which interest payments are in turn used by the
Hybrid Preferred Securities Subsidiary to make corresponding payments to
the holders of the preferred securities.
"HYBRID PREFERRED SECURITIES SUBSIDIARY" shall mean any business trust (or
similar entity) (i) all of the common equity interest of which is owned (either
directly or indirectly through one or more wholly-owned Subsidiaries of the
Company or any Consolidated Subsidiary of the Company) at all times by the
Company, (ii) that has been formed for the purpose of issuing Hybrid Preferred
Securities and (iii) substantially all of the assets of which consist at all
times solely of Junior Subordinated Indebtedness issued by the Company and
payments made from time to time on such Junior Subordinated Indebtedness.
"INDENTURE" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
"INTEREST PAYMENT DATE" shall mean (a) each date designated as such for the
payment of interest on a Note specified in a Company Order pursuant to Section
2.05 hereof, (provided that the first Interest Payment Date for any Note, the
Original Issue Date of which is after a Regular Record Date but prior to the
respective Interest Payment Date, shall be the Interest Payment Date following
the next succeeding Regular Record Date), (b) a date of Maturity of such Note
and (c) only with respect to defaulted interest on such Note, the date
established by the Trustee for the payment of such defaulted interest pursuant
to Section 2.11 hereof.
"JUNIOR SUBORDINATED INDEBTEDNESS" shall mean any unsecured Debt of the
Company (i) issued in exchange for the proceeds of Hybrid Preferred Securities
and (ii) subordinated to the rights of the Holders hereunder.
"LIEN" shall mean any mortgage, security interest, pledge or lien.
"MATURITY," when used with respect to any Note, shall mean the date on
which the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity thereof or by declaration of
acceleration, redemption or otherwise.
"MORTGAGE TRUSTEE" shall mean the Person serving as corporate trustee at
the time under the First Mortgage.
4
<PAGE>
"NOTE" or "NOTES" shall mean any Senior Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
"NOTEHOLDER", "HOLDER OF NOTES" or "HOLDER" shall mean any Person in whose
name at the time a particular Note is registered on the books of the Trustee
kept for that purpose in accordance with the terms hereof.
"OFFICERS' CERTIFICATE" when used with respect to the Company, shall mean a
certificate signed by one of the Chairman, the President, any Vice President
(whether or not designated by a number or numbers or a word or words added
before or after the title "Vice President"), and by the Chief Financial
Officer, Treasurer, any Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company; provided, that no individual shall be entitled to sign
in more than one capacity.
"OPERATING PROPERTY" shall mean (i) any interest in real property owned by
the Company and (ii) any asset owned by the Company that is depreciable in
accordance with GAAP, excluding, in either case, any interest of the Company as
lessee under a Capital Lease (except for a lease that results from a Sale and
Lease-Back Transaction).
"OPINION OF COUNSEL" shall mean an opinion in writing signed by legal
counsel, who may be an employee of the Company, meeting the applicable
requirements of Section 15.05 hereof. If the Indenture requires the delivery of
an Opinion of Counsel to the Trustee, the text and substance of which has been
previously delivered to the Trustee, the Company may satisfy such requirement by
the delivery by the legal counsel that delivered such previous Opinion of
Counsel of a letter to the Trustee to the effect that the Trustee may rely on
such previous Opinion of Counsel as if such Opinion of Counsel was dated and
delivered the date delivery of such Opinion of Counsel is required. Any Opinion
of Counsel may contain reasonable conditions and qualifications satisfactory to
the Trustee.
"OPINION OF INDEPENDENT COUNSEL" shall mean an opinion in writing signed by
legal counsel, who shall not be an employee of the Company, meeting the
applicable requirements of Section 15.05. Any Opinion of Independent Counsel may
contain reasonable conditions and qualifications satisfactory to the Trustee.
"ORIGINAL ISSUE DATE" shall mean for a Note, or portions thereof, the date
upon which it, or such portion, was issued by the Company pursuant to this
Indenture and authenticated by the Trustee (other than in connection with a
transfer, exchange or substitution).
"OUTSTANDING", when used with reference to Notes, shall, subject to Section
10.04 hereof, mean, as of any particular time, all Notes authenticated and
delivered by the Trustee under this Indenture, except
(a) Notes theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation;
(b) Notes, or portions thereof, for the payment or redemption of which
moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company), PROVIDED that if such
Notes are to be redeemed prior to the Stated
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Maturity thereof, notice of such redemption shall have been given as provided in
Article III, or provisions satisfactory to the Trustee shall have been made for
giving such notice;
(c) Notes, or portions thereof, that have been paid and discharged or are
deemed to have been paid and discharged pursuant to the provisions of this
Indenture; and
(d) Notes in lieu of or in substitution for which other Notes shall have
been authenticated and delivered, or which have been paid, pursuant to Section
2.07 hereof.
"PERSON" shall mean any individual, corporation, company partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agent or political subdivision
thereof.
"PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY" shall mean 607 East Adams
Street, Springfield, Illinois 62739, or such other place where the main
corporate offices of the Company are located as designated in writing to the
Trustee by an Authorized Agent.
"REGULAR RECORD DATE" shall mean, unless otherwise specified in a Company
Order pursuant to Section 2.05 hereof, for an Interest Payment Date for a
particular Note (except for an Interest Payment Date with respect to defaulted
interest on such Note) (a) the fifteenth day of the calendar month next
preceding each Interest Payment Date (unless the Interest Payment Date is the
date of Maturity of such Note, in which event, the Regular Record Date shall be
as described in clause (b) hereof) and (b) the date of Maturity of such Note.
"RELATED SERIES OF NOTES" shall mean, when used in reference to the First
Mortgage Bonds, Senior Notes Series AA, the Company's Senior Notes, [__]% Due
[___] and, when used in reference to another series of Senior Note First
Mortgage Bonds, shall mean the series of Notes in respect of which such series
of Senior Note First Mortgage Bonds were delivered to the Trustee pursuant to
Section 4.09 hereof upon the initial authentication and issuance of such series
of Notes pursuant to Section 2.05 hereof.
"RELATED SERIES OF SENIOR NOTE FIRST MORTGAGE BONDS" shall mean, when used
in reference to the Company's Senior Notes, [__]% Due [____], the First Mortgage
Bonds, Senior Notes Series AA, and, when used in reference to any other series
of Notes, shall mean the series of Senior Note First Mortgage Bonds delivered to
the Trustee pursuant to Section 4.09 hereof in connection with the initial
authentication and issuance of such series of Notes pursuant to Section 2.05
hereof.
"RELEASE DATE" shall mean the date as of which all First Mortgage Bonds
have been retired through payment, redemption, or otherwise at, before or after
the maturity thereof.
"RESPONSIBLE OFFICER" or "RESPONSIBLE OFFICERS" when used with respect to
the Trustee shall mean one or more of the following: the chairman of the board
of directors, the vice chairman of the board of directors, the chairman of the
executive committee, the president, any vice president (whether or not
designated by numbers or words added before or after the title "Vice
President"), the secretary, the treasurer, any trust officer, any assistant
trust officer, any second or assistant vice president, any assistant secretary,
any assistant treasurer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to
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those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"SALE AND LEASE-BACK TRANSACTION" shall mean any arrangement with any
Person providing for the leasing to the Company of any Operating Property
(except for leases for a term, including any renewal thereof, of not more than
forty-eight (48) months), which Operating Property has been or is to be sold or
transferred by the Company to such Person; PROVIDED, HOWEVER, Sale and
Lease-back Transaction shall not include any arrangement first entered into
prior to the date of this Indenture.
"SENIOR NOTE FIRST MORTGAGE BONDS" shall mean the First Mortgage Bonds,
Senior Notes Series AA issued by the Company pursuant to the Supplemental
Indenture to the First Mortgage dated December 1, 1998 and any other first
mortgage bonds issued by the Company under the First Mortgage pursuant to
supplemental indentures to the First Mortgage and delivered to the Trustee
pursuant to Section 4.09 hereof.
"SPECIAL RECORD DATE" shall mean, with respect to any Note, the date
established by the Trustee in connection with the payment of defaulted interest
on such Note pursuant to Section 2.11 hereof.
"STATED MATURITY" shall mean with respect to any Note, the last date on
which principal on such Note becomes due and payable as therein or herein
provided, other than by declaration of acceleration or by redemption.
"SUBSIDIARY" shall mean, as to any Person, any corporation or other entity
of which at least a majority of the securities or other ownership interest
having ordinary voting power (absolutely or contingently) for the election of
directors or other Persons performing similar functions are at the time owned
directly or indirectly by such Person.
"TRUSTEE" shall mean The Bank of New York and, subject to Article IX, shall
also include any successor Trustee.
"U.S. GOVERNMENT OBLIGATIONS" shall mean (i) direct non-callable
obligations of, or non-callable obligations guaranteed as to timely payment of
principal and interest by, the United States of America or obligations of a
person controlled or supervised by and acting as an agency or instrumentality
thereof for the payment of which obligations or guarantee the full faith and
credit of the United States is pledged or (ii) certificates or receipts
representing direct ownership interests in obligations or specified portions
(such as principal or interest) of obligations described in clause (i) above,
which obligations are held by a custodian in safekeeping in a manner
satisfactory to the Trustee.
"VALUE" shall mean, with respect to a Sale and Lease-Back Transaction, as
of any particular time, the amount equal to the greater of (i) the net proceeds
to the Company from the sale or transfer of the property leased pursuant to such
Sale and Lease-Back Transaction and (ii) the net book value of such property, as
determined in accordance with generally accepted accounting principles by the
Company at the time of entering into such Sale and Lease-Back Transaction, in
either case multiplied by a fraction, the numerator of which shall be equal to
the
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number of full years of the term of the lease that is part of such Sale and
Lease-Back Transaction remaining at the time of determination and the
denominator of which shall be equal to the number of full years of such term,
without regard, in any case, to any renewal or extension options contained in
such lease.
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.01 FORM GENERALLY.
(a) If the Notes are in the form of a Global Note they shall be in
substantially the form set forth in Exhibit A (or, following the Release Date,
Exhibit C) to this Indenture, and, if the Notes are not in the form of a Global
Note, they shall be in substantially the form set forth in Exhibit B (or,
following the Release Date, Exhibit D) to this Indenture, or, in any case, in
such other form as shall be established by a Board Resolution, or a Company
Order pursuant to a Board Resolution, or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable rules
of any securities exchange or of the Depositary or with applicable law or as
may, consistently herewith, be determined by the officers executing such Notes,
as evidenced by their execution of such Notes.
(b) The definitive Notes shall be typed, printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Notes, as evidenced by their
execution of such Notes.
Section 2.02 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Notes shall be in substantially
the following form:
Trustee's Certificate of Authentication
This Note is one of the Notes of the series herein designated, described or
provided for in the within-mentioned Indenture.
The Bank of New York, As Trustee
By:
-------------------------------
Authorized Officer
Section 2.03 AMOUNT UNLIMITED. The aggregate principal amount of Notes
that may be authenticated and delivered under this Indenture is unlimited,
subject to compliance with the provisions of this Indenture.
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Section 2.04 DENOMINATIONS, DATES, INTEREST PAYMENT AND RECORD DATES.
(a) The Notes shall be issuable in registered form without coupons in
denominations of $1,000 and integral multiples thereof or such other amount or
amounts as may be authorized by the Board of Directors or a Company Order
pursuant to a Board Resolution or in one or more indentures supplemental hereto;
PROVIDED, that the principal amount of a Global Note shall not exceed
$200,000,000 unless otherwise permitted by the Depositary.
(b) Each Note shall be dated and issued as of the date of its
authentication by the Trustee, and shall bear an Original Issue Date; each Note
issued upon transfer, exchange or substitution of a Note shall bear the Original
Issue Date or Dates of such transferred, exchanged or substituted Note, subject
to the provisions of Section 2.13(d) hereof.
(c) Each Note shall accrue interest from the later of (1) its
Original Issue Date or the date specified in such Note and (2) the most recent
date to which interest has been paid or duly provided for with respect to such
Note until the principal of such Note is paid or made available for payment, and
interest on each Note shall be payable on each Interest Payment Date after the
Original Issue Date.
(d) Each Note shall mature on a Stated Maturity specified in the
Note. The principal amount of each outstanding Note shall be payable on the
Stated Maturity date specified therein.
(e) Unless otherwise specified in a Company Order pursuant to Section
2.05 hereof, interest on each of the Notes shall be calculated on the basis of a
360-day year of twelve 30-day months (and for any partial periods shall be
calculated on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months) and shall be computed at a fixed rate until the Stated
Maturity of such Notes. The method of computing interest on any Notes not
bearing a fixed rate of interest shall be set forth in a Company Order pursuant
to Section 2.05 hereof. Unless otherwise specified in a Company Order pursuant
to Section 2.05 hereof, principal, interest and premium on the Notes shall be
payable in the currency of the United States.
(f) Except as provided in the following sentence, the Person in whose
name any Note is registered at the close of business on any Regular Record Date
or Special Record Date with respect to an Interest Payment Date for such Note
shall be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Note upon any registration of transfer,
exchange or substitution of such Note subsequent to such Regular Record Date or
Special Record Date and prior to such Interest Payment Date. Any interest
payable at Maturity shall be paid to the Person to whom the principal of such
Note is payable.
(g) So long as the Trustee is the registrar and paying agent, the
Trustee shall, as soon as practicable but no later than the Regular Record Date
preceding each applicable Interest Payment Date, provide to the Company a list
of the principal, interest and premium to be paid on Notes on such Interest
Payment Date. The Trustee shall assume responsibility for withholding taxes on
interest paid as required by law except with respect to any Global Note.
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Section 2.05 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Notes shall be executed on behalf of the Company by one of
its Chairman, President, any Vice President (whether or not designated by a
number or numbers or a word or words added before or after the title "Vice
President"), its Treasurer or an Assistant Treasurer of the Company and attested
by the Secretary or an Assistant Secretary of the Company. The signature of any
of these officers on the Notes may be manual or facsimile. Typographical and
other minor errors or defects in any such signature shall not affect the
validity or enforceability of any Note that has been duly authenticated and
delivered by the Trustee.
(b) Notes bearing the manual or facsimile signatures of individuals
who were at the time of execution the proper 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 Notes or did
not hold such offices at the date of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with or preceded by one or
more Company Orders for the authentication and delivery of such Notes, and the
Trustee in accordance with any such Company Order shall authenticate and make
available for delivery such Notes. The Notes shall be issued in series. Such
Company Order shall specify the following with respect to each series of Notes:
(i) any limitations on the aggregate principal amount of the Notes to be issued
as part of such series, (ii) the Original Issue Date for such series, (iii) the
Stated Maturity of Notes of such series, (iv) the interest rate or rates, or
method of calculation of such rate or rates, for such series and the date from
which such interest will accrue, (v) the terms, if any, regarding the optional
or mandatory redemption of such series, including redemption date or dates of
such series, if any, and the price or prices applicable to such redemption, (vi)
whether or not the Notes of such series shall be issued in whole or in part in
the form of a Global Note and, if so, the Depositary for such Global Note unless
DTC, (vii) the designation of such series, (viii) if the form of the Notes of
such series is not as described in Exhibit A, Exhibit B, Exhibit C or Exhibit D
hereto, the form of the Notes of such series, (ix) the maximum annual interest
rate, if any, of the Notes permitted for such series, (x) the period or periods
within which, the price or prices at which and the terms and conditions upon
which such series may be repaid, in whole or in part, at the option of the
Holder thereof, (xi) if prior to the Release Date, the designation of the
Related Series of Senior Note First Mortgage Bonds being delivered to the
Trustee in connection with the issuance of such series of Notes, (xii) the
establishment of any office or agency pursuant to Section 6.02 hereof, and
(xiii) any other terms of such series not inconsistent with this Indenture.
Prior to authenticating Notes of any series, and in accepting the additional
responsibilities under this Indenture in relation to such Notes, the Trustee
shall receive from the Company the following at or before the issuance of the
initial Note of such series of Notes, and (subject to Section 9.01 hereof) shall
be fully protected in relying upon, unless and until such documents have been
superseded or revoked prior to such issuance:
(1) A Board Resolution authorizing such Company Order or Orders
and, if the form of Notes is established by a Board Resolution or a Company
Order pursuant to a Board Resolution, a copy of such Board Resolution;
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(2) At the option of the Company, either an Opinion of Counsel
or a letter addressed to the Trustee permitting it to rely on an Opinion of
Counsel, stating substantially the following subject to customary
qualifications and exceptions:
(A) if the form of Notes has been established by or pursuant to
a Board Resolution, a Company Order pursuant to a Board Resolution, or in a
supplemental indenture as permitted by Section 2.01 hereof, that such form
has been established in conformity with this Indenture;
(B) that the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws of
general application relating to or affecting the enforcement of creditors,
the application of general principles of equity (regardless of whether such
application is made in a proceeding at law or in equity) and by an implied
covenant of good faith and fair dealing and except as enforcement of
provisions of the Indenture may be limited by state laws affecting the
remedies for the enforcement of the security provided for in the Indenture;
(C) if prior to the Release Date, that the Related Series of
Senior Note First Mortgage Bonds being delivered to the Trustee in
connection with the issuance of such series of Notes have been duly
authorized, executed and delivered, and that such Senior Note First
Mortgage Bonds are valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws of general application
relating to or affecting the enforcement of creditors and the application
of general principles of equity (regardless of whether such application is
made in a proceeding at law or in equity) and by an implied covenant of
good faith and fair dealing and except as enforcement of provisions thereof
may be limited by state laws affecting the remedies for the enforcement of
the security provided for in the First Mortgage; and that such Senior Note
First Mortgage Bonds are entitled to the benefit of the First Mortgage,
equally and ratably, with all First Mortgage Bonds and other Senior Note
First Mortgage Bonds (if any) outstanding thereunder, except as to sinking
fund provisions;
(D) that the Indenture and, if prior to the Release Date, the
First Mortgage are qualified to the extent necessary under the TIA;
(E) that such Notes have been duly authorized and executed by
the Company, and when authenticated by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance,
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moratorium or similar laws of general application relating to or affecting
the enforcement of creditors, the application of general principles of
equity (regardless of whether such application is made in a proceeding at
law or in equity) and by an implied covenant of good faith and fair dealing
and except as enforcement of provisions of this Indenture may be limited by
state laws affecting the remedies for the enforcement of the security
provided for in this Indenture;
(F) that the issuance of the Notes and, if prior to the Release
Date, the delivery by the Company of the Related Series of Senior Note
First Mortgage Bonds in connection therewith will not result in any default
under this Indenture or (if applicable) the First Mortgage;
(G) that all consents or approvals of the Illinois Commerce
Commission (or any successor agency) and of any other federal or state
regulatory agency required in connection with the Company's execution and
delivery of this Indenture, such series of Notes and any Senior Note First
Mortgage Bonds have been obtained and are in full force and effect (except
that no statement need be made with respect to state securities laws);
(H) if prior to the Release Date, that the First Mortgage and
all financing statements have been duly filed and recorded in all places
where such filing or recording is necessary for the perfection or
preservation of the lien of the First Mortgage, and the First Mortgage
constitutes a valid and perfected first lien upon the property purported to
be covered thereby, subject only to "permitted encumbrances and liens" (as
defined in the First Mortgage) and to liens upon the property, if any,
specifically identified in such supplemental indenture prior to its
recordation; and
(I) that all conditions that must be met by the Company to issue
Notes under this Indenture have been met.
