21
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended SEPTEMBER 30, 1994
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________to __________
Commission Registrants; State of Incorporation; IRS Employer
File Number Address; and Telephone Number Identification No.
1-11327 Illinova Corporation 37-1319890
(an Illinois Corporation)
500 S. 27th Street
Decatur, IL 62525
(217) 424-6600
1-3004 Illinois Power Company 37-0344645
(an Illinois Corporation)
500 S. 27th Street
Decatur, IL 62525
(217) 424-6600
Indicate by check mark whether the registrants (1) have filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such report),
and (2) have been subject to such filing requirements for the past 90
days.
Illinova Yes X No
Corporation ---- -----
Illinois Power Yes X No
Company ---- -----
Indicate the number of shares outstanding of each of the issuers'
classes of common stock, as of the latest practicable date:
Illinova Corporation Common stock, no par value, 75,643,937
shares outstanding at October 31, 1994
Illinois Power Company Common stock, no par value, 75,643,937
shares outstanding held by Illinova
Corporation at October 31, 1994
Total number of sequentially numbered pages is 105.
ILLINOVA CORPORATION
ILLINOIS POWER COMPANY
This combined Form 10-Q is separately filed by Illinova Corporation
and Illinois Power Company. Prior to the filing of the combined 10-Q
for the quarter ended June 30, 1994, Illinova was not a reporting
company for purposes of the Securities Exchange Act of 1934, and
Illinois Power Company filed its own separate reports on Form 10-Q.
Information contained herein relating to Illinois Power Company is
filed by Illinova Corporation and separately by Illinois Power Company
on its own behalf. Illinois Power Company makes no representation as
to information relating to Illinova Corporation or its subsidiaries,
except as it may relate to Illinois Power Company.
FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 1994
INDEX
PAGE NO.
Part 1. FINANCIAL INFORMATION
Item 1. Financial Statements
Illinova Corporation
Consolidated Balance Sheets 3 - 4
Consolidated Statements of Income 5 - 6
Consolidated Statements of Cash Flows 7
Illinois Power Company
Balance Sheets 8 - 9
Statements of Income 10
Statements of Cash Flows 11
Notes to Financial Statements of
Illinova Corporation and
Illinois Power Company 12 - 13
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations for Illinova Corporation
and Illinois Power Company 14 - 20
Part II. OTHER INFORMATION
Item 1: Legal Proceedings 21
Item 6: Exhibits and Reports on Form 8-K 21
Signatures 22 - 23
Exhibit Index 24
<PAGE>
PART I. FINANCIAL INFORMATION
ILLINOVA CORPORATION
CONSOLIDATED BALANCE SHEETS
(See accompanying Notes to Financial Statements)
SEPTEMBER 30, DECEMBER 31,
1994 1993
ASSETS (Unaudited)
(Millions of Dollars)
Utility Plant, at original cost
Electric (includes construction work
in progress of $237.0 million and
$218.7 million, respectively) $ 5,976.6 $ 5,889.4
Gas (includes construction work
in progress of $16.9 million and
$18.8 million, respectively) 601.2 589.9
---------- ----------
6,577.8 6,479.3
Less-Accumulated depreciation 2,065.9 1,974.6
---------- ----------
4,511.9 4,504.7
Nuclear fuel in process 6.8 6.6
Nuclear fuel under capital lease 104.4 128.5
---------- ----------
Total utility plant 4,623.1 4,639.8
---------- ----------
Investments and Other Assets 32.8 20.1
---------- ----------
Current Assets
Cash and cash equivalents 14.9 9.9
Accounts receivable (less allowance
for doubtful accounts of $4.0 million)
Service 93.1 85.2
Other 24.7 37.5
Accrued unbilled revenue 44.9 49.0
Material and supplies, at average cost 135.6 131.6
Prepayments and other 48.3 31.8
---------- ----------