(3) If prior to the Release Date, the certificate of an Expert
meeting the requirements of Section 4.06(a) hereof and a series of Senior
Note First Mortgage Bonds meeting the requirements of Section 4.10 hereof.
(4) An Officers' Certificate stating that (i) the Company is
not, and upon the authentication by the Trustee of such series of Notes,
will not be in default under any of the terms or covenants contained in
this Indenture, (ii) all conditions that must be met by the Company to
issue Notes under this Indenture have been met, and (iii) if prior to the
Release Date, the Related Series of Senior Note First Mortgage Bonds being
delivered to the Trustee meets the requirements of Section 4.10 hereof.
(d) No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of an authorized officer, and
such certificate upon any Note shall be conclusive evidence, and the
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only evidence, that such Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
(e) If all Notes of a series are not to be authenticated and issued
at one time, the Company shall not be required to deliver the Company Order,
Board Resolution, certificate of an Expert, Senior Note First Mortgage Bonds,
Officers' Certificate and Opinion of Counsel (including any of the foregoing
that would be otherwise required pursuant to Section 15.05 hereof) described in
Section 2.05(c) hereof at or prior to the authentication of each Note of such
series, if such items are delivered at or prior to the time of authentication of
the first Note of such series to be authenticated and issued. If all of the
Notes of a series are not authenticated and issued at one time, for each
issuance of Notes after the initial issuance of Notes of such series, the
Company shall be required only to deliver to the Trustee the Note and a written
request (executed by one of the Chairman, the President, any Vice President, the
Treasurer, or an Assistant Treasurer) to the Trustee to authenticate such Note
and to deliver such Note in accordance with the instructions specified by such
request. Any such request shall constitute a representation and warranty by the
Company that the statements made in the Officers' Certificate delivered to the
Trustee prior to the authentication and issuance of the first Note of such
series are true and correct on the date thereof as if made on and as of the date
thereof.
Section 2.06 EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES.
(a) Subject to Section 2.13 hereof, Notes of any series may be
exchanged for one or more new Notes of the same series of any authorized
denominations and of a like aggregate principal amount, series and Stated
Maturity and having the same terms and Original Issue Date. Notes to be
exchanged shall be surrendered at any of the offices or agencies to be
maintained pursuant to Section 6.02 hereof, and the Trustee shall authenticate
and deliver in exchange therefor the Note or Notes of such series which the
Noteholder making the exchange shall be entitled to receive.
(b) The Trustee shall keep, at one of said offices or agencies, a
register or registers in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall register or cause to be registered Notes and shall
register or cause to be registered the transfer of Notes as in this Article II
provided. Such register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, such register shall be open for inspection by the Company. Upon due
presentment for registration of transfer of any Note at any such office or
agency, the Company shall execute and the Trustee shall register, authenticate
and deliver in the name of the transferee or transferees one or more new Notes
of any authorized denominations and of a like aggregate principal amount, series
and Stated Maturity and having the same terms and Original Issue Date.
(c) All Notes presented for registration of transfer or for exchange,
redemption or payment shall be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee and duly executed by the Holder or the attorney in fact of such
Holder duly authorized in writing.
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(d) No service charge shall be made for any exchange or registration
of transfer of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
(e) The Trustee shall not be required to exchange or register the
transfer of any Notes selected, called or being called for redemption (including
Notes, if any, redeemable at the option of the Holder provided such Notes are
then redeemable at such Holder's option) except, in the case of any Note to be
redeemed in part, the portion thereof not to be so redeemed.
(f) If the principal amount, and applicable premium, of part, but not
all of a Global Note is paid, then upon surrender to the Trustee of such Global
Note, the Company shall execute, and the Trustee shall authenticate, deliver and
register, a Global Note in an authorized denomination in aggregate principal
amount equal to, and having the same terms, Original Issue Date and series as,
the unpaid portion of such Global Note.
Section 2.07 MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
(a) If any temporary or definitive Note shall become mutilated or be
destroyed, lost or stolen, the Company shall execute, and upon its written
request the Trustee shall authenticate and deliver, a new Note of like form and
principal amount and having the same terms and Original Issue Date and bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen. In every case the applicant for a substituted Note shall furnish
to the Company, the Trustee and any paying agent or Authenticating Agent such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft of a Note, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction of
the destruction, loss or theft of such Note and of the ownership thereof.
(b) The Trustee shall authenticate any such substituted Note and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Note, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
If any Note which has matured, is about to mature, has been redeemed or called
for redemption shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Note, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated Note)
if the applicant for such payment shall furnish to the Company, the Trustee and
any paying agent or Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership thereof.
(c) Every substituted Note issued pursuant to this Section 2.07 by
virtue of the fact that any Note is mutilated, destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
such destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Notes duly issued hereunder. All Notes shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive
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with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes and shall preclude to the full extent permitted by applicable law
any and all other rights or remedies with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
Section 2.08 TEMPORARY NOTES. Pending the preparation of definitive
Notes, the Company may execute and the Trustee shall authenticate and deliver
temporary Notes (printed, lithographed or otherwise reproduced). Temporary Notes
shall be issuable in any authorized denomination and substantially in the form
of the definitive Notes but with such omissions, insertions and variations as
may be appropriate for temporary Notes, all as may be determined by the Company.
Every such temporary Note shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Notes. Without unreasonable delay the Company shall execute and
shall deliver to the Trustee definitive Notes and thereupon any or all temporary
Notes shall be surrendered in exchange therefor at the corporate trust office of
the Trustee, and the Trustee shall authenticate, deliver and register in
exchange for such temporary Notes an equal aggregate principal amount of
definitive Notes. Such exchange shall be made by the Company at its own expense
and without any charge therefor to the Noteholders. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes authenticated and delivered hereunder.
Section 2.09 CANCELLATION OF NOTES PAID, ETC. All Notes surrendered for
the purpose of payment, redemption, exchange or registration of transfer shall
be surrendered to the Trustee for cancellation and promptly cancelled by it and
no Notes shall be issued in lieu thereof except as expressly permitted by this
Indenture. The Company shall surrender to the Trustee any Notes so acquired by
it and such Notes shall be cancelled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes so cancelled.
Section 2.10 INTEREST RIGHTS PRESERVED. Each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note shall
carry all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note, and each such Note shall be so dated that neither
gain nor loss of interest shall result from such transfer, exchange or
substitution.
Section 2.11 SPECIAL RECORD DATE. If and to the extent that the Company
fails to make timely payment or provision for timely payment of interest on any
series of Notes (other than on an Interest Payment Date that is a Maturity
date), that interest shall cease to be payable to the Persons who were the
Noteholders of such series at the applicable Regular Record Date. In that event,
when moneys become available for payment of the interest, the Trustee shall (a)
establish a date of payment of such interest and a Special Record Date for the
payment of that interest, which Special Record Date shall be not more than 15 or
fewer than 10 days prior to the date of the proposed payment and (b) mail notice
of the date of payment and of the Special Record Date not fewer than 10 days
preceding the Special Record Date to each Noteholder of such series at the close
of business on the 15th day preceding the mailing at the address of such
Noteholder, as it appeared on the register for the Notes. On the day so
established by the Trustee the interest shall be payable to the Holders of the
applicable Notes at the close of business on the Special Record Date.
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Section 2.12 PAYMENT OF NOTES. Payment of the principal of and interest
and premium on all Notes shall be payable as follows:
(a) On or before 9:30 a.m., New York City time, or such other time as
shall be agreed upon between the Trustee and the Company, of the day on which
payment of principal, interest and premium is due on any Global Note pursuant to
the terms thereof, the Company shall deliver to the Trustee funds available on
such date sufficient to make such payment, by wire transfer of immediately
available funds or by instructing the Trustee to withdraw sufficient funds from
an account maintained by the Company with the Trustee or such other method as is
acceptable to the Trustee. On or before 12:00 noon, New York City time, or such
other time as shall be agreed upon between the Trustee and the Depositary, of
the day on which any payment of interest is due on any Global Note (other than
at Maturity), the Trustee shall pay to the Depositary such interest in same day
funds. On or before 1:00 p.m., New York City time or such other time as shall
be agreed upon between the Trustee and the Depositary, of the day on which
principal, interest payable at Maturity and premium, if any, is due on any
Global Note, the Trustee shall deposit with the Depositary the amount equal to
the principal, interest payable at Maturity and premium, if any, by wire
transfer into the account specified by the Depositary. As a condition to the
payment, at Maturity, of any part of the principal of interest on and applicable
premium of any Global Note, the Depositary shall surrender, or cause to be
surrendered, such Global Note to the Trustee, whereupon a new Global Note shall
be issued to the Depositary pursuant to Section 2.06(f) hereof.
(b) With respect to any Note that is not a Global Note, principal,
applicable premium and interest due at the Maturity of the Note shall be payable
in immediately available funds when due upon presentation and surrender of such
Note at the corporate trust office of the Trustee or at the authorized office of
any paying agent in the Borough of Manhattan, the City and State of New York.
Interest on any Note that is not a Global Note (other than interest payable at
Maturity) shall be paid by check payable in clearinghouse funds mailed to the
Holder thereof at such Holder's address as it appears on the register; PROVIDED
that if the Trustee receives a written request from any Holder of Notes, the
aggregate principal amount of which having the same Interest Payment Date equals
or exceeds $10,000,000, on or before the applicable Regular Record Date for such
Interest Payment Date, interest on such Note shall be paid by wire transfer of
immediately available funds to a bank within the continental United States
designated by such Holder in its request or by direct deposit into the account
of such Holder designated by such Holder in its request if such account is
maintained with the Trustee or any paying agent.
(c) The Trustee shall receive the Senior Note First Mortgage Bonds
from the Company as provided in this Indenture and shall hold the Senior Note
First Mortgage Bonds, and any and all sums payable thereon or with respect
thereto or realized therefrom, in trust for the benefit of the holders of the
Notes, as herein provided. Subject to Article XIII hereof, all payments made by
or on behalf of the Company to the Trustee on a series of Senior Note First
Mortgage Bonds shall be deemed to be a payment by the Company pursuant to this
Section 2.12 and shall be applied by the Trustee to pay, when due, principal of,
premium, if any, and/or interest on the Related Series of Notes and, to the
extent so applied, shall satisfy the Company's obligations on such Notes. The
Company shall cause payment to be made to the Trustee of principal of, premium,
if any, and (if applicable) interest on a series of Senior Note First
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Mortgage Bonds in a manner and at a time that will enable the Trustee to make
payments when due, of the principal of, premium, if any, and interest on the
Related Series of Notes.
Section 2.13 NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE.
(a) If the Company shall establish pursuant to Section 2.05 hereof
that the Notes of a particular series are to be issued in the form of one or
more Global Notes, then the Company shall execute and the Trustee shall, in
accordance with Section 2.05 hereof and the Company Order delivered to the
Trustee thereunder, authenticate and deliver such Global Note or Notes, which
(i) shall represent, shall be denominated in an amount equal to the aggregate
principal amount of, and shall have the same terms as, the outstanding Notes of
such series to be represented by such Global Note or Notes, (ii) shall be
registered in the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"This Note is a Global Note registered in the name of the Depositary (referred
to herein) or a nominee thereof and, unless and until it is exchanged in whole
for the individual Notes represented hereby as provided in the Indenture
referred to below, this Global Note 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 Global Note is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York), to the
Trustee for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
is made to Cede & Co., 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" or such other legend as may be required by
the rules and regulations of the Depositary.
(b) (i) If at any time the Depositary for a Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Note or if at any time the Depositary for the Global Note shall no longer be
eligible or in good standing under the Securities Exchange Act of 1934 or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Note. If a successor Depositary for such
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 2.05(c)(vi) hereof shall no longer be effective
with respect to the series of Notes evidenced by such Global Note and the
Company shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Notes of such series in exchange for
such Global Note, shall authenticate and deliver, individual Notes of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Note in exchange for such
Global Note. The Trustee shall not be charged with knowledge or notice of the
ineligibility of a Depositary unless a responsible officer assigned to and
working in its corporate trustee administration department shall have actual
knowledge thereof.
(ii) (A) The Company may at any time and in its sole discretion determine
that all outstanding (but not less than all) Notes of a series issued or
issuable in the form of one or more Global Notes shall no longer be represented
by such Global Note or Notes. In such event
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the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of individual Notes in exchange for such Global
Note, shall authenticate and deliver individual Notes of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such Global Note or Notes in exchange for such Global Note or Notes.
(B) Within seven days after the occurrence of an Event of
Default with respect to any series of Global Notes, the Company shall execute,
and the Trustee shall authenticate and deliver, Notes of such series in
definitive registered form in any authorized denominations and in aggregate
principal amount equal to the principal amount of such Global Notes in exchange
for such Global Notes.
(iii) In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Notes in definitive registered form in authorized
denominations. Upon the exchange of a Global Note for individual Notes, such
Global Note shall be cancelled by the Trustee. Notes issued in exchange for a
Global Note pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Global Note, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Notes to the Depositary for
delivery to the persons in whose names such Notes are so registered, or if the
Depositary shall refuse or be unable to deliver such Notes, the Trustee shall
deliver such Notes to the persons in whose names such Notes are registered,
unless otherwise agreed upon between the Trustee and the Company, in which event
the Company shall cause the Notes to be delivered to the persons in whose names
such Notes are registered.
(c) Neither the Company, the Trustee, any Authenticating Agent nor
any paying agent shall have any responsibility or liability for any aspect of
the records relating to, or payments made on account of, beneficial ownership
interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
(d) Pursuant to the provisions of this subsection, at the option of
the Trustee (subject to Section 2.04(a) hereof) and upon 30 days' written notice
to the Depositary but not prior to the first Interest Payment Date of the
respective Global Notes, the Depositary shall be required to surrender any two
or more Global Notes which have identical terms, including, without limitation,
identical maturities, interest rates and redemption provisions (but which may
have differing Original Issue Dates) to the Trustee, and the Company shall
execute and the Trustee shall authenticate and deliver to, or at the direction
of, the Depositary a Global Note in principal amount equal to the aggregate
principal amount of, and with all terms identical to, the Global Notes
surrendered thereto and that shall indicate each applicable Original Issue Date
and the principal amount applicable to each such Original Issue Date. The
exchange contemplated in this subsection shall be consummated at least 30 days
prior to any Interest Payment Date applicable to any of the Global Notes
surrendered to the Trustee. Upon any exchange of any Global Note with two or
more Original Issue Dates, whether pursuant to this Section or pursuant to
Section 2.06 or Section 3.03 hereof, the aggregate principal amount of the Notes
with a particular Original Issue Date shall be the same before and after such
exchange, after giving effect to any retirement of Notes and the Original Issue
Dates applicable to such Notes occurring in connection with such exchange.
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ARTICLE III
REDEMPTION OF NOTES
Section 3.01 APPLICABILITY OF ARTICLE. Such of the Notes as are, by
their terms, redeemable prior to their Stated Maturity at the option of the
Company, may be redeemed by the Company at such times, in such amounts and at
such prices as may be specified therein and in accordance with the provisions of
this Article III.
Section 3.02 NOTICE OF REDEMPTION; SELECTION OF NOTES.
(a) The election of the Company to redeem any Notes shall be
evidenced by a Board Resolution which shall be given with notice of redemption
to the Trustee at least 45 days (or such shorter period acceptable to the
Trustee in its sole discretion) prior to the redemption date specified in such
notice.
(b) Notice of redemption to each Holder of Notes to be redeemed as a
whole or in part shall be given by the Trustee, in the manner provided in
Section 15.10 hereof, no less than 30 or more than 60 days prior to the date
fixed for redemption. Any notice which is given in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Noteholder receives the notice. In any case, failure duly to give such notice,
or any defect in such notice, to the Holder of any Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note.
(c) Each such notice shall specify the date fixed for redemption, the
places of redemption and the redemption price (or the method for calculation
thereof) at which such Notes are to be redeemed, and shall state that (subject
to subsection (e) of this section) payment of the redemption price of such Notes
or portion thereof to be redeemed will be made upon surrender of such Notes at
such places of redemption, that interest accrued to the date fixed for
redemption will be paid as specified in such notice, and that from and after
such date interest thereon shall cease to accrue. If less than all of a series
of Notes having the same terms are to be redeemed, the notice shall specify the
Notes or portions thereof to be redeemed. If any Note is to be redeemed in part
only, the notice which relates to such Note shall state the portion of the
principal amount thereof to be redeemed, and shall state that, upon surrender of
such Note, a new Note or Notes having the same terms in aggregate principal
amount equal to the unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a Company Order under Section 2.05
hereof, if less than all of a series of Notes is to be redeemed, the Trustee
shall select in such manner as it shall deem appropriate and fair in its
discretion the particular Notes to be redeemed in whole or in part and shall
thereafter promptly notify the Company in writing of the Notes so to be
redeemed. If less than all of a series of Notes represented by a Global Note is
to be redeemed, the particular Notes or portions thereof of such series to be
redeemed shall be selected by the Depositary for such series of Notes in such
manner as the Depositary shall determine. Notes shall be redeemed only in
denominations of $1,000, PROVIDED that any remaining principal amount of a Note
redeemed in part shall be a denomination authorized under this Indenture.
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(e) If at the time of the mailing of any notice of redemption at the
option of the Company, the Company shall not have irrevocably directed the
Trustee to apply funds then on deposit with the Trustee or held by it and
available to be used for the redemption of Notes to redeem all the Notes called
for redemption, such notice, at the election of the Company, may state that it
is conditional and subject to the receipt of the redemption moneys by the
Trustee on or before the date fixed for redemption and that such notice shall be
of no force and effect unless such moneys are so received on or before such
date.
Section 3.03 PAYMENT OF NOTES ON REDEMPTION; DEPOSIT OF REDEMPTION PRICE.
(a) If notice of redemption for any Notes shall have been given as
provided in Section 3.02 hereof and such notice shall not contain the language
permitted at the Company's option under Section 3.02(e) hereof, such Notes or
portions of Notes called for redemption shall become due and payable on the date
and at the places stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption of such Notes.
Interest on the Notes or portions thereof so called for redemption shall cease
to accrue and such Notes or portions thereof shall be deemed not to be entitled
to any benefit under this Indenture except to receive payment of the redemption
price together with interest accrued thereon to the date fixed for redemption.
Upon presentation and surrender of such Notes at the place of payment specified
in such notice, such Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption.
(b) If notice of redemption shall have been given as provided in
Section 3.02 hereof and such notice shall contain the language permitted at the
Company's option under Section 3.02(e) hereof, such Notes or portions of Notes
called for redemption shall become due and payable on the date and at the places
stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption of such Notes, and interest on the
Notes or portions thereof so called for redemption shall cease to accrue and
such Notes or portions thereof shall be deemed not to be entitled to any benefit
under this Indenture except to receive payment of the redemption price together
with interest accrued thereon to the date fixed for redemption; PROVIDED that,
in each case, the Company shall have deposited with the Trustee or a paying
agent on or prior to 11:00 a.m. New York City time on such redemption date an
amount sufficient to pay the redemption price together with interest accrued to
the date fixed for redemption. Upon the Company making such deposit and, upon
presentation and surrender of such Notes at such a place of payment in such
notice specified, such Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption. If the Company shall not make such
deposit on or prior to the redemption date, the notice of redemption shall be of
no force and effect and the principal on such Notes or specified portions
thereof shall continue to bear interest as if the notice of redemption had not
been given.
(c) No notice of redemption of Notes shall be mailed during the
continuance of any Event of Default, except (1) that, when notice of redemption
of any Notes has been mailed, the Company shall redeem such Notes but only if
funds sufficient for that purpose have prior to the occurrence of such Event of
Default been deposited with the Trustee or a paying agent for
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such purpose, and (2) that notices of redemption of all outstanding Notes may be
given during the continuance of an Event of Default.
(d) Upon surrender of any Note redeemed in part only, the Company
shall execute, and the Trustee shall authenticate, deliver and register, a new
Note or Notes of authorized denominations in aggregate principal amount equal
to, and having the same terms, Original Issue Date or Dates and series as, the
unredeemed portion of the Note so surrendered.
ARTICLE IV
SENIOR NOTE FIRST MORTGAGE BONDS
Section 4.01 DELIVERY OF INITIAL SERIES OF SENIOR NOTE FIRST MORTGAGE
BONDS. Subject to the provisions of Section 4.11 and Article V hereof, the
Company hereby (a) delivers to the Trustee, in connection with the initial
issuance of a series of Notes hereunder in an aggregate principal amount of
$75,000,000, Senior Note First Mortgage Bonds bearing the designation "First
Mortgage Bonds, Senior Notes Series AA" in the aggregate principal amount of
$75,000,000, fully registered in the name of the Trustee, in trust for the
benefit of the Holders from time to time of the Notes of such series issued
under this Indenture as security for any and all obligations of the Company
under the Notes of such Series, including, but not limited to, (1) the full and
prompt payment of the principal of and premium, if any, on the Notes of such
series when and as the same shall become due and payable in accordance with the
terms and provisions of this Indenture or the Notes of such series, at the
Maturity thereof, and (2) the full and prompt payment of any interest on the
Notes of such series when and as the same shall become due and payable in
accordance with the terms and provisions of this Indenture or the Notes of such
series and (b) delivers to the Trustee the certificate of the Expert required by
Section 4.06 hereof (if required).
Section 4.02 RECEIPT. The Trustee acknowledges receipt of the Senior
Note First Mortgage Bonds described in Section 4.01 hereof.
Section 4.03 SENIOR NOTE FIRST MORTGAGE BONDS HELD BY THE TRUSTEE. The
Trustee shall, as the holder of Senior Note First Mortgage Bonds, attend such
meeting or meetings of bondholders under the First Mortgage or, at its option,
deliver its proxy in connection therewith, as relate to matters with respect to
which it is entitled to vote or consent. So long as no Event of Default
hereunder shall have occurred and be continuing, either at any such meeting or
meetings, or otherwise when the consent of the holders of the first mortgage
bonds outstanding under the First Mortgage is sought without a meeting, the
Trustee shall vote all Senior Note First Mortgage Bonds then held by it, or
consent with respect thereto, in accordance with instructions provided in a
certificate of the Company or the Mortgage Trustee, which instructions (a) shall
direct the Trustee to so vote or consent in proportion with the vote or consent
(as of 9:00 a.m. New York City time on the day of such vote or consent) of the
holders of all other first mortgage bonds outstanding under the First Mortgage,
the holders of which are eligible to vote or consent and (b) shall set forth
said proportions; PROVIDED, HOWEVER, that the Trustee shall not so vote in favor
of, or so consent to, any amendment or modification of the First Mortgage which,
if it were an amendment or modification of this Indenture, would require the
consent of Holders, without their prior consent, obtained in the manner
prescribed in Section 13.02, of Holders of Notes which
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would be required under said Section 13.02 for such an amendment or modification
of this Indenture.
Section 4.04 NO TRANSFER OF SENIOR NOTE FIRST MORTGAGE BONDS; EXCEPTIONS.
Except (i) as required to effect an assignment to a successor trustee under this
Indenture, (ii) pursuant to Section 4.05 or Section 4.08 hereof, or (iii) in
compliance with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company, the Trustee
shall not sell, assign or transfer the Senior Note First Mortgage Bonds and the
Company shall issue stop transfer instructions to the Mortgage Trustee and any
transfer agent under the First Mortgage to effect compliance with this Section
4.04.
Section 4.05 DELIVERY TO THE COMPANY OF ALL SENIOR NOTE FIRST MORTGAGE
BONDS. When the obligation of the Company to make payment with respect to the
principal of and premium, if any, and interest on all Senior Note First Mortgage
Bonds shall be satisfied or deemed satisfied pursuant to Section 4.11 or Section
5.01(b) hereof, the Trustee shall, upon written request of the Company and
receipt of the certificate of the Expert described in Section 4.06(b) hereof (if
such certificate is then required by Section 4.06(b) hereof), deliver to the
Company without charge therefor all of the Senior Note First Mortgage Bonds,
together with such appropriate instruments of transfer or release as may be
reasonably requested by the Company. All Senior Note First Mortgage Bonds
delivered to the Company in accordance with this Section 4.05 shall be delivered
by the Company to the Mortgage Trustee for cancellation.
Section 4.06 FAIR VALUE CERTIFICATE.
(a) Upon the delivery by the Company to the Trustee of Senior Note
First Mortgage Bonds pursuant to Section 4.01 or Section 4.09 hereof, the
Company shall simultaneously therewith deliver to the Trustee a certificate of
an Expert (1) stating that it is familiar with the provisions of such Senior
Note First Mortgage Bonds and of this Indenture; (2) stating the principal
amount of such Senior Note First Mortgage Bonds so delivered, the stated
interest rate (or method of calculation of interest) of such Senior Note First
Mortgage Bonds (if any) and the stated maturity date of such Senior Note First
Mortgage Bonds; (3) identifying the Notes being issued contemporaneously
therewith, and (4) stating the fair value to the Company of such Senior Note
First Mortgage Bonds. If the fair value to the Company of the Senior Note First
Mortgage Bonds so delivered, as described in the certificate to be delivered
pursuant to this Section 4.06(a), both (l) is equal to or exceeds (A) $25,000
and (B) 1% of the principal amount of the Notes outstanding at the date of
delivery of such Senior Note First Mortgage Bonds and (2) together with the fair
value to the Company, as described in the certificates to be delivered pursuant
to this Section 4.06(a), of all other Senior Note First Mortgage Bonds delivered
to the Trustee since the commencement of the then current calendar year, is
equal to or exceeds 10% of the principal amount of the Notes outstanding at the
date of delivery of such Senior Note First Mortgage Bonds, then the certificate
required by this Section 4.06(a) shall (1) be delivered by an Expert who shall
be independent of the Company and (2), in addition to the certifications
described above, state the fair value to the Company of all Senior Note First
Mortgage Bonds delivered to the Trustee pursuant to Section 4.09 hereof since
the commencement of the then current year as to which a certificate was not
delivered by an Expert independent of the Company.
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(b) If Senior Note First Mortgage Bonds are delivered or surrendered
to the Company pursuant to Section 4.05 or 4.08 hereof, the Company shall
simultaneously therewith deliver to the Trustee a certificate of an Expert (1)
stating that it is familiar with the provisions of such Senior Note First
Mortgage Bonds and of this Indenture, (2) stating the principal amount of such
Senior Note First Mortgage Bonds so delivered, the stated interest rate (or
method of calculation of interest) of such Senior Note First Mortgage Bonds (if
any) and the stated maturity date of such Senior Note First Mortgage Bonds, (3)
if applicable, identifying the Notes, the payment of the interest on and
principal of which has been discharged hereunder, (4) stating that such delivery
and release will not impair the lien of this Indenture in contravention of the
provisions of this Indenture. If, prior to the Release Date, the fair value of
the Senior Note First Mortgage Bonds so delivered and released, as described in
the certificate to be delivered pursuant to this Section 4.06(b), both (l) is
equal to or exceeds (A) $25,000 and (B) 1% of the principal amount of the
outstanding Notes at the date of release of such Senior Note First Mortgage
Bonds and (2) together with the fair value, as described in the certificates to
be delivered pursuant to this Section 4.06(b), of all other Senior Note First
Mortgage Bonds released from the lien of this Indenture since the commencement
of the then current calendar year, is equal to or exceeds 10% of the principal
amount of the Notes outstanding at the date of release of such Senior Note First
Mortgage Bonds, then the certificate required by this Section 4.06(b) shall be
delivered by an Expert who shall be independent of the Company.
If, in connection with a delivery or release of outstanding Senior Note
First Mortgage Bonds, the Company provides to the Trustee an Opinion of Counsel
stating that the certificate described by this Section 4.06 is not required by
law, such certificate shall not be required to be delivered hereunder in
connection with such delivery or release.
Section 4.07 FURTHER ASSURANCES. The Company, at its own expense, shall
do such further lawful acts and things, and execute and deliver such additional
conveyances, assignments, assurances, agreements, financing statements and
instruments, as may be necessary in order to better assign, assure and confirm
to the Trustee its interest in the Senior Note First Mortgage Bonds and for
maintaining, protecting and preserving such interest.
Section 4.08 EXCHANGE AND SURRENDER OF SENIOR NOTE FIRST MORTGAGE BONDS.
At any time a Note shall cease to be entitled to any lien, benefit or security
under this Indenture pursuant to Section 5.01(b) hereof and the Company shall
have provided the Trustee with notice thereof, the Trustee shall surrender an
equal principal amount of the Related Series of Senior Note First Mortgage
Bonds, subject to the limitations of this Section 4.08, to the Company for
cancellation. The Trustee shall, together with such Senior Note First Mortgage
Bonds, deliver to the Company such appropriate instruments of transfer or
release as the Company may reasonably request. Prior to the surrender required
by this paragraph, the Trustee shall receive from the Company the following, and
(subject to Section 9.01 hereof) shall be fully protected in relying upon, an
Officers' Certificate stating (i) the aggregate outstanding principal amount of
the Senior Note First Mortgage Bonds of the series surrendered by the Trustee,
after giving effect to such surrender, (ii) the aggregate outstanding principal
amount of the Related Series of Notes and (iii) that the surrender of the Senior
Note First Mortgage Bonds will not result in any default under this Indenture.
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The Company shall not be permitted to cause the surrender or exchange of
all or any part of a series of Senior Note First Mortgage Bonds contemplated in
this Section, if, after such surrender or exchange, the aggregate outstanding
principal amount of the Related Series of Notes would exceed the aggregate
outstanding principal amount of such series of Senior Note First Mortgage Bonds
held by the Trustee. Any Senior Note First Mortgage Bonds received by the
Company pursuant to this Section 4.08 shall be delivered to the Mortgage Trustee
for cancellation. Notwithstanding anything herein to the contrary, until the
Release Date, the Company shall preserve and maintain the Lien of this
Indenture, and shall not permit, at any time prior to the Release Date, the
aggregate principal amount of Senior Note First Mortgage Bonds held by the
Trustee to be less than the aggregate amount of Notes Outstanding.
Section 4.09 ACCEPTANCE OF ADDITIONAL SENIOR NOTE FIRST MORTGAGE BONDS.
Upon the issuance of a series of Notes hereunder (other than the initial series
of Notes referred to in Section 4.01 hereof) at any time prior to the Release
Date, the Company shall deliver to the Trustee in trust for the benefit of the
Holders of the Notes as described in Section 4.11 hereof, and the Trustee shall
accept therefor, a Related Series of Senior Note First Mortgage Bonds registered
in the name of the Trustee conforming to the requirements of Section 4.10
hereof.
Section 4.10 TERMS OF SENIOR NOTE FIRST MORTGAGE BONDS. Each series of
Senior Note First Mortgage Bonds delivered to the Trustee pursuant to Section
4.01 or Section 4.09 hereof shall have the same stated maturity date and shall
be in the same aggregate principal amount as, and have redemption provisions
corresponding to, the Related Series of Notes being issued; it being expressly
understood that such Senior Note First Mortgage Bonds may, but need not, bear
interest, any such interest to be payable on the same Interest Payment Dates as
the Related Series of Notes being issued.
Section 4.11 SENIOR NOTE FIRST MORTGAGE BONDS AS SECURITY FOR NOTES.
Until the Release Date and subject to Article V hereof, Senior Note First
Mortgage Bonds delivered to the Trustee, for the benefit of the Holders of the
Notes, shall constitute part of the trust estate and security for any and all
obligations of the Company under the Notes, including, but not limited to (1)
the full and prompt payment of the principal of and premium, if any, on such
Notes when and as the same shall become due and payable in accordance with the
terms and provisions of this Indenture or the Notes, either at the stated
maturity thereof, upon acceleration of the maturity thereof or upon redemption,
and (2) the full and prompt payment of any interest on such Notes when and as
the same shall become due and payable in accordance with the terms and
provisions of this Indenture or the Notes.
Notwithstanding anything in this Indenture to the contrary, from and after
the Release Date, the obligation of the Company to make payment with respect to
the principal of and premium, if any, and interest on the Senior Note First
Mortgage Bonds shall be deemed satisfied and discharged as provided in the
supplemental indenture or indentures to the First Mortgage creating such Senior
Note First Mortgage Bonds and the Senior Note First Mortgage Bonds shall cease
to secure in any manner Notes theretofore or subsequently issued. From and after
the Release Date, any conditions to the issuance of Notes that refer or relate
to Senior Note First Mortgage Bonds or the First Mortgage shall be inapplicable.
Following the Release Date, the Company shall cause the First Mortgage to be
discharged and the Company shall not issue any additional First Mortgage Bonds
or Senior Note First Mortgage Bonds under the First Mortgage.
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The Company shall notify the Trustee promptly of the occurrence of the Release
Date. Notice of the occurrence of the Release Date shall be given by the
Trustee to the Holders of the Notes in the manner provided in Section 15.10
hereof not later than 30 days after the Release Date.
ARTICLE V
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
Section 5.01 SATISFACTION AND DISCHARGE.
(a) If at any time:
(1) the Company shall have paid or caused to be paid the
principal of and premium, if any, and interest on all the outstanding
Notes, as and when the same shall have become due and payable,
(2) the Company shall have delivered to the Trustee for
cancellation all outstanding Notes, or
(3) the Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds the entire amount in
(A) cash, (B) U.S. Government Obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability
of cash, or (C) a combination of cash and U.S. Government Obligations, in
any case sufficient, without reinvestment, as certified by an independent
public accounting firm of national reputation in a written certification
delivered to the Trustee, to pay at maturity or the applicable redemption
date (provided that notice of redemption shall have been duly given or
irrevocable provision satisfactory to the Trustee shall have been duly made
for the giving of any notice of redemption) all outstanding Notes,
including principal and any premium and interest due or to become due to
such date of maturity, as the case may be and, unless all outstanding Notes
are to be due within 90 days of such deposit by redemption or otherwise,
shall also deliver to the Trustee an opinion of counsel expert in federal
income tax matters to the effect that the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or
similar pronouncement by the Internal Revenue Service or that there has
been a change of law (collectively, an "External Tax Pronouncement"), in
either case to the effect that the Holders of the Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance or discharge of the Indenture and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case absent such defeasance or discharge of this
Indenture,
and if, in any such case, (x) the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company and (y) the Company has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel each stating that
all conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with, then this Indenture shall
cease to be of further effect (except as to (i) rights of registration of
transfer and exchange of Notes, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen
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Notes, (iii) rights of Noteholders to receive payments of principal thereof, and
any premium and interest thereon, upon the original stated due dates therefor or
upon the applicable redemption date (but not upon acceleration of maturity) from
the moneys and U.S. Government Obligations held by the Trustee pursuant to
Section 5.02 hereof, (iv) the rights and immunities of the Trustee hereunder,
(v) the rights of the Holders of Notes as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them, (vi)
the obligations of the Company under Sections 6.02 and 6.03 hereof, (vii) the
obligations and rights of the Trustee and the Company under Section 5.04 hereof,
and (viii) the duties of the Trustee with respect to any of the foregoing), and
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by, and its obligations under, the Notes, and the Trustee, on demand
of the Company and at the cost and expense of the Company, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture
and the Trustee shall at the request of the Company return to the Company all
Senior Note First Mortgage Bonds and all other property and money held by it
under this Indenture and determined by it from time to time in accordance with
the certification pursuant to this Section 5.01(a)(3) to be in excess of the
amount required to be held under this Section.