Total current assets 361.5 345.0
---------- ----------
Deferred Charges
Deferred Clinton costs 111.7 114.3
Recoverable income taxes 119.7 108.0
Other 191.9 196.3
---------- ----------
Total deferred charges 423.3 418.6
---------- ----------
$ 5,440.7 $ 5,423.5
========== ==========
<PAGE>
ILLINOVA CORPORATION
CONSOLIDATED BALANCE SHEETS
(See accompanying Notes to Financial Statements)
SEPTEMBER 30, DECEMBER 31,
1994 1993
CAPITAL AND LIABILITIES (Unaudited)
(Millions of Dollars)
Capitalization
Common stock -
No par value, 100,000,000 shares authorized;
75,643,937 shares outstanding,
stated at $ 1,424.6 $ 1,424.6
Less - Deferred compensation - ESOP 25.9 28.2
Retained earnings (deficit) 47.3 (64.6)
Less - Capital stock expense 10.6 10.8
Preferred and preference stock of subsidiary 303.7 303.7
Mandatorily redeemable preferred stock
of subsidiary 36.0 48.0
Long-term debt 1,938.7 1,926.3
---------- ----------
Total capitalization 3,713.8 3,599.0
---------- ----------
Current Liabilities
Accounts payable 93.3 128.8
Notes payable 204.5 92.3
Long-term debt and lease obligations
maturing within one year 34.3 187.7
Other 111.4 197.9
---------- ----------
Total current liabilities 443.5 606.7
---------- ----------
Deferred Credits
Accumulated deferred income taxes 975.3 906.4
Accumulated deferred investment tax credits 224.5 230.5
Other 83.6 80.9
---------- ----------
Total deferred credits 1,283.4 1,217.8
---------- ----------
$ 5,440.7 $ 5,423.5
========== ==========
<PAGE>
ILLINOVA CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(See accompanying Notes to Financial Statements)
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1994 1993 1994 1993
(Unaudited)
(Millions except per share)
Operating Revenues:
Electric $ 362.4 $ 372.2 $ 912.1 $ 886.7
Electric interchange 30.2 45.6 83.3 91.0
Gas 36.3 34.6 226.0 220.3
------- ------- ------- -------
Total 428.9 452.4 1,221.4 1,198.0
======= ======= ======= =======
Operating Expenses and Taxes:
Fuel for electric plants 77.3 72.2 206.0 183.5
Power purchased 12.8 31.0 39.5 48.1
Gas purchased for resale 13.5 15.3 129.9 127.2
Other operating expenses 61.4 67.1 190.7 195.1
Maintenance 19.8 25.0 63.5 72.3
Depreciation 44.2 42.5 131.9 126.1
Amortization of excess
unprotected deferred taxes - (1.4) (1.4) (4.2)
General taxes 32.8 31.7 100.0 98.1
Deferred Clinton costs 0.8 2.8 2.6 8.4
Income Taxes 54.1 51.9 103.0 92.8
------- ------- ------- -------
Total 316.7 338.1 965.7 947.4
------- ------- ------- -------
Operating Income 112.2 114.3 255.7 250.6
------- ------- ------- -------
Other Income and Deductions:
Allowance for equity funds
used during construction 0.9 0.6 2.9 1.6
Disallowed Clinton costs - (271.0) - (271.0)
Income tax effects of
disallowed costs - 70.6 - 70.6
Miscellaneous - net (4.4) 2.3 (10.1) 2.0
------- ------- ------- -------
Total (3.5) (197.5) (7.2) (196.8)
------- ------- ------- -------
Income (Loss) Before
Interest Charges 108.7 (83.2) 248.5 53.8
------- ------- ------- -------
Interest Charges & Other:
Interest on long-term debt 32.9 38.7 103.1 116.8
Other interest charges (0.7) 3.0 3.3 6.6
Allowance for borrowed funds
used during construction (1.2) (1.0) (4.3) (3.0)
Preferred dividend requirements
of subsidiary 5.9 6.3 17.8 20.1
------- ------- ------- -------
Total 36.9 47.0 119.9 140.5
------- ------- ------- -------
Net Income (Loss) $ 71.8 $ (130.2) $ 128.6 $ (86.7)
======= ======= ======= =======
ILLINOVA CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(See accompanying Notes to Financial Statements)
Illinova Corporation Earnings Per Share and Dividends
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1994 1993 1994 1993
(Unaudited)
Net Earnings (Loss) per