If the Notes are deemed to be paid and discharged pursuant to Section
5.01(a)(3) hereof, within 15 days after those Notes are so deemed to be paid and
discharged, the Trustee shall cause a written notice to be given to each Holder
in the manner provided by Section 15.10 hereof. The notice shall:
(i) state that the Notes are deemed to be paid and discharged;
(ii) set forth a description of any U.S. Government Obligations and cash
held by the Trustee as described above;
(iii) if any Notes will be called for redemption, specify the date or dates
on which those Notes are to be called for redemption.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.06 hereof shall
survive.
If the Notes are deemed paid and discharged pursuant to this Section 5.01,
the obligation of the Company to make payment with respect to the principal of
and premium, if any, and interest on the Senior Note First Mortgage Bonds shall
be satisfied and discharged and the Senior Note First Mortgage Bonds shall cease
to secure the Notes in any manner.
(b) If the Company shall have paid or caused to be paid the principal
of and premium, if any, and interest on any Note, as and when the same shall
have become due and payable or the Company shall have delivered to the Trustee
for cancellation any outstanding Note, such Note shall cease to be entitled to
any lien, benefit or security under this Indenture. Upon a Note of any series
ceasing to be entitled to any lien, benefit or security under this Indenture,
the obligation of the Company to make payment with respect to principal of and
premium, if any, and interest on a principal amount of the Related Series of
Senior Note First Mortgage Bonds equal to the principal amount of such Note
shall be satisfied and discharged and
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such portion of the principal amount of such Senior Note First Mortgage Bonds
shall cease to secure the Notes in any manner.
Section 5.02 DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. Subject to
Section 5.04, all moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 5.01 hereof, shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including the
Company if acting as its own paying agent), to the Holders of the particular
Notes for the payment or redemption of which such moneys and U.S. Government
Obligations have been deposited with the Trustee of all sums due and to become
due thereon for principal and premium, if any, and interest.
Section 5.03 PAYING AGENT TO REPAY MONEYS HELD. Upon the satisfaction
and discharge of this Indenture all moneys then held by any paying agent for the
Notes (other than the Trustee) shall, upon written demand by the Company, be
repaid to the Company or paid to the Trustee, and thereupon such paying agent
shall be released from all further obligations with respect to such moneys.
Section 5.04 RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or
paid to the Trustee for payment of the principal of or any premium or interest
on any Notes and not applied but remaining unclaimed by the Holders of such
Notes for two years after the date upon which the principal of or any premium or
interest on such Notes, as the case may be, shall have become due and payable,
shall be repaid to the Company, subject to applicable abandoned property laws,
by the Trustee on written demand by the Company; and any Holder of any of such
Notes shall thereafter look only to the Company for any payment which such
Holder may be entitled to collect.
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01 PAYMENT OF PRINCIPAL AND INTEREST. The Company covenants
and agrees for the benefit of the Holders of the Notes that it will duly and
punctually pay or cause to be paid the principal of and any premium and
interest, if any, on, each of the Notes at the places, at the respective times
and in the manner provided in such Notes or in this Indenture.
Section 6.02 OFFICES FOR PAYMENTS, ETC. So long as any Notes are
outstanding hereunder, the Company will maintain in the Borough of Manhattan,
The City of New York, State of New York or St. Louis, Missouri an office or
agency where the Notes may be presented for payment, for exchange as in this
Indenture provided and for registration of transfer as in this Indenture
provided.
The Company will maintain in the Borough of Manhattan, The City of New
York, State of New York or St. Louis, Missouri an office or agency where notices
and demands to or upon the Company in respect of the Notes or this Indenture may
be served.
The Company will give to the Trustee prompt written notice of the location
of each such office or agency and of any change of location thereof. In case
the Company shall fail to
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maintain any office or agency required by this Section to be located in the
Borough of Manhattan, The City of New York, State of New York or St. Louis,
Missouri or shall fail to give such notice of the location or of any change in
the location of any of the above offices or agencies, presentations and demands
may be made and notices may be served at the Corporate Trust Office of the
Trustee, and, in such event, the Trustee shall act as the Company's agent to
receive all such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more additional offices
or agencies where the Notes may be presented for payment, for exchange as in
this Indenture provided and for registration of transfer as in this Indenture
provided, and the Company may from time to time rescind any such designation;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any office or agency provided
for in this Section. The Company will give to the Trustee prompt written notice
of any such designation or rescission thereof and of any change in the location
of any such other office or agency.
Section 6.03 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 9.11, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 6.04 PROVISION AS TO PAYING AGENT. The Trustee shall be the
paying agent for the Notes and, at the option of the Company, the Company may
appoint additional paying agents (including without limitation itself). Whenever
the Company shall appoint a paying agent other than the Trustee with respect to
the Notes, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that such paying agent will hold all sums received by it as
such agent for the payment of the principal of or interest, if any, on the
Notes (whether such sums have been paid to it by the Company or by any
other obligor on the Notes) in trust for the benefit of the Holders of the
Notes, or of the Trustee until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(2) that such paying agent will give the Trustee notice of any
failure by the Company (or by any other obligor on Notes) to make any
payment of the principal of, premium if any, or interest on the Notes when
the same shall be due and payable; and
(3) that such paying agent will at any time during the
continuance of any such failure, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such paying
agent.
The Company will, on or prior to each due date of the principal of and any
premium, if any, or interest on the Notes, deposit with the paying agent a sum
sufficient to pay such principal and any premium or interest so becoming due,
such sum to be held in trust for the benefit of the Holders of the Notes
entitled to such principal of and any premium or interest, and (unless such
paying agent is the Trustee) the Company will promptly notify the Trustee of any
failure to take such action.
If the Company shall act as its own paying agent with respect to the Notes,
it will, on or before each due date of the principal of (and premium, if any) or
interest, if any, on the Notes, set aside, segregate and hold in trust for the
benefit of the Holders of the Notes, a sum sufficient to pay such principal (and
premium, if any) or interest, if any, so becoming due until such sums shall be
paid to such Holders or otherwise disposed of as herein provided. The Company
will promptly notify the Trustee of any failure to take such action.
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The Company may at any time pay or cause to be paid to the Trustee all sums
held in trust by it or any paying agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained, 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.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this section is subject to the provisions of
Sections 5.03 and 5.04.
Section 6.05 OPINIONS OF COUNSEL. The Company will cause this Indenture,
any indentures supplemental to this Indenture, and any financing or continuation
statements to be promptly recorded and filed and rerecorded and refiled in such
a manner and in such places, as may be required by law in order fully to
preserve, protect and perfect the security of the Noteholders and all rights of
the Trustee, and shall deliver to the Trustee:
(a) promptly after the execution and delivery of this Indenture and
of any indenture supplemental to this Indenture but prior to the Release Date,
an Opinion of Counsel either stating that, in the opinion of such counsel, this
Indenture or such supplemental indenture and any financing or continuation
statements have been properly recorded and filed so as to make effective and to
perfect the interest of the Trustee intended to be created by this Indenture for
the benefit of the Holders from time to time of the Notes in the Senior Note
First Mortgage Bonds, and reciting the details of such action, or stating that,
in the opinion of such counsel, no such action is necessary to perfect or make
such interest effective and stating what, if any, action of the foregoing
character may reasonably be expected to become necessary prior to the next
succeeding December 1 to maintain, perfect and make such interest effective; and
(b) on or before December 1 of each year, commencing December 1,
1999, and prior to the Release Date, an Opinion of Counsel either stating that
in the opinion of such counsel such action has been taken, since the date of the
most recent Opinion of Counsel furnished pursuant to this Section 6.05(b) or the
first Opinion of Counsel furnished pursuant to Section 6.05(a) hereof, with
respect to the recording, filing, rerecording, or refiling of this Indenture,
each supplemental indenture and any financing or continuation statements, as is
necessary to maintain and perfect the interest of the Trustee intended to be
created by this Indenture for the benefit of the Holders from time to time of
the Notes in the Senior Note First Mortgage Bonds, and reciting the details of
such action, or stating that in the opinion of such counsel no such action is
necessary to maintain and perfect such interest and stating what, if any, action
of the foregoing character may reasonably be expected to become necessary prior
to the next succeeding December 1 to maintain, perfect and make such security
interest effective.
Section 6.06 CERTIFICATES AND NOTICE TO TRUSTEE. The Company shall, on
or before December 1 of each year, commencing December 1, 1999, deliver to the
Trustee a certificate
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from its principal executive officer, principal financial officer or principal
accounting officer covering the preceding calendar year and stating whether or
not, to the knowledge of such Person, the Company has complied with all
conditions and covenants under this Indenture, and, if not, describing in
reasonable detail any failure by the Company to comply with any such conditions
or covenants. For purposes of this Section, compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture. Upon the occurrence of a default (as defined in the First
Mortgage) prior to the Release Date, the Company shall promptly notify the
Trustee of such event.
Section 6.07 RESTRICTIONS ON LIENS.
(a) So long as any Notes are outstanding, the Company will not issue,
assume, guarantee or permit to exist after the Release Date any Debt secured by
any Lien on any Operating Property of the Company, whether owned at the date of
this Indenture or thereafter acquired, without in any such case effectively
securing the outstanding Notes (together with, if the Company shall so
determine, any other Debt of or guaranteed by the Company ranking equally with
the Notes) equally and ratably with such Debt (but only so long as such Debt is
so secured); PROVIDED, HOWEVER, that the foregoing restriction shall not apply
to Debt secured by any of the following:
(i) Liens on any Operating Property existing at the time of acquisition
thereof (which Liens may also extend to subsequent repairs, alterations and
improvements to such Operating Property);
(ii) Liens on operating property of a corporation existing at the time such
corporation is merged into or consolidated with the Company, or at the time of a
sale, lease, or other disposition of the properties of such corporation or a
division thereof as an entirety or substantially as an entirety to the Company;
(iii) Liens on Operating Property to secure all or part of the cost of
acquiring, constructing, developing, or substantially repairing, altering, or
improving such property, or to secure any Debt incurred to provide funds for any
such purpose or for reimbursement of funds previously expended for any such
purpose, provided such Liens are created or assumed contemporaneously with, or
within eighteen (18) months after, such acquisition or the completion of
construction, development, or substantial repair, alteration or improvement;
(iv) Liens in favor of any State, or any department, agency, or
instrumentality or political subdivision of any State, or for the benefit of
holders of securities issued by any such entity (or providers of credit
enhancement with respect to such securities), to secure any Debt (including,
without limitation, obligations of the Company with respect to industrial
development, pollution control or similar revenue bonds) incurred for the
purpose of financing all or any part of the purchase price or the cost of
constructing, developing, or substantially repairing, altering, or improving
Operating Property of the Company;
(v) any extension, renewal or replacement (or successive extensions,
renewals, or replacements), in whole or in part, of any Lien referred to in the
foregoing clauses (i) to (iv), inclusive; PROVIDED, HOWEVER, that the principal
amount of Debt secured thereby and not
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otherwise authorized by said clauses (i) to (iv), inclusive, shall not exceed
the principal amount of Debt, plus any premium or fee payable in connection with
any such extension, renewal, or replacement, so secured at the time of such
extension, renewal, or replacement.
(b) Notwithstanding the provisions of Section 6.07(a), the Company
may issue, assume, or guarantee Debt, or permit to exist after the Release Date
any Debt, in each case, secured by Liens that would otherwise be subject to the
restrictions of Section 6.07(a) up to an aggregate principal amount that,
together with the principal amount of all other Debt of the Company secured by
Liens (other than Liens permitted by Section 6.07(a) that would otherwise be
subject to any of the foregoing restrictions) and the Value of all Sale and
Lease-Back Transactions in existence at such time (other than any Sale and
Lease-Back Transaction that, if such Sale and Lease-Back Transaction had been a
Lien, would have been permitted by Section 6.07(a), other than Sale and
Lease-Back Transactions permitted by Section 6.08 hereof because the commitment
by or on behalf of the purchaser was obtained no later than eighteen (18) months
after the later of events described in (i) or (ii) of Section 6.08 hereof, and
other than Sale and Lease-Back Transactions as to which application of amounts
have been made in accordance with clause (z) of Section 6.08 hereof), does not
at the time exceed fifteen percent (15%) of Capitalization.
(c) If the Company shall issue, assume, or guarantee any Debt secured
by any Lien and if Section 6.07(a) requires that the outstanding Notes be
secured equally and ratably with such Debt, the Company will promptly execute,
at its expense, any instruments necessary to so equally and ratably secure the
outstanding Notes and deliver the same to the Trustee along with:
(i) An Officers' Certificate stating that the covenant of the Company
contained in Section 6.07(a) has been complied with; and
(ii) An Opinion of Counsel to the effect that the Company has complied with
the covenant contained in Section 6.07(a), and that any instruments executed by
the Company in the performance of such covenant comply with the requirements of
such covenant.
In the event that the Company shall hereafter secure outstanding Notes
equally and ratably with any other obligation or indebtedness pursuant to the
provisions of this Section 6.07, the Company will, upon the request of the
Trustee, enter into an indenture or agreement supplemental hereto and to take
such other action, if any, as the Trustee may reasonably request to enable it to
enforce effectively the rights of the Holders of outstanding Notes so secured,
equally and ratably with such other obligation or indebtedness.
Section 6.08 RESTRICTIONS ON SALE AND LEASE-BACK TRANSACTIONS. So long
as any Notes are outstanding, the Company will not enter into or permit to exist
after the Release Date any Sale and Lease-Back Transaction with respect to any
Operating Property (except for transactions involving leases for a term,
including renewals, of not more than 48 months) if the commitment by or on
behalf of the purchaser is obtained more than eighteen (18) months after the
later of (i) the completion of the acquisition, construction, or development of
such Operating Property and (ii) the placing in operation of such Operating
Property or of such Operating Property as constructed, developed, or
substantially repaired, altered, or improved, unless (x) the
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Company would be entitled pursuant to Section 6.07(a) to issue, assume,
guarantee or permit to exist Debt secured by a Lien on such Operating Property
without equally and ratably securing the Notes, (y) the Company would be
entitled pursuant to Section 6.07(b), after giving effect to such Sale and
Lease-Back Transaction, to incur $1.00 of additional Debt secured by Liens
(other than Liens permitted by Section 6.07(a)) or (z) the Company shall apply
or cause to be applied, in the case of a sale or transfer for cash, an amount
equal to the net proceeds thereof (but not in excess of the net book value of
such Operating Property at the date of such sale or transfer) and, in the case
of a sale or transfer otherwise than for cash, an amount equal to the fair value
(as determined by the Board of Directors) of the Operating Property so leased,
to the retirement, within one hundred eighty (180) days after the effective date
of such Sale and Lease-Back Transaction, of Notes (in accordance with their
terms) or other Debt of the Company ranking senior to, or equally with, the
Notes; PROVIDED, HOWEVER, that the amount to be applied to such retirement of
Debt shall be reduced by an amount equal to the principal amount, plus any
premium or fee paid in connection with any redemption in accordance with the
terms of Debt voluntarily retired by the Company within such one hundred eighty
(180) day period, excluding retirement pursuant to mandatory sinking fund or
prepayment provisions and payments at maturity.
Section 6.09 CORPORATE EXISTENCE. Subject to the rights of the Company
under Article XII, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence and the
rights (charter and statutory) and franchises of the Company; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such right or franchise
if, in the judgment of the Company, the preservation thereof is no longer
desirable in the conduct of the business of the Company.
ARTICLE VII
NOTEHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 7.01 COMPANY TO FURNISH NOTEHOLDER LISTS. The Company and any
other obligor on the Notes shall furnish or cause to be furnished to the Trustee
a list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Notes:
(a) semi-annually and not more than 15 days after each Regular Record
Date for each Interest Payment Date that is not a Maturity date, as of such
Regular Record Date, and such list need not include information received after
such date; and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Company of any such request, as of a date not more
than 15 days prior to the time such information is furnished, and such list need
not include information received after such date;
PROVIDED that if and so long as the Trustee shall be the registrar for the
Notes, such list shall not be required to be furnished.
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Section 7.02 PRESERVATION AND DISCLOSURE OF NOTEHOLDER LISTS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of the
Notes (i) contained in the most recent lists furnished to it as provided in
Section 7.01, (ii) received by it in the capacity of registrar for the Notes, if
so acting, and (iii) filed with it within the two preceding years pursuant to
Section 7.04(d)(2). The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
(b) In case three or more Holders of Notes (hereinafter referred to
as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Note for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of Notes
with respect to their rights under this Indenture or under the Notes and such
application is accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section; or
(ii) inform such applicants as to the approximate number of Holders whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of such subsection (a) and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Notes, whose name and address appears in the information
preserved at the time by the Trustee in accordance with the provisions of such
subsection (a) a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met, and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and every Holder of a Note, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of the
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Company or the Trustee shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders of Notes in
accordance with the provisions of subsection (b) of this Section, regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under such subsection (b).
Section 7.03 REPORTS BY THE COMPANY. The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(c) transmit by mail to all Holders of Notes, within 30 days after
the filing thereof with the Trustee in the manner and to the extent provided in
Section 7.04(d), such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
Section 7.04 REPORTS BY THE TRUSTEE.
(a) Annually, not later than August 15 of each year, the Trustee
shall transmit by mail a brief report dated as of such date that complies with
Section 313(a) of the TIA (to the extent required by such Section).
(b) The Trustee shall from time to time transmit by mail brief
reports that comply, both in content and date of delivery, with Section 313(b)
of the TIA (to the extent required by such Section).
(c) A copy of each such report filed pursuant to this section shall,
at the time of such transmission to such Holders, be filed by the Trustee with
each stock exchange upon which any Notes are listed and also with the
Commission. The Company will notify the Trustee promptly in writing upon the
listing of such Notes on any stock exchange.
(d) Reports pursuant to this Section shall be transmitted
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(1) by mail to all Holders of Notes, as their names and
addresses appear in the register for the Notes;
(2) by mail to such Holders of Notes as have, within the two
years preceding such transmission, filed their names and addresses with the
Trustee for such purpose;
(3) by mail, except in the case of reports pursuant to Section
7.04(b) and (c) hereof, to all Holders of Notes whose names and addresses
have been furnished to or received by the Trustee pursuant to Section 7.01
and 7.02(a)(ii) hereof; and
(4) at the time such report is transmitted to the Holders of the
Notes, to each exchange on which Notes are listed and also with the
Commission.
ARTICLE VIII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENTS OF DEFAULT
Section 8.01 EVENTS OF DEFAULT.
(a) If one or more of the following Events of Default shall have
occurred and be continuing:
(1) default in the payment of any installment of interest upon
any of the Notes as and when the same shall become due and payable, and
continuance of such default for a period of sixty (60) days;
(2) default in the payment of the principal of or any premium on
any of the Notes as and when the same shall become due and payable;
(3) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the Company
contained in the Notes or in this Indenture for a period of ninety (90)
days after the date on which written notice specifying such failure,
stating that such notice is a "Notice of Default" hereunder and demanding
that the Company remedy the same, shall have been given to the Company by
the Trustee by registered mail, or to the Company and the Trustee by the
Holders of not less than 33% in aggregate principal amount of the Notes at
the time outstanding;
(4) prior to the Release Date, a default (as defined in the
First Mortgage) has occurred and is continuing; PROVIDED, HOWEVER, that
anything in this Indenture to the contrary notwithstanding, the waiver or
cure of such default under the First Mortgage and the rescission and
annulment of the consequences thereof under the First Mortgage shall
constitute a waiver of the corresponding Event of Default hereunder and a
rescission and annulment of the consequences thereof hereunder.
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(5) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable law, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Company or for any
substantial part of the property of the Company, or ordering the winding up
or liquidation of the affairs of the Company, and such decree or order
shall remain unstayed and in effect for a period of sixty (60) consecutive
days; or
(6) the Company shall commence a voluntary case or proceeding
under any applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect or any other case or proceeding to
be adjudicated a bankrupt or insolvent, or consent to the entry of a decree
or order for relief in an involuntary case under any such 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 law, or consent to the filing
of such petition or to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for any substantial part of the property of the
Company, or make any general assignment for the benefit of creditors, or
the notice by it in writing of its inability to pay its debts generally as
they become due, or the taking of any corporate action by the Company in
furtherance of any such action;
then, unless the principal of and interest on all of the Notes shall have
already become due and payable, either the Trustee or the Holders of a majority
in aggregate principal amount of the Notes then outstanding, by notice in
writing to the Company (and to the Trustee if given by such Holders), may
declare the principal of and interest on all the Notes to be due and payable
immediately and upon any such declaration the same shall become immediately due
and payable, anything in this Indenture or in the Notes contained to the
contrary notwithstanding and, upon the Notes being declared to be due and
payable, the Trustee shall immediately file with the Mortgage Trustee a written
demand for redemption of all Senior Note First Mortgage Bonds to the extent
provided in the applicable provisions of the supplemental indentures to the
First Mortgage.
The foregoing paragraph, however, is subject to the condition that if, at
any time after the principal of and interest on the Notes shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, and
prior to the acceleration of all of the First Mortgage Bonds issued and
outstanding under the First Mortgage, the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest
upon all of the Notes and the principal of and any premium on any and all Notes
which shall have become due otherwise than by acceleration (with interest on
overdue installments of interest, to the extent that payment of such interest is
enforceable under applicable law, and on such principal and applicable premium
at the rate borne by the Notes to the date of such payment or deposit) and all
sums paid or advanced by the Trustee hereunder, the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under
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Section 9.06 hereof, and any and all defaults under this Indenture, other than
the non-payment of principal of and accrued interest on Notes which shall have
become due solely by acceleration of maturity, shall have been cured or waived
(including any defaults under the First Mortgage, as evidenced by notice thereof
from the Mortgage Trustee to the Trustee), then and in every such case such
payment or deposit shall cause an automatic waiver of the Event of Default and
its consequences (including, if given, the written demand for redemption of all
Senior Note First Mortgage Bonds) and shall cause an automatic rescission and
annulment of the acceleration of the Notes; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
(b) If the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceeding had been
taken.
Section 8.02 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE
DEBT.
(a) The Company covenants that if an Event of Default described in
clause (a)(1) or (a)(2) of Section 8.01 hereof shall have occurred and be
continuing, then, upon demand of the Trustee, the Company shall pay to the
Trustee, for the benefit of the Holders of the Notes, the whole amount that then
shall have so become due and payable on all such Notes for principal or
interest, as the case may be, with interest upon the overdue principal and any
premium and (to the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest at the rate borne by
the Notes; and, in addition thereto, such further amounts as shall be sufficient
to cover the costs and expenses of collection, including reasonable compensation
to the Trustee, its agents, attorneys and counsel, any expenses or liabilities
incurred by the Trustee hereunder other than through its negligence or bad
faith. Until such demand is made by the Trustee, the Company may pay the
principal of and interest on the Notes to the Holders, whether or not the Notes
be overdue.
(b) In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, including, prior
to the Release Date, to exercise any rights to that end it may have as a holder
of Senior Note First Mortgage Bonds, and may enforce any such judgment or final
decree against the Company or any other obligor on the Notes and collect in the
manner provided by law out of the property of the Company or any other obligor
on such series of Notes wherever situated, the moneys adjudged or decreed to be
payable.
(c) In case there shall be pending proceedings relative to the
Company or any other obligor upon the Notes under Title 11 of the United States
Code or any other applicable Federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the
Company or such other obligor,
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or to the creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of the Notes 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 pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(1) to file and prove a claim or claims for the whole amount of
the principal and interest owing and unpaid in respect of the Notes, and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including, prior to the Release
Date, any claims of the Trustee as holder of Senior Note First Mortgage
Bonds and including any amounts due to the Trustee under Section 9.06
hereof) and of the Noteholders allowed in any judicial proceedings relative
to the Company or such other obligor, or to the creditors or property of
the Company or such other obligor; and
(2) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Noteholders and of the Trustee on their
behalf; and any trustee, receiver, liquidator, custodian or other similar
official is hereby authorized by each of the Noteholders to make payments
to the Trustee, and, in the event that the Trustee shall consent to the
making of the payments directly to the Noteholders, to pay to Trustee such
amounts due pursuant to Section 9.06 hereof.
(d) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes of any series 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 except to vote for the election of a trustee in bankruptcy or similar
person.
(e) All rights of action and of asserting claims under this
Indenture, or under any of the Notes may be prosecuted and enforced by the
Trustee without the possession of any of the Notes or the production thereof at
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee and its
agents, attorneys and counsel, shall be for the ratable benefit of the Holders
of the Notes in respect of which such action was taken.
(f) In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party), the Trustee shall be held to represent all
the Holders of the Notes in respect to which action was taken, and it shall not
be necessary to make any Holders of such Notes parties to any such proceedings.
Section 8.03 APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee with respect to any of the Notes pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the
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several Notes, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid.
FIRST: To the payment of all amounts due to the Trustee pursuant to Section
9.06 hereof;
SECOND: In case the principal of the outstanding Notes in respect of which
such moneys have been collected shall not have become due and be unpaid, to the
payment of interest on the Notes, in the order of the maturity of the
installments of such interest, with interest (to the extent allowed by law) upon
the overdue installments of interest at the rate borne by the Notes, such
payments to be made ratably to the persons entitled thereto, and then to the
payment to the Holders entitled thereto of the unpaid principal of and
applicable premium on any of the Notes which shall have become due (other than
Notes previously called for redemption for the payment of which moneys are held
pursuant to the provisions of this Indenture), whether at stated maturity or by
redemption, in the order of their due dates, beginning with the earliest due
date, and if the amount available is not sufficient to pay in full all Notes due
on any particular date, then to the payment thereof ratably, according to the
amounts of principal and applicable premium due on that date, to the Holders
entitled thereto, without any discrimination or privilege;
THIRD: In case the principal of the outstanding Notes in respect of which
such moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the
Notes for principal and any premium and interest thereon, with interest on the
overdue principal and any premium and (to the extent allowed by law) upon
overdue installments of interest at the rate borne by the Notes; and in case
such moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Notes, then to the payment of such principal and any premium and
interest without preference or priority of principal and any premium over
interest, or of interest over principal and any premium or of any installment of
interest over any other installment of interest, or of any Note over any other
Note, ratably to the aggregate of such principal and any premium and accrued and
unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or its
successors or assigns, or to whomsoever may lawfully be entitled to the same, or
as a court of competent jurisdiction may determine.
Section 8.04 LIMITATIONS ON SUITS BY NOTEHOLDERS.
(a) No Holder of any Note shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of an Event of Default with respect to such Note and of the continuance
thereof, as hereinabove provided, and unless also Noteholders of a majority in
aggregate principal amount of the Notes then outstanding affected by such Event
of Default shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after
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its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by the taker and Holder of every
Note with every other taker and Holder and the Trustee, that no one or more
Holders of Notes shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder of Notes, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Notes. For the protection and enforcement of
the provisions of this Section, each and every Noteholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
(b) Notwithstanding any other provision in this Indenture, however,
the rights of any Holder of any Note to receive payment of the principal of and
any premium and interest on such Note, on or after the respective due dates
expressed in such Note or on the applicable redemption date, or to institute
suit for the enforcement of any such payment on or after such respective dates
are absolute and unconditional, and shall not be impaired or affected without
the consent of such Holder.
Section 8.05 SUITS FOR ENFORCEMENT. In case an Event of Default has
occurred, has not been waived and is continuing, hereunder the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture, including, prior to the Release Date, its rights as holder of the
Senior Note First Mortgage Bonds, by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights,
either by suit in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted to it
under this Indenture, or to enforce any other legal or equitable right vested in
the Trustee by this Indenture or by law.
Section 8.06 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER
OF DEFAULT. No right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Notes is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Notes to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 8.04, every right and power given by this Indenture or by law to the
Trustee or to the Holders of Notes may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Holders of Notes,
as the case may be.
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Section 8.07 DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY
OF NOTEHOLDERS.
(a) The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding shall have the right to direct the time, method,
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee; PROVIDED, that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture; and PROVIDED FURTHER that (subject to Section 9.01 hereof)
the Trustee shall have the right to decline to follow any such direction if the
Trustee being advised by counsel determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors or trustees, executive committee, or a trust committee of directors
or trustees or responsible officers shall determine that the action or
proceeding so directed would involve the Trustee in personal liability. Nothing
in this Indenture shall impair the right of the Trustee in its discretion to
take any action deemed proper by the Trustee and which is not inconsistent with
such direction or directions by Noteholders.
(b) The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding may on behalf of all of the Holders of the Notes
waive any past default or Event of Default hereunder and its consequences except
a default in the payment of principal of or any premium or interest on the
Notes. Upon any such waiver the Company, the Trustee and the Holders of the
Notes shall be restored to their former positions and rights hereunder,
respectively, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Upon any such
waiver, such default shall cease to exist and be deemed to have been cured and
not to be continuing, and any Event of Default arising therefrom shall be deemed
to have been cured and not to be continuing, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Section 8.08 NOTICE OF DEFAULT. The Trustee shall, within 90 days after
the occurrence of a default with respect to the Notes, give to all Holders of
the Notes, in the manner provided in Section 15.10, notice of such default known
to the Trustee, unless such default shall have been cured or waived before the
giving of such notice, the term "default" for the purpose of this Section 8.08
being hereby defined to be any event which is or after notice or lapse of time
or both would become an Event of Default; PROVIDED that, except in the case of
default in the payment of the principal of or any premium or interest on any of
the Notes, or in the payment of any sinking or purchase fund installments, the
Trustee shall be protected in withholding such notice if and so long as its
board of directors or trustees, executive committee, or a trust committee of
directors or trustees or responsible officers in good faith determines that the
withholding of such notice is in the interests of the Holders of the Notes.
Section 8.09 UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each Holder of any Note by 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
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claims or defenses made by such party litigant; but this Section 8.09 shall not
apply to any suit instituted by the Trustee, or to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than 10% in
principal amount of the Notes outstanding, or to any suit instituted by any
Noteholder for the enforcement of the payment of the principal of or any premium
or interest on any Note on or after the due date expressed in such Note or the
applicable redemption date.
Section 8.10 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In
case the Trustee or any Holder shall have proceeded to enforce any right under
this Indenture and such proceedings 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, the Company, the Trustee and the
Holders shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee and
the Holders shall continue as though no such proceedings had been taken.
Section 8.11 DEFAULTS UNDER THE FIRST MORTGAGE. In addition to every
other right and remedy provided herein, the Trustee may exercise any right or
remedy available to the Trustee in its capacity as owner and holder of Senior
Note First Mortgage Bonds which arises as a result of a default under the First
Mortgage whether or not an Event of Default under this Indenture shall then have
occurred and be continuing.
Section 8.12 WAIVER OF USURY, STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. If an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
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(1) prior to the occurrence of any Event of Default and after
the curing or waiving of all Events of Default which may have occurred
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(B) in the absence of bad faith or actual knowledge on the part
of the Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
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;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction, pursuant to this Indenture, of the Holders of a majority in
principal amount of the Notes, including, but not limited to, Section 8.07
hereof 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.
Section 9.02 RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as otherwise
provided in Section 9.01 hereof:
(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, consent, order, note 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, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or 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
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders,
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pursuant to this Indenture, unless such Noteholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by such exercise;
(e) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, note or other paper or document, unless
requested in writing to do so by the Holders of at least a majority in principal
amount of the then outstanding Notes; PROVIDED that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
this Indenture, the Trustee may require reasonable indemnity against such
expense or liability as a condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents or attorneys;
PROVIDED that the Trustee shall not be liable for the conduct or acts of any
such agent or attorney that shall have been appointed in accordance herewith
with due care.
Section 9.03 NO RESPONSIBILITY FOR RECITALS, ETC. The recitals contained
herein and in the Notes (except in the certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with this Indenture.
Section 9.04 TRUSTEE, AUTHENTICATING AGENT, PAYING AGENT OR REGISTRAR MAY
OWN NOTES. The Trustee and any Authenticating Agent or paying agent in its
individual or other capacity, may become the owner or pledgee of Notes with the
same rights it would have if it were not Trustee, Authenticating Agent or paying
agent.
Section 9.05 MONEYS TO BE HELD IN TRUST. Subject to Section 5.04 hereof,
all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee may allow and credit to the Company interest on any money received
hereunder at such rate, if any, as may be agreed upon by the Company and the
Trustee from time to time as may be permitted by law.
Section 9.06 COMPENSATION AND EXPENSES OF TRUSTEE. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any law in
regard to the compensation of a trustee
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of an express trust), and the Company shall pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and
agents, including any Authenticating Agents, and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also covenants to indemnify the Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of or
in connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim or liability. The
obligations of the Company under this Section 9.06 to compensate the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Notes upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the benefit
of the Holders of any particular Notes.
Section 9.07 OFFICERS' CERTIFICATE AS EVIDENCE. Whenever in the
administration of this Indenture, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to the taking, suffering
or omitting of any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee, and
such Officers' Certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under this Indenture in reliance thereon.
Section 9.08 CONFLICTING INTEREST OF TRUSTEE. The Trustee shall be
subject to and shall comply with the provisions of Section 310(b) of the TIA.
Nothing in this Indenture shall be deemed to prohibit the Trustee or the Company
from making any application permitted pursuant to such section.
Section 9.09 EXISTENCE AND ELIGIBILITY OF TRUSTEE. There shall at all
times be a Trustee hereunder which Trustee shall at all times be a corporation
organized and doing business under the laws of the United States or any State
thereof or of the District of Columbia having a combined capital and surplus of
at least $250,000,000 and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal
or State authorities. Such corporation shall have its principal place of
business in the City of St. Louis, Missouri or the Borough of Manhattan, The
City of New York, State of New York, if there be such a corporation in such
location willing to act upon reasonable and customary terms and conditions. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid authority, then for the purposes of
this Section 9.09, the combined capital and surplus shall be deemed to be as set
forth in its most recent report of condition so published. No obligor upon the
Notes or Person directly or indirectly controlling, controlled by, or under
common control with such obligor shall serve as Trustee. If at any time the
Trustee shall cease to be eligible in accordance with this Section 9.09, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 9.10 hereof.
Section 9.10 RESIGNATION OR REMOVAL OF TRUSTEE.
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(a) Pursuant to the provisions of this Article, the Trustee may at
any time resign and be discharged of the trusts created by this Indenture by
giving written notice to the Company specifying the day upon which such
resignation shall take effect, and such resignation shall take effect
immediately upon the later of the appointment of a successor trustee and such
day.