common share $ 0.95 $ (1.72) $ 1.70 $ (1.15)
Cash dividends declared per
common share $ 0.20 $ - $ 0.40 $ 0.40
Cash dividends paid per
common share $ 0.20 $ 0.20 $ 0.60 $ 0.60
Weighted average number
of common shares
outstanding during
period 75,643,937 75,643,937 75,643,937 75,643,937
ILLINOVA CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(See accompanying Notes to Financial Statements)
NINE MONTHS ENDED
SEPTEMBER 30,
1994 1993
(Unaudited)
(Millions of Dollars)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income (Loss) $ 128.6 $ (86.7)
Items not requiring cash, net 170.7 385.2
Changes in assets and liabilities (89.3) 8.1
--------- ---------
Net cash provided by operating
activities 210.0 306.6
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Construction expenditures (128.0) (163.1)
Other investing activities (15.4) (9.3)
--------- ---------
Net cash used in investing activities (143.4) (172.4)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Dividends on common stock (45.4) (45.4)
Redemptions -
Short-term debt (131.8) (217.5)
Long-term debt (145.8) (615.2)
Preferred stock of subsidiary (12.0) (94.4)
Issuances -
Short-term debt 244.1 204.4
Long-term debt 35.6 645.0
Preferred stock of subsidiary -- 43.5
Other financing activities (6.3) (32.3)
--------- ---------
Net cash used in financing activities (61.6) (111.9)
--------- ---------
NET CHANGE IN CASH AND CASH EQUIVALENTS 5.0 22.3
CASH AND CASH EQUIVALENTS AT BEGINNING
OF YEAR 9.9 8.7
--------- ---------
CASH AND CASH EQUIVALENTS AT
END OF PERIOD $ 14.9 $ 31.0
========= =========
<PAGE>
ILLINOIS POWER COMPANY
BALANCE SHEETS
(See accompanying Notes to Financial Statements)
SEPTEMBER 30, DECEMBER 31,
1994 1993
ASSETS (Unaudited)
(Millions of Dollars)
Utility Plant, at original cost
Electric (includes construction work
in progress of $237.0 million and
$218.7 million, respectively) $ 5,976.6 $ 5,889.4
Gas (includes construction work
in progress of $16.9 million and
$18.8 million, respectively) 601.2 589.9
------------ ------------
6,577.8 6,479.3
Less-Accumulated depreciation 2,065.9 1,974.6
------------ ------------
4,511.9 4,504.7
Nuclear fuel in process 6.8 6.6
Nuclear fuel under capital lease 104.4 128.5
------------ ------------
Total utility plant 4,623.1 4,639.8
------------ ------------
Investments and Other Assets 15.7 15.4
------------ ------------
Current Assets
Cash and cash equivalents 11.9 9.3
Accounts receivable (less allowance
for doubtful accounts of $4.0 million)
Service 93.1 85.2
Other 39.1 37.5
Accrued unbilled revenue 44.9 49.0
Material and supplies,
at average cost 135.6 131.6
Prepayments and other 48.2 31.7
------------ ------------
Total current assets 372.8 344.3
------------ ------------
Deferred Charges
Deferred Clinton costs 111.7 114.3
Recoverable income taxes 119.7 108.0
Other 190.1 195.1
------------ ------------
Total deferred charges 421.5 417.4
------------ ------------
$ 5,433.1 $ 5,416.9
============ ============
ILLINOIS POWER COMPANY
BALANCE SHEETS
(See accompanying Notes to Financial Statements)
SEPTEMBER 30, DECEMBER 31,
1994 1993
CAPITAL AND LIABILITIES (Unaudited)
(Millions of Dollars)
Capitalization
Common stock -
No par value, 100,000,000 shares
authorized; 75,643,937 shares
outstanding, stated at $ 1,424.6 $ 1,424.6
Less-Deferred compensation-ESOP 25.9 28.2
Retained earnings (deficit) 38.8 (71.0)
Less - Capital stock expense 10.6 10.8
Preferred and preference stock 303.7 303.7
Mandatorily redeemable
preferred stock 36.0 48.0
Long-term debt 1,938.7 1,926.3
------------ ------------
Total capitalization 3,705.3 3,592.6
------------ ------------
Current Liabilities
Accounts payable 92.4 128.4
Notes payable 204.0 92.3
Long-term debt and lease
obligations maturing