(b) Any Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with such Trustee and signed and
acknowledged by the Holders of a majority in principal amount of the then
outstanding Notes or by their attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is continuing,
and no event has occurred and is continuing that, with the giving of notice or
the lapse of time or both, would become an Event of Default, the Company may
remove any Trustee upon written notice to the Holder of each Note outstanding
and the Trustee and appoint a successor Trustee meeting the requirements of
Section 9.09. The Company or the successor Trustee shall give notice to the
Holders, in the manner provided in Section 15.10, of such removal and
appointment within 30 days of such removal and appointment.
(d) If at any time (i) the Trustee shall cease to be eligible in
accordance with Section 9.09 hereof and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide Holder
for at least six months, (ii) the Trustee shall fail to comply with Section 9.08
hereof after written request therefor by the Company or any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or 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 the Trustee may be removed forthwith by an instrument or
concurrent instruments in writing filed with the Trustee and either:
(1) signed by the President or any Vice President of the Company
and attested by the Secretary or an Assistant Secretary of the Company; or
(2) signed and acknowledged by the Holders of a majority in
principal amount of outstanding Notes or by their attorneys in fact duly
authorized.
(e) Any resignation or removal of the Trustee shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 9.11 hereof.
Section 9.11 APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) If at any time the Trustee shall resign or be removed, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee.
(b) The Company shall provide written notice of its appointment of a
Successor Trustee to the Holder of each Note outstanding following any such
appointment.
(c) If no appointment of a successor Trustee shall be made pursuant
to Section 9.11(a) hereof within 60 days after appointment shall be required,
any Noteholder or the resigning Trustee may apply to any court of competent
jurisdiction to appoint a successor
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Trustee. Said court may thereupon after such notice, if any, as such court may
deem proper and prescribe, appoint a successor Trustee.
(d) Any Trustee appointed under this Section 9.11 as a successor
Trustee shall be a bank or trust company eligible under Section 9.09 hereof and
qualified under Section 9.08 hereof.
Section 9.12 ACCEPTANCE BY SUCCESSOR TRUSTEE.
(a) Any successor Trustee appointed as provided in Section 9.11
hereof shall execute, acknowledge and deliver to the Company and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein; but nevertheless, on the written request of the Company
or of the successor Trustee, the Trustee ceasing to act shall, upon payment of
any amounts then due it pursuant to Section 9.06 hereof, execute and deliver an
instrument transferring to such successor Trustee all the rights and powers of
the Trustee so ceasing to act, including all right, title, and interest in the
Senior Note First Mortgage Bonds. Upon request of any such successor Trustee,
the Company shall execute any and all instruments in writing in order more fully
and certainly to vest in and confirm to such successor Trustee all such rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such Trustee to secure any amounts
then due it pursuant to Section 9.06 hereof.
(b) No successor Trustee shall accept appointment as provided in this
Section 9.12 unless at the time of such acceptance such successor Trustee shall
be qualified under Section 9.08 hereof and eligible under Section 9.09 hereof.
(c) Upon acceptance of appointment by a successor Trustee as provided
in this Section 9.12, the successor Trustee shall mail notice of its succession
hereunder to all Holders of Notes as the names and addresses of such Holders
appear on the registry books.
Section 9.13 SUCCESSION BY MERGER, ETC.
(a) 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided such corporation shall be otherwise qualified and
eligible under this Article.
(b) If at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name
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of any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificates shall have the full force which it is anywhere in
the Notes or in this Indenture provided that the certificates of the Trustee
shall have; provided that the right to adopt the certificate of authentication
of any predecessor Trustee or authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 9.14 LIMITATIONS ON RIGHTS OF TRUSTEE AS A CREDITOR. The Trustee
shall be subject to, and shall comply with, the provisions of Section 311 of the
TIA.
Section 9.15 AUTHENTICATING AGENT.
(a) There may be one or more Authenticating Agents appointed by the
Trustee with the written consent of the Company, with power to act on its behalf
and subject to the direction of the Trustee in the authentication and delivery
of Notes in connection with transfers and exchanges under Sections 2.06, 2.07,
2.08, 2.13, 3.03, and 13.04 hereof, as fully to all intents and purposes as
though such Authenticating Agents had been expressly authorized by those
Sections to authenticate and deliver Notes. For all purposes of this Indenture,
the authentication and delivery of Notes by any Authenticating Agent pursuant to
this Section 9.15 shall be deemed to be the authentication and delivery of such
Notes "by the Trustee." Any such Authenticating Agent shall be a bank or trust
company or other Person of the character and qualifications set forth in Section
9.09 hereof.
(b) Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 9.15, without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent or such successor
corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination 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
any Authenticating Agent shall cease to be eligible under this Section 9.15, the
Trustee may, with the written consent of the Company, appoint a successor
Authenticating Agent, and upon so doing shall give written notice of such
appointment to the Company and shall mail, in the manner provided in Section
15.10, notice of such appointment to the Holders of Notes.
(d) The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services, and the Trustee shall be
entitled to be reimbursed for such payments, in accordance with Section 9.06
hereof.
(e) Sections 9.02, 9.03, 9.06, 9.07 and 9.09 hereof shall be
applicable to any Authenticating Agent.
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ARTICLE X
CONCERNING THE NOTEHOLDERS
Section 10.01 ACTION BY NOTEHOLDERS. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Notes may take any action, the fact that at the time of taking any
such action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Noteholders in person or by agent or proxy appointed in
writing, (b) by the record of such Noteholders voting in favor thereof at any
meeting of Noteholders duly called and held in accordance with Article XI
hereof, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Noteholders.
Section 10.02 PROOF OF EXECUTION BY NOTEHOLDERS.
(a) Subject to Sections 9.01, 9.02 and 11.05 hereof, proof of the
execution of any instruments by a Noteholder or the agent or proxy for such
Noteholder shall be sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall
be satisfactory to the Trustee. The ownership of Notes shall be proved by the
register for the Notes maintained by the Trustee.
(b) The record of any Noteholders' meeting shall be proven in the
manner provided in Section 11.06 hereof.
Section 10.03 PERSONS DEEMED ABSOLUTE OWNERS. Subject to Sections 2.04(f)
and 10.01 hereof, the Company, the Trustee, any paying agent and any
Authenticating Agent shall deem the person in whose name any Note shall be
registered upon the register for the Notes to be, and shall treat such person
as, the absolute owner of such Note (whether or not such Note shall be overdue)
for the purpose of receiving payment of or on account of the principal and
premium, if any, and interest on such Note, and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Authenticating
Agent shall be affected by any notice to the contrary. All such payments shall
be valid and effectual to satisfy and discharge the liability upon any such Note
to the extent of the sum or sums so paid.
Section 10.04 COMPANY-OWNED NOTES DISREGARDED. In determining whether the
Holders of the requisite aggregate principal amount of outstanding Notes have
concurred in any direction, consent or waiver under this Indenture, Notes that
are owned by the Company or any other obligor on the Notes or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Notes shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; PROVIDED that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Notes which the Trustee knows are so owned shall be so disregarded. Notes
so owned which have been pledged in good faith to third parties may be regarded
as outstanding for the purposes of this Section 10.04 if the pledgee shall
establish the pledgee's right to take action with respect to such Notes and that
the pledgee is not a person directly or indirectly controlling or controlled by
or under direct or indirect common control with
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the Company or any such other obligor. In the case of a dispute as to such
right, the Trustee may rely upon an Opinion of Counsel and an Officers'
Certificate to establish the foregoing.
Section 10.05 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. Except as may
be otherwise required in the case of a Global Note by the applicable rules and
regulations of the Depositary, at any time prior to the taking of any action by
the Holders of the percentage in aggregate principal amount of the Notes
specified in this Indenture in connection with such action, any Holder of a
Note, which has been included in the Notes the Holders of which have consented
to such action may, by filing written notice with the Trustee at the corporate
trust office of the Trustee and upon proof of ownership as provided in Section
10.02(a) hereof, revoke such action so far as it concerns such Note. Except as
aforesaid, any such action taken by the Holder of any Note shall be conclusive
and binding upon such Holder and upon all future Holders and owners of such Note
and of any Notes issued in exchange, substitution or upon registration of
transfer therefor, irrespective of whether or not any notation thereof is made
upon such Note or such other Notes.
Section 10.06 RECORD DATE FOR NOTEHOLDER ACTS. If the Company shall
solicit from the Noteholders 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 Noteholders
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 the record
date, but only the Noteholders of record at the close of business on the record
date shall be deemed to be Noteholders for the purpose of determining whether
Holders of the requisite aggregate principal amount of outstanding Notes have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other act, and for that purpose the
outstanding Notes shall be computed as of the record date; PROVIDED that no such
request, demand, authorization, direction, notice, consent, waiver or other act
by the Noteholders on the record date shall be deemed effective unless it shall
become effective pursuant to this Indenture not later than six months after the
record date. Any such record date shall be at least 30 days prior to the date of
the solicitation to the Noteholders by the Company.
ARTICLE XI
NOTEHOLDERS' MEETING
Section 11.01 PURPOSES OF MEETINGS. A meeting of Noteholders may be
called at any time and from time to time pursuant to this Article XI for any of
the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any Event of
Default hereunder and its consequences, or to take any other action authorized
to be taken by Noteholders pursuant to Article XIII;
(b) to remove the Trustee pursuant to Article IX;
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(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 13.02 hereof; or
(d) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the Notes, as the
case may be, under any other provision of this Indenture or under applicable
law.
Section 11.02 CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time
call a meeting of Holders of Notes to take any action specified in Section 11.01
hereof, to be held at such time and at such place as the Trustee shall
determine. Notice of every such meeting of Noteholders, 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 to Holders of the Notes that may be
affected by the action proposed to be taken at such meeting in the manner
provided in Section 15.10 hereof. Such notice shall be given not less than 20
nor more than 90 days prior to the date fixed for such meeting.
Section 11.03 CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS. If at any time
the Company, pursuant to a Board Resolution, or the Holders of at least 10% in
aggregate principal amount of the Notes then outstanding, shall have requested
the Trustee to call a meeting of Noteholders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Noteholders may determine the
time and the place for such meeting and may call such meeting to take any action
authorized in Section 11.01 hereof, by giving notice thereof as provided in
Section 11.02 hereof.
Section 11.04 QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meetings of Noteholders a Person shall (a) be a Holder of one or more Notes
affected by the action proposed to be taken or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more such Notes. The only
Persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives (including employees) of the Trustee and its
counsel and any representatives (including employees) of the Company and its
counsel.
Section 11.05 REGULATIONS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Noteholders in regard to proof of the holding of Notes 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 think fit.
(b) 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 the Noteholders as provided in Section 11.03 hereof, in which
case the Company or Noteholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent
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chairman and a permanent secretary of the meeting shall be elected by the
Holders of a majority in aggregate principal amount of the Notes present in
person or by proxy at the meeting.
(c) Subject to Section 10.04 hereof, at any meeting each Noteholder
or proxy shall be entitled to one vote for each $1,000 principal amount of Notes
held or represented by such Noteholder; PROVIDED that no vote shall be cast or
counted at any meeting in respect of any Note determined to be not outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Notes held by such chairman or instruments in writing as aforesaid duly
designating such chairman as the person to vote on behalf of other Noteholders.
At any meeting of Noteholders duly called pursuant to Section 11.02 or 11.03
hereof, the presence of persons holding or representing Notes in an aggregate
principal amount sufficient to take action on any business for the transaction
for which such meeting was called shall constitute a quorum. Any meeting of
Noteholders duly called pursuant to Section 11.02 or 11.03 hereof may be
adjourned from time to time by the Holders of a majority in aggregate principal
amount of the Notes present in person or by proxy at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 11.06 VOTING. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballots on which shall be subscribed
the signatures of the Holders of Notes or of their representatives by proxy and
the principal amount of Notes 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 in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of such meeting of Noteholders 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 11.02 hereof. The record shall show the aggregate principal amount of
the Notes voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee and the Trustee shall have
the ballots taken at the meeting attached to such duplicate. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
Section 11.07 RIGHTS OF TRUSTEE OR NOTEHOLDERS NOT DELAYED. Nothing in
this Article XI shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Noteholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the Holders
of Notes under any of the provisions of this Indenture or of the Notes.
ARTICLE XII
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
Section 12.01 COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS. The
Company shall not consolidate with or merge into any other corporation or sell
or otherwise dispose of its
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properties as or substantially as an entirety to any Person unless the Company
has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer and the
supplemental indenture referred to in clause (b) below comply with this Article
XII and that all conditions precedent herein provided for have been complied
with, and the corporation formed by such consolidation or into which the Company
is merged or the Person which receives such properties pursuant to such sale,
transfer or other disposition (a) shall be a corporation organized and existing
under the laws of the United States of America, any state thereof or the
District of Columbia; (b) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably satisfactory
to the Trustee, the due and punctual payment of the principal of and premium and
interest on all of the Notes and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed and (c) if such
consolidation, merger, sale, transfer or other disposition occurs prior to the
Release Date, shall expressly assume, by an indenture supplemental to the First
Mortgage, executed and delivered to the Mortgage Trustee, the due and punctual
payment of the principal of and premium and interest on all of the Senior Note
First Mortgage Bonds and the performance of every covenant of the First Mortgage
on the part of the Company to be performed or observed.
Anything in this Indenture to the contrary notwithstanding, the conveyance
or other transfer by the Company of (a) all or any portion of its facilities for
the generation of electric energy, (b) all of its facilities for the
transmission of electric energy or (c) all of its facilities for the
distribution of natural gas, in each case considered alone or in any combination
with properties described in any other clause, shall in no event be deemed to
constitute a conveyance or other transfer of all the properties of the Company,
as or substantially as an entirety. The character of particular facilities
shall be determined in accordance with the Uniform System of Accounts prescribed
for public utilities and licensees subject to the Federal Power Act, as amended,
to the extent applicable.
Section 12.02 SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
or merger, or any sale, transfer or other disposition of the properties of the
Company substantially as an entirety in accordance with Section 12.01 hereof,
the successor corporation formed by such consolidation or into which the Company
is merged or the Person to which such sale, transfer or other disposition 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 corporation or Person had been named as the Company herein and the
Company shall be released from all obligations hereunder.
ARTICLE XIII
SUPPLEMENTAL INDENTURES
Section 13.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
(a) The Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
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(1) to make such provision in regard to matters or questions
arising under this Indenture as may be necessary or desirable, and not
inconsistent with this Indenture or prejudicial to the interests of the
Holders in any material respect, for the purpose of supplying any omission,
curing any ambiguity, or curing, correcting or supplementing any defective
or inconsistent provision;
(2) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Note outstanding created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision or such change or elimination is applicable only to Notes
issued after the effective date of such change or elimination;
(3) to establish the form of Notes as permitted by Section 2.01
hereof or to establish or reflect any terms of any Note determined pursuant
to Section 2.05 hereof;
(4) to evidence the succession of another corporation to the
Company as permitted hereunder, and the assumption by any such successor of
the covenants of the Company herein and in the Notes;
(5) to grant to or confer upon the Trustee for the benefit of
the Holders any additional rights, remedies, powers or authority;
(6) to permit the Trustee to comply with any duties imposed upon
it by law;
(7) to specify further the duties and responsibilities of, and
to define further the relationships among, the Trustee, any Authenticating
Agent and any paying agent, and to evidence the succession of a successor
Trustee as permitted hereunder;
(8) to add to the covenants of the Company for the benefit of
the Holders of one or more series of Notes, to add to the security for the
Notes, to surrender a right or power conferred on the Company herein or to
add any Event of Default with respect to one or more series of Notes;
(9) to add provisions permitting the Company to be released with
respect to one or more series of outstanding Notes from its obligations
under Sections 6.07, 6.08 or Article XII (and providing that no Event of
Default shall be deemed to have occurred as a result of the Company's
noncompliance with such obligations) if the Company makes the deposit of
cash and/or U.S. Government obligations with respect to such series of
Notes required by Section 5.01 and otherwise complies with the requirements
of such Section (except that the opinion of counsel referred to in Section
5.01(a)(3) need not be based on an External Tax Pronouncement);
(10) to comply with the Company's obligations under Section 6.07;
and
(11) to make any other change that is not prejudicial to the
Holders.
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(b) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
(c) Any supplemental indenture authorized by this Section 13.01 may
be executed by the Company and the Trustee without the consent of the Holders of
any of the Notes at the time outstanding, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
(a) With the consent (evidenced as provided in Section 10.01 hereof)
of the Holders of a majority in aggregate principal amount of the Notes at the
time outstanding, the Company, when authorized by Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or of any supplemental indenture or of modifying or waiving in any manner the
rights of the Noteholders; provided that no such supplemental indenture shall:
(1) change the Stated Maturity of any Note, or reduce the rate
(or change the method of calculation thereof) or extend the time of payment
of interest thereon, or reduce the principal amount thereof or any premium
thereon, or change the coin or currency in which the principal of any Note
or any premium or interest thereon is payable, or change the date on which
any Note may be redeemed or adversely affect the rights of the Noteholders
to institute suit for the enforcement of any payment of principal of or any
premium or interest on any Note, or impair the interest hereunder of the
Trustee in the Senior Note First Mortgage Bonds, or prior to the Release
Date, reduce the principal amount of any series of Senior Note First
Mortgage Bonds to an amount less than the principal amount of the Related
Series of Notes or alter the payment provisions of such Senior Note First
Mortgage Bonds in a manner adverse to the Holders of the Notes, in each
case without the consent of the Holder of each Note so affected; or
(2) modify this Section 13.02(a) or reduce the aforesaid
percentage of Notes, the Holders of which are required to consent to any
such supplemental indenture or to reduce the percentage of Notes, the
Holders of which are required to waive Events of Default, in each case,
without the consent of the Holders of all of the Notes then outstanding.
(b) Upon the request of the Company, accompanied by a copy of the
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of Noteholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
55
<PAGE>
(c) A supplemental indenture which changes, waives or eliminates any
covenant or other provision of this Indenture (or any supplemental indenture)
which has expressly been included solely for the benefit of one or more series
of Notes, or which modifies the rights of the Holders of Notes of such series
with respect to such covenant or provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Notes of any other series.
(d) It shall not be necessary for the consent of the Holders of Notes
under this Section 13.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
(e) Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to this Section 13.02, the Trustee shall
give notice in the manner provided in Section 15.10 hereof, setting forth in
general terms the substance of such supplemental indenture, to all Noteholders.
Any failure of the Trustee to give such notice or any defect therein shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
Section 13.03 COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL
INDENTURES. Any supplemental indenture executed pursuant to this Article XIII
shall comply with the TIA. Upon the execution of any supplemental indenture
pursuant to this Article XIII, the Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Noteholders shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 13.04 NOTATION ON NOTES. Notes authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article XIII may
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 Notes so
modified as approved by the Trustee and the Board of Directors with respect to
any modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Notes then outstanding.
Section 13.05 EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TRUSTEE. The Trustee, subject to Sections 9.01 and 9.02 hereof, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article XIII.
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS. No
recourse for the payment of the principal of or any premium or interest on any
Note or any Senior Note First
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<PAGE>
Mortgage Bond, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company, contained in this Indenture, the First Mortgage or in any supplemental
indenture, or in any Note or in any Senior Note First Mortgage Bond, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Notes.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the
covenants, stipulations, promises and agreements made by the Company in this
Indenture shall bind its successors and assigns whether so expressed or not.
Section 15.02 OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful successor of the
Company.
Section 15.03 NOTICES. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by the Trustee or
by the Noteholders on the Company may be given or served by being deposited
postage prepaid in a post office letter box addressed (until another address is
filed by the Company with the Trustee) at the principal executive offices of the
Company, to the attention of the Secretary. Any notice, direction, request or
demand by any Noteholder, the Company or the Mortgage Trustee to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the corporate trust office of the
Trustee, Attention: Corporate Trust Department.
Section 15.04 GOVERNING LAW. This Indenture and each Note shall be
governed by and deemed to be a contract under, and construed in accordance with,
the laws of the State of New York, and for all purposes shall be construed in
accordance with the laws of said State, except as may otherwise be required by
mandatory provisions of law.
Section 15.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
(a) Upon any application or demand by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) 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 have been complied with.
57
<PAGE>
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificates delivered pursuant
to Section 6.06 hereof) shall include (1) a statement that each Person making
such certificate or opinion has read such covenant or condition and the
definitions relating thereto; (2) 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; (3) 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 (4) a statement as to whether or not, in the opinion of each such Person,
such condition or covenant has been complied with.
(c) 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.
(d) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel delivered under the
Indenture 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 person knows, or in the exercise of
reasonable care should know, that the certificate or opinion of representations
with respect to such matters are erroneous. Any opinion of counsel delivered
hereunder may contain standard exceptions and qualifications reasonably
satisfactory to the Trustee.
(e) Any certificate, statement or opinion of any officer of the
Company, or of counsel, may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an independent
public accountant or firm of accountants, unless such officer or counsel, as the
case may be, knows that the certificate or opinions or representations with
respect to the accounting matters upon which the certificate, statement or
opinion of such officer or counsel may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous. Any
certificate or opinion of any firm of independent public accountants filed with
the Trustee shall contain a statement that such firm is independent.
(f) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 15.06 BUSINESS DAYS. Unless otherwise provided pursuant to
Section 2.05(c) hereof, in any case where the date of Maturity of the principal
of or any premium or interest on any Note or the date fixed for redemption of
any Note is not a Business Day, then payment of
58
<PAGE>
such principal or any premium or interest need not be made on such date but may
be made on the next succeeding Business Day with the same force and effect as if
made on the date of Maturity or the date fixed for redemption, and, in the case
of timely payment thereof, no interest shall accrue for the period from and
after such Interest Payment Date or the date on which the principal or premium
of the Note is required to be paid.
Section 15.07 TRUST INDENTURE ACT TO CONTROL. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by the TIA, such required provision of the TIA shall govern.
Section 15.08 TABLE OF CONTENTS, HEADINGS, ETC. The table of contents and
the titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 15.09 EXECUTION IN COUNTERPARTS. This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 15.10 MANNER OF MAILING NOTICE TO NOTEHOLDERS.
(a) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or the Company to or
on the Holders of Notes, as the case may be, shall be given or served by
first-class mail, postage prepaid, addressed to the Holders of such Notes at
their last addresses as the same appear on the register for the Notes referred
to in Section 2.06, and any such notice shall be deemed to be given or served by
being deposited in a post office letter box in the form and manner provided in
this Section 15.10. In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give notice to any
Holder by mail, then such notification to such Holder as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
(b) The Company shall also provide any notices required under this
Indenture by publication, but only to the extent that such publication is
required by the TIA, the rules and regulations of the Commission or any
securities exchange upon which any series of Notes is listed.
Section 15.11 APPROVAL BY TRUSTEE OF EXPERT OR COUNSEL. Wherever the
Trustee is required to approve an Expert or counsel who is to furnish evidence
of compliance with conditions precedent in this Indenture, such approval by the
Trustee shall be deemed to have been given upon the taking of any action by the
Trustee pursuant to and in accordance with the certificate or opinion so
furnished by such Expert or counsel.
59
<PAGE>
IN WITNESS WHEREOF, CENTRAL ILLINOIS PUBLIC SERVICE COMPANY has caused this
Indenture to be signed and acknowledged by its [___________], and attested by
its [____________], and THE BANK OF NEW YORK has caused this Indenture to be
signed and acknowledged by its [__________], and attested by its [___________],
as of the day and year first written above.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
By _______________________________________
ATTEST:
________________________________
THE BANK OF NEW YORK,
AS TRUSTEE
By _______________________________________
ATTEST:
________________________________
<PAGE>
EXHIBIT A
FORM OF GLOBAL NOTE
[PRIOR TO RELEASE DATE]
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY AS PROVIDED IN THE
INDENTURE REFERRED TO BELOW, THIS GLOBAL NOTE 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 GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK), TO THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO., 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.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
SENIOR NOTE, __% DUE ______
CUSIP: NUMBER:
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INTEREST RATE: MATURITY DATE:
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, a corporation of the State of
Illinois (the "COMPANY"), for value received hereby promises to pay to Cede &
Co. or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from
or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semiannually in arrears on
the and in each year, commencing on the first such
Interest Payment Date succeeding , at
the per annum Interest Rate set forth above, until the principal hereof is paid
or made available for payment. No interest shall
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<PAGE>
accrue on the Maturity Date, so long as the principal amount of this Global Note
is paid on the Maturity Date. The interest so payable and punctually paid or
duly provided for on any such Interest Payment Date (except for interest payable
on the Maturity Date set forth above or, if applicable, upon redemption or
acceleration) will, as provided in the Indenture (as defined below), be paid to
the Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest, which shall be the or
, as the case may be, next preceding such Interest Payment Date;
provided that the first Interest Payment Date for any part of this Note, the
Original Issue Date of which is after a Regular Record Date but prior to the
applicable Interest Payment Date, shall be the Interest Payment Date following
the next succeeding Regular Record Date; and provided that interest payable on
the Maturity Date set forth above or, if applicable, upon redemption or
acceleration, shall be payable to the Person to whom principal shall be payable.
Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and shall be paid to the Person in whose name
this Note 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 Noteholders not more than fifteen days or fewer than
ten days prior to such Special Record Date. Payment of the principal of and
interest and premium on this Global Note shall be payable pursuant to Section
2.12(a) of the Indenture.
This Global Note is a global security in respect of a duly authorized issue
of Senior Notes, __% Due _____ (the "NOTES OF THIS SERIES", which term includes
any Global Notes representing such Notes) of the Company issued and to be issued
under an Indenture dated as of December 1, 1998, between the Company and The
Bank of New York, as trustee (the "TRUSTEE", which term includes any successor
Trustee under the Indenture) and indentures supplemental thereto (collectively,
the "INDENTURE"). Under the Indenture, one or more series of notes may be issued
and, as used herein, the term "Notes" refers to the Notes of this Series and any
other outstanding series of Notes. Reference is hereby made to the Indenture for
a more complete statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Noteholders
and of the terms upon which the Notes are and are to be authenticated and
delivered. This Global Note has been issued in respect of the series designated
on the first page hereof, limited in aggregate principal amount to $ .
Prior to the Release Date (as hereinafter defined), the Notes will be
secured by first mortgage bonds (the "SENIOR NOTE FIRST MORTGAGE BONDS")
delivered by the Company to the Trustee for the benefit of the Holders of the
Notes, issued under the Indenture of Mortgage or Deed of Trust, dated October 1,
1941, from the Company to U.S. Bank Trust National Association, as successor
trustee (the "MORTGAGE TRUSTEE"), and F. Sgaraglino, as successor co-trustee, as
supplemented and modified (collectively, the "FIRST MORTGAGE"). Reference is
made to the First Mortgage and the Indenture for a description of the rights of
the Trustee as holder of the Senior Note First Mortgage Bonds, the property
mortgaged and pledged, the nature and extent of the security and the rights of
the holders of first mortgage bonds, under the First Mortgage and the rights of
the Company and of the Mortgage Trustee in respect thereof, the duties and
immunities of the Mortgage Trustee and the terms and conditions upon which the
Senior Note First Mortgage Bonds are secured and the circumstances under which
additional first mortgage bonds may be issued.
A-2
<PAGE>
From and after such time as all first mortgage bonds (other than Senior
Note First Mortgage Bonds) issued under the First Mortgage have been retired
through payment, redemption or otherwise at, before or after the maturity
thereof (the "Release Date"), the Senior Note First Mortgage Bonds shall cease
to secure the Notes in any manner. In certain circumstances prior to the
Release Date as provided in the Indenture, the Company is permitted to reduce
the aggregate principal amount of a series of Senior Note First Mortgage Bonds
held by the Trustee, but in no event prior to the Release Date to amount less
than the aggregate outstanding principal amount of the series of Notes initially
issued contemporaneously with such Senior Note First Mortgage Bonds.
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date. Each Note
issued upon transfer, exchange or substitution of such Note shall bear the
Original Issue Date of such transferred, exchanged or substituted Note, as the
case may be.
[Insert redemption provisions, if any]
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months (and for any partial periods
shall be calculated on the basis of the number of days elapsed in a 360-day year
of twelve 30-day months). If any Interest Payment Date or date on which the
principal of this Global Note is required to be paid is not a Business Day, then
payment of principal, premium or interest need not be made on such date but may
be made on the next succeeding Business Day with the same force and effect as if
made on such Interest Payment Date or date on which the principal of this Global
Note is required to be paid and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment Date
or the date on which the principal of this Global Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as set
forth in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and any premium
and interest on the Notes on the dates such payments are due in accordance with
the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of and
interest on the Notes may be declared due and payable in the manner and with the
effect provided in the Indenture and, upon such declaration, the Trustee shall
demand the redemption of the Senior Note First Mortgage Bonds to the extent
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of
A-3
<PAGE>
the Holders of not less than a majority in principal amount of the outstanding
Notes. Any such consent or waiver by the Holder of this Global Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Global Note and of any Note issued upon the registration of transfer hereof or
in exchange therefor or in lieu thereof whether or not notation of such consent
or waiver is made upon the Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided that such limitations do not
apply to a suit instituted by the Holder hereof for the enforcement of payment
of the principal of and any premium or interest on this Note on or after the
respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, this Global Note may be transferred only as permitted by the legend
hereto and the provisions of the Indenture.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of an
authorized officer, this Global Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture unless otherwise indicated
herein.
A-4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
Dated: By:______________________________________
Title:___________________________________
Attest:__________________________________
Title:___________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the series herein
designated, described or provided for in the within-
mentioned Indenture.
The Bank of New York, AS TRUSTEE
By:
----------------------------
AUTHORIZED OFFICER
A-5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT - _____ Custodian ______
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in
common ________________________________
State
Additional abbreviations may also be used
though not in the above list.
____________________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_______________________________________
the within note and all rights thereunder, hereby
irrevocably constituting and appointing
attorney to transfer
said note on the books of the Company, with
full power of substitution in the premises.
Dated: ______________________ _____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written upon
the face of the within instrument in every
particular, without alteration or enlargement
or any change whatever.
A-6
<PAGE>
EXHIBIT B
FORM OF NOTE
PRIOR TO RELEASE DATE
REGISTERED REGISTERED
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
SENIOR NOTE, __% DUE _____
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, a corporation of the State of Illinois
(the "COMPANY"), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from
or from the most recent date to which interest has been paid
or duly provided for, semiannually in arrears on and
in each year, commencing on the first such Interest Payment Date
succeeding , at the per annum Interest Rate set
forth above, until the principal hereof is paid or made available for payment.
No interest shall accrue on the Maturity Date, so long as the principal amount
of this Note is paid in full on the Maturity Date. The interest so payable and
punctually paid or duly provided for on any such Interest Payment Date (except
for interest payable on the Maturity Date set forth above or, if applicable,
upon redemption or acceleration) will, as provided in the Indenture (as defined
below), be paid to the Person in whose name this Note is registered at the close
of business on the Regular Record Date for such interest, which shall be the
or , as the case may be, next preceding such
Interest Payment Date; provided that the first Interest Payment Date for any
Note of this Series, the Original Issue Date of which is after a Regular Record
Date but prior to the applicable Interest Payment Date, shall be the Interest
Payment Date following the next succeeding Regular Record Date; and provided,
further, that interest payable on the Maturity Date set forth above or, if
applicable, upon redemption or acceleration, shall be payable to the Person to
whom principal shall be payable. Except as otherwise provided in the Indenture
(referred to on the reverse hereof), 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 shall be paid to the Person in whose name this Note 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 Noteholders not more than fifteen days nor fewer than ten days prior to
such Special Record Date. Principal,
B-1
<PAGE>
applicable premium and interest due at the Maturity of this Note shall be
payable in immediately available funds when due upon presentation and surrender
of this Note at the corporate trust office of the Trustee or at the authorized
office of any paying agent in the Borough of Manhattan, the City and State of
New York. Interest on this Note (other than interest payable at Maturity) shall
be paid by check payable in clearinghouse funds to the Holder as its name
appears on the register; provided that if the Trustee receives a written request
from any Holder of Notes, the aggregate principal amount of all of which having
the same Interest Payment Date as this Note equals or exceeds $10,000,000, on or
before the applicable Regular Record Date for such Interest Payment Date,
interest on this Note shall be paid by wire transfer of immediately available
funds to a bank within the continental United States designated by such Holder
in its request or by direct deposit into the account of such Holder designated
by such Holder in its request if such account is maintained with the Trustee or
any paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent by manual signature of an authorized officer, this Note 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.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
Dated: By:______________________________________
Title:___________________________________
Attest:__________________________________
Title:___________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the series herein
designated, described or provided for in the within-
mentioned Indenture.
The Bank of New York, AS TRUSTEE
By:
----------------------------
AUTHORIZED OFFICER
B-2
<PAGE>
[FORM OF REVERSE OF NOTE]
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY SENIOR NOTE, __% DUE ____
This Note is one of a duly authorized issue of Senior Notes, __% Due ____
(the "NOTES OF THIS SERIES") of the Company issued and to be issued under an
Indenture dated as of December 1, 1998 between the Company and The Bank of New
York, as trustee (the "TRUSTEE", which term includes any successor Trustee under
the Indenture) and indentures supplemental thereto (collectively, the
"INDENTURE"). Under the Indenture, one or more series of notes may be issued
and, as used herein, the term "Notes" refers to the Notes of this Series and any
other outstanding series of Notes. Reference is hereby made to the Indenture
for a more complete statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Noteholders
and of the terms upon which the Notes are and are to be authenticated and
delivered. This Note is one of the series designated on the face hereof,
limited in aggregate principal amount to $ .
Prior to the Release Date (as hereinafter defined), the Notes will be
secured by first mortgage bonds (the "SENIOR NOTE FIRST MORTGAGE BONDS")
delivered by the Company to the Trustee for the benefit of the Holders of the
Notes, issued under the Indenture of Mortgage or Deed of Trust, dated as of
October 1, 1941, from the Company to U.S. Bank Trust National Association, as
successor trustee (the "MORTGAGE TRUSTEE"), and F. Sgarglino, as successor to
trustee, as supplemented and modified (collectively, the "FIRST MORTGAGE").
Reference is made to the First Mortgage and the Indenture for a description of
the rights of the Trustee as holder of the Senior Note First Mortgage Bonds, the
property mortgaged and pledged, the nature and extent of the security and the
rights of the holders of first mortgage bonds, under the First Mortgage and the
rights of the Company and of the Mortgage Trustee in respect thereof, the duties
and immunities of the Mortgage Trustee and the terms and conditions upon which
the Senior Note First Mortgage Bonds are secured and the circumstances under
which additional first mortgage bonds may be issued.
From and after such time as all first mortgage bonds (other than Senior
Note First Mortgage Bonds) issued under the First Mortgage have been retired
through payment, redemption or otherwise at, before or after the maturity
thereof (the "Release Date"), the Senior Note First Mortgage Bonds shall cease
to secure the notes in any manner. In certain circumstances prior to the Release
Date as provided in the Indenture, the Company is permitted to reduce the
aggregate principal amount of a series of Senior Note First Mortgage Bonds held
by the Trustee, but in no event prior to the Release Date to amount less than
the aggregate outstanding principal amount of the series of Notes initially
issued contemporaneously with such Senior Note First Mortgage Bonds.
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date. Each Note
issued upon transfer, exchange or substitution of such Note shall bear the
Original Issue Date of such transferred, exchanged or substituted Note, as the
case may be.
[Insert redemption provisions, if any]
B-3
<PAGE>
Interest payments for this Note shall be computed and paid on the basis of
a 360-day year of twelve 30-day months (and for any partial periods shall be
calculated on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months). If any Interest Payment Date or the date on which the
principal of this Note is required to paid is not a Business Day, then payment
of principal, premium or interest need not be made on such date but may be made
on the next succeeding Business Day with the same force and effect as if made on
such Interest Payment Date or the date on which the principal of this Note is
required to be paid, and, in the case of timely payment thereof, no interest
shall accrue for the period from and after such Interest Payment Date or the
date on which the principal of this Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as set
forth in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and any premium
and interest on the Notes on the dates such payments are due in accordance with
the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of and
interest on the Notes may be declared due and payable in the manner and with the
effect provided in the Indenture and, upon such declaration, the Trustee shall
demand the redemption of the Senior Note First Mortgage Bonds to the extent
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange therefor in lieu thereof whether
or not notation of such consent or waiver is made upon the Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided that such limitations do not
apply to a suit instituted by the Holder hereof for the enforcement of payment
of the principal of and any premium or interest on this Note on or after the
respective due dates expressed here.
B-4
<PAGE>
No reference herein to the Indenture and to provisions of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, places and rates and the coin or currency prescribed
in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Note register. Upon
surrender of this Note for registration or transfer at the corporate trust
office of the Trustee or such other office or agency as may be designated by the
Company in the Borough of Manhattan, the City and State of New York, endorsed by
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note registrar, duly executed by the Holder hereof or the
attorney in fact of such Holder duly authorized in writing, one or more new
Notes of this Series of like tenor and of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees.
The Notes 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,
Notes of this Series are exchangeable for a like aggregate principal amount of
Notes of this Series of like tenor and of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
B-5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT - _____ Custodian ______
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in
common ________________________________
State
Additional abbreviations may also be used
though not in the above list.
____________________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_______________________________________
the within note and all rights thereunder, hereby
irrevocably constituting and appointing
attorney to transfer
said note on the books of the Company, with
full power of substitution in the premises.
Dated: ______________________ _____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written upon
the face of the within instrument in every
particular, without alteration or enlargement
or any change whatever.
B-6
<PAGE>
EXHIBIT C
FORM OF GLOBAL NOTE
FOLLOWING RELEASE DATE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY AS PROVIDED IN THE
INDENTURE REFERRED TO BELOW, THIS GLOBAL NOTE 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 GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK), TO THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO., 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.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
SENIOR NOTE, __% DUE ____
CUSIP: NUMBER:
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INTEREST RATE: MATURITY DATE:
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, a corporation of the State of
Illinois (the "COMPANY"), for value received hereby promises to pay to Cede &
Co. or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon
or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually in arrears on the
and in each year, commencing on the first such
Interest Payment Date succeeding , at
the per annum Interest Rate set forth above, until the principal hereof is paid
or made available for payment. No interest shall accrue on the Maturity Date, so
long as the principal amount of this Global Note is paid on the Maturity Date.
The interest so payable and punctually paid or duly provided for on any such
C-1
<PAGE>
Interest Payment Date (except for interest payable on the Maturity Date set
forth above or, if applicable, upon redemption or acceleration) will, as
provided in the Indenture (as defined below), be paid to the Person in whose
name this Note is registered at the close of business on the Regular Record Date
for such interest, which shall be the or , as
the case may be, next preceding such Interest Payment Date; provided, that the
first Interest Payment Date for any part of this Note, the Original Issue Date
of which is after a Regular Record Date but prior to the applicable Interest
Payment Date, shall be the Interest Payment Date following the next succeeding
Regular Record Date; and provided, that interest payable on the Maturity Date
set forth above or, if applicable, upon redemption or acceleration, shall be
payable to the Person to whom principal shall be payable. Except as otherwise
provided in the Indenture, 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 shall be paid to the Person in whose name this Note 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 Noteholders not more than fifteen days or fewer than ten days prior to
such Special Record Date. Payment of the principal of and interest and premium
on this Global Note shall be payable pursuant to Section 2.12(a) of the
Indenture.
This Global Note is a global security in respect of a duly authorized issue
of Senior Notes, __% Due ____ (the "NOTES OF THIS SERIES", which term includes
any Global Notes representing such Notes) of the Company issued and to be issued
under an Indenture dated as of December 1, 1998 between the Company and The Bank
of New York, as trustee (herein called the "TRUSTEE", which term includes any
successor Trustee under the Indenture) and indentures supplemental thereto
(collectively, the "INDENTURE"). Under the Indenture, one or more series of
notes may be issued and, as used herein, the term "Notes" refers to the Notes of
this Series and any other outstanding series of Notes. Reference is hereby made
to the Indenture for a more complete statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Noteholders and of the terms upon which the Notes are and are to
be authenticated and delivered. This Global Note has been issued in respect of
the series designated on the first page hereof, limited in aggregate principal
amount to $ .
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date. Each Note
or Global Note issued upon transfer, exchange or substitution of such Note or
Global Note shall bear the Original Issue Date of such transferred, exchanged or
substituted Note or Global Note, as the case may be.
[Insert redemption provisions, if any]
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months (and for any partial period
shall be calculated on the basis of the number of days elapsed in a 360-day year
of twelve 30-day months) . In any case where any Interest Payment Date or date
on which the principal of this Global Note is required to be paid is not a
Business Day, then payment of principal, premium or interest need not be made on
such date but may be made on the next succeeding Business Day with the same
force and effect as if made on such Interest Payment Date or date on which the
principal of this Global Note is required to be paid and, in the case of timely
payment thereof, no interest shall accrue for the
C-2
<PAGE>
period from and after such Interest Payment Date or the date on which the
principal of this Global Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as set
forth in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and any premium
and interest on the Notes on the dates such payments are due in accordance with
the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of and
interest on the Notes 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 modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in
lieu thereof whether or not notation of such consent or waiver is made upon the
Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; PROVIDED, HOWEVER, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on this
Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, this Global Note may be transferred only as permitted by the legend
hereto and the provisions of the Indenture.
C-3
<PAGE>
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of an
authorized officer, this Global Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture unless otherwise indicated
herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
Dated: By:______________________________________
Title:___________________________________
Attest:__________________________________
Title:___________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the series herein
designated, described or provided for in the within-
mentioned Indenture.
The Bank of New York, AS TRUSTEE
By:
----------------------------
AUTHORIZED OFFICER
C-4
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT - _____ Custodian ______
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in
common ________________________________
State
Additional abbreviations may also be used
though not in the above list.
____________________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_______________________________________
the within note and all rights thereunder, hereby
irrevocably constituting and appointing
attorney to transfer
said note on the books of the Company, with
full power of substitution in the premises.
Dated: ______________________ _____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written upon
the face of the within instrument in every
particular, without alteration or enlargement
or any change whatever.
C-5
<PAGE>
EXHIBIT D
FORM OF NOTE
[FOLLOWING RELEASE DATE]
REGISTERED REGISTERED
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
SENIOR NOTE, __% DUE ____
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, a corporation of the State of
Illinois (the "COMPANY"), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from
or from the most recent date to which interest has been paid
or duly provided for, semiannually in arrears on and
in each year, commencing on the first such Interest Payment Date succeeding
, at the per annum Interest Rate set forth above, until
the principal hereof is paid or made available for payment. No interest shall
accrue on the Maturity Date, so long as the principal amount of this Note is
paid in full on the Maturity Date. The interest so payable and punctually paid
or duly provided for on any such Interest Payment Date will (except for interest
payable on the Maturity Date or, if applicable, upon redemption or
acceleration), as provided in the Indenture (as defined below), be paid to the
Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest, which shall be the or , as
the case may be, next preceding such Interest Payment Date; provided that the
first Interest Payment Date for any Note, the Original Issue Date of which is
after a Regular Record Date but prior to the applicable Interest Payment Date,
shall be the Interest Payment Date following the next succeeding Regular Record
Date; and provided, that interest payable on the Maturity Date set forth above
or, if applicable, upon redemption or acceleration, shall be payable to the
Person to whom principal shall be payable. Except as otherwise provided in the
Indenture (referred to on the reverse hereof), 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 shall be paid to the Person in whose name
this Note 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 Noteholders not more than fifteen days nor fewer than
ten days prior to such Special Record Date. Principal, applicable premium and
interest due at the Maturity of this Note shall be payable in immediately
available funds when
D-1
<PAGE>
due upon presentation and surrender of this Note at the corporate trust office
of the Trustee or at the authorized office of any paying agent in the Borough of
Manhattan, the City and State of New York. Interest on this Note (other than
interest payable at Maturity) shall be paid by check payable in clearinghouse
funds to the Holder as its name appears on the register; provided, that if the
Trustee receives a written request from any Holder of Notes, the aggregate
principal amount of all of which having the same Interest Payment Date as this
Note equals or exceeds $10,000,000, on or before the applicable Regular Record
Date for such Interest Payment Date, interest on the Note shall be paid by wire
transfer of immediately available funds to a bank within the continental United
States (designated by such Holder in its request or by direct deposit into the
account of such Holder designated by such Holder in its request if such account
is maintained with the Trustee or any paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent by manual signature of an authorized officer, this Note 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.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
Dated: By: _____________________________
Title: _____________________________
Attest: _____________________________
Title: _____________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the series herein
designated, described or provided for in the within-
mentioned Indenture.
The Bank of New York, AS TRUSTEE
By:__________________________________
AUTHORIZED OFFICER
D-2
<PAGE>
[FORM OF REVERSE OF NOTE]
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
SENIOR NOTE, __% DUE ____
This Note is one of a duly authorized issue of Senior Notes, __% Due ____
Series (the "NOTES OF THIS SERIES") of the Company issued and to be issued under
an Indenture dated as of December 1, 1998, between the Company and The Bank of
New York, as trustee (herein called the "TRUSTEE", which term includes any
successor Trustee under the Indenture) and indentures supplemental thereto
(collectively, the "INDENTURE"). Under the Indenture, one or more series of
notes may be issued and, as used herein, the term "Notes" refers to the Notes of
this Series and any other outstanding series of Notes. Reference is hereby made
to the Indenture for a more complete statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Noteholders and of the terms upon which the Notes are and are to
be authenticated and delivered. This Note is one of the series designated on the
face hereof, limited in aggregate principal amount to $ .
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date. Each Note
issued upon transfer, exchange or substitution of such Note shall bear the
Original Issue Date of such transferred, exchanged or substituted Note, as the
case may be.
[Insert redemption provisions, if any]
Interest payments for this Note shall be computed and paid on the basis of
a 360-day year of twelve 30-day months (and for any partial periods shall be
calculated on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months). In any case where any Interest Payment Date or the date
on which the principal of this Note is required to paid is not a Business Day,
then payment of principal, premium or interest need not be made on such date but
may be made on the next succeeding Business Day with the same force and effect
as if made on such Interest Payment Date or the date on which the principal of
this Note is required to be paid, and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment Date
or the date on which the principal of this Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as set
forth in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and any premium
and interest on the Notes on the dates such payments are due in accordance with
the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture.
D-3
<PAGE>
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange therefor in lieu thereof whether
or not notation of such consent or waiver is made upon the Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on this
Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, places and rates and the coin or currency prescribed
in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Note register. Upon
surrender of this Note for registration or transfer at the corporate trust
office of the Trustee or such other office or agency as may be designated by the
Company in the Borough of Manhattan, the City and State of New York, endorsed by
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note registrar, duly executed by the Holder hereof or the
attorney in fact of such Holder duly authorized in writing, one or more new
Notes of this Series of like tenor and of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees.
The Notes 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,
Notes of this Series are exchangeable for a like aggregate principal amount of
Notes of this Series of like tenor and of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this
D-4
<PAGE>
Note is registered as the owner thereof for all purposes, whether or not this
Note is overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
D-5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT - _____ Custodian ______
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in
common ________________________________
State
Additional abbreviations may also be used
though not in the above list.
____________________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_______________________________________
the within note and all rights thereunder, hereby
irrevocably constituting and appointing
attorney to transfer
said note on the books of the Company, with
full power of substitution in the premises.
Dated: ______________________ _____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written upon
the face of the within instrument in every
particular, without alteration or enlargement
or any change whatever.
D-6
<PAGE>
Exhibit 5
[LETTERHEAD OF AMEREN CORPORATION]
December 3, 1998
Central Illinois Public Service Company
607 Adams Street
Springfield, IL 62739
Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary of Amaren
Corporation, the parent of Central Illinois Public Service Company, an
Illinois corporation (the "Company"), and have acted as counsel for the
Company in connection with the filing by the Company with the Securities and
Exchange Commission of Post-Effective Amendment No. 1 to the Registration
Statement on Form S-3 (File No. 333-18473) (the "Registration Statement")
with respect to $75,000,000 aggregate principal amount of the Company's
Senior Notes (the "Securities") for issuance from time to time pursuant to
Rule 415 under the Securities Act of 1933, as amended (the "Securities Act").
The Securities will be issued pursuant to an indenture to be entered into
between the Company and The Bank of New York, as trustee (the "Indenture").
In so acting, I have examined originals (or copies certified or
otherwise identified to my satisfaction) of the Registration Statement, the
form of Securities certificates, the form of Indenture, the Restated Articles
of Incorporation and Bylaws of the Company as in effect on the date hereof,
corporate and other documents, records and papers, certificates of public
officials and certificates of officers of the Company.
On the basis of such examination, it is my opinion, assuming (i) the
applicable provisions of the Securities Act, the Trust Indenture Act of 1939,
as amended, and the securities or "blue sky" laws of various states shall have
been complied with, (ii) the Indenture shall have been duly authorized,
executed and delivered, and (iii) the Securities shall have been duly
authorized, executed, authenticated and delivered against the consideration
therefor to be set forth in the supplement or supplements to the prospectus
constituting a part of the Registration Statement, that the Securities will
be legally issued and will constitute the valid and binding obligations of
the Company and will be entitled to the benefits of the Indenture.
<PAGE>
Central Illinois Public Service Company
December 3, 1998
Page 2
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the heading "Legal
Opinions" in the related prospectus. In giving this consent, I do not thereby
admit that I am within the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Steven R. Sullivan
<PAGE>
Exhibit 23.03
[LETTERHEAD OF SORLING, NORTHRUP, HANNA, CULLEN AND COCHRAN, LTD.]
Ameren Services Company Central Illinois Public Service Co.
1901 Chouteau Avenue 607 E. Adams
St. Louis, MO 63103 Springfield, IL 62739
RE: SECURITIES AND EXCHANGE COMMISSION
POST EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3 REGISTRATION STATEMENT
We have prepared or reviewed the statements as to matters of law or
legal conclusions relating to Central Illinois Public Service Company's First
Mortgage Bonds expressed under "Description of Senior Note Mortgage Bonds --
Security" in the Prospectus which is part of the accompanying Post-effective
Amendment No. 1 to the Form S-3 Registration Statement. We are of the opinion
that all such statements as to such matters are correct and we hereby consent
to the making of such statements and to the use of our name in connection
therewith.
SORLING, NORTHRUP, HANNA, CULLEN
AND COCHRAN, LTD.
By: /s/ C. Clark Germann
------------------------------
Springfield, Illinois
Date: December 3, 1998
<PAGE>
Exhibit 23.03
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this Post-effective Amendment of our report dated January 30,
1998, included in Central Illinois Public Service Company's Form 10-K for the
year ended December 31, 1997, and to all references to our Firm included in
this Post-effective Amendment.
ARTHUR ANDERSEN LLP
Chicago, Illinois
December 3, 1998
<PAGE>
Exhibit 25.02
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) / /
--
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
(Exact name of obligor as specified in its charter)
Illinois 37-0211380
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
607 East Adams Street
Springfield, Illinois 62739
(Address of principal executive offices) (Zip code)
----------------------
Senior Notes
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
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.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
2
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 3rd day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARIE E. TRIMBOLI
--------------------------------
Name: MARIE E. TRIMBOLI
Title: ASSISTANT TREASURER
<PAGE>
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ........................... $ 7,301,241
Interest-bearing balances .................... 1,385,944
Securities:
Held-to-maturity securities .................. 1,000,737
Available-for-sale securities ................ 4,240,655
Federal funds sold and Securities pur-
chased under agreements to resell ............ 971,453
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ..................................... 38,788,269
LESS: Allowance for loan and
lease losses ............................... 632,875
LESS: Allocated transfer risk
reserve .................................... 0
Loans and leases, net of unearned
income, allowance, and reserve ............. 38,155,394
Assets held in trading accounts ................ 1,307,562
Premises and fixed assets (including
capitalized leases) .......................... 670,445
Other real estate owned ........................ 13,598
Investments in unconsolidated
subsidiaries and associated
companies .................................... 215,024
Customers' liability to this bank on
acceptances outstanding ...................... 974,237
Intangible assets .............................. 1,102,625
Other assets ................................... 1,944,777
-----------
Total assets ................................... $59,283,692
-----------
-----------
LIABILITIES
Deposits:
In domestic offices .......................... $26,930,258
Noninterest-bearing .......................... 11,579,390
Interest-bearing ............................. 15,350,868
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ............. 16,117,854
Noninterest-bearing .......................... 187,464
Interest-bearing ............................. 15,930,390
Federal funds purchased and Securities
sold under agreements to repurchase .......... 2,170,238
Demand notes issued to the U.S.
Treasury ..................................... 300,000
Trading liabilities ............................ 1,310,867
Other borrowed money:
With remaining maturity of one year
or less .................................... 2,549,479
With remaining maturity of more than
one year through three years ............... 0
With remaining maturity of more than
three years ................................ 46,654
Bank's liability on acceptances exe-
cuted and outstanding ........................ 983,398
Subordinated notes and debentures .............. 1,314,000
Other liabilities .............................. 2,295,520
-----------
Total liabilities .............................. 54,018,268
-----------
EQUITY CAPITAL
Common stock ................................... 1,135,284
Surplus ........................................ 731,319
Undivided profits and capital
reserves ..................................... 3,385,227
Net unrealized holding gains
(losses) on available-for-sale
securities ................................... 51,233
Cumulative foreign currency transla-
tion adjustments ............................. (37,639)
-----------
Total equity capital ........................... 5,265,424
-----------
Total liabilities and equity
capital ...................................... $59,283,692
-----------
-----------
</TABLE>
<PAGE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot (3)
Thomas A. Renyi (3) Directors
Alan R. Griffith (3)
-