within one year 34.3 187.7
Other 111.4 197.9
------------ ------------
Total current liabilities 442.1 606.3
------------ ------------
Deferred Credits
Accumulated deferred income taxes 977.6 906.6
Accumulated deferred investment
tax credits 224.5 230.5
Other 83.6 80.9
------------ ------------
Total deferred credits 1,285.7 1,218.0
------------ ------------
$ 5,433.1 $ 5,416.9
============ ============
ILLINOIS POWER COMPANY
STATEMENTS OF INCOME
(See accompanying Notes to Financial Statements)
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1994 1993 1994 1993
(Unaudited)
(Millions except per share)
Operating Revenues:
Electric $ 362.4 $ 372.2 $ 912.1 $ 886.7
Electric interchange 30.2 45.6 83.3 91.0
Gas 36.3 34.6 226.0 220.3
------- ------- ------- -------
Total 428.9 452.4 1,221.4 1,198.0
Operating Expenses and Taxes:------- ------- ------- -------
Fuel for electric plants 77.3 72.2 206.0 183.5
Power purchased 12.8 31.0 39.5 48.1
Gas purchased for resale 13.5 15.3 129.9 127.2
Other operating expenses 61.4 67.1 190.7 195.1
Maintenance 19.8 25.0 63.5 72.3
Depreciation 44.2 42.5 131.9 126.1
Amortization of excess
unprotected deferred taxes - (1.4) (1.4) (4.2)
General taxes 32.8 31.7 100.0 98.1
Deferred Clinton costs 0.8 2.8 2.6 8.4
Income Taxes 54.1 51.9 103.0 92.8
------- ------- ------- -------
Total 316.7 338.1 965.7 947.4
------- ------- ------- -------
Operating Income 112.2 114.3 255.7 250.6
------- ------- ------- -------
Other Income and Deductions:
Allowance for equity funds
used during construction 0.9 0.6 2.9 1.6
Disallowed Clinton costs - (271.0) - (271.0)
Income tax effects of
disallowed costs - 70.6 - 70.6
Miscellaneous Net (3.7) 2.3 (7.2) 2.0
------- ------- ------- -------
Total (2.8) (197.5) (4.3) (196.8)
------- ------- ------- -------
Income (Loss) Before
Interest Charges 109.4 (83.2) 251.4 53.8
Interest Charges and Other: ------- ------- ------- -------
Interest on long-term debt 32.9 38.7 103.1 116.8
Other interest charges (0.7) 3.0 3.3 6.6
Allowance for borrowed funds
used during construction (1.2) (1.0) (4.3) (3.0)
------- ------- ------- -------
Total 31.0 40.7 102.1 120.4
------- ------- ------- -------
Net Income (Loss) 78.4 (123.9) 149.3 (66.6)
Preferred dividend requirements 5.9 6.3 17.8 20.1
Net Income (Loss) applicable ------- - ------- -------
- -------
to common stock $ 72.5 $(130.2) $ 131.5 $ (86.7)
======= ======= ======= =======
ILLINOIS POWER COMPANY
STATEMENTS OF CASH FLOWS
(See accompanying Notes to Financial Statements)
NINE MONTHS ENDED
SEPTEMBER 30,
1994 1993
(Unaudited)
(Millions of Dollars)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income (Loss) $ 149.3 $ (66.6)
Items not requiring cash, net 172.9 385.2
Changes in assets and liabilities (103.5) 8.1
--------- ---------
Net cash provided by operating
activities 218.7 326.7
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Construction expenditures (128.0) (163.1)
Other investing activities (3.0) (3.2)
--------- ---------
Net cash used in investing
activities (131.0) (166.3)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Dividends on preferred and
common stock (63.4) (65.5)
Redemptions -
Short-term debt (131.3) (217.5)
Long-term debt (145.8) (615.2)
Preferred Stock (12.0) (94.4)
Issuances -
Short-term debt 243.0 204.4
Long-term debt 35.6 645.0
Preferred stock -- 43.5
Other financing activities (11.2) (38.4)
--------- ---------
Net cash used in financing
activities (85.1) (138.1)
--------- ---------
NET CHANGE IN CASH AND
CASH EQUIVALENTS 2.6 22.3
CASH AND CASH EQUIVALENTS
AT BEGINNING OF YEAR 9.3 8.7
--------- ---------
CASH AND CASH EQUIVALENTS
AT END OF PERIOD $ 11.9 $ 31.0
========= =========
<PAGE>
ILLINOVA CORPORATION AND ILLINOIS POWER COMPANY
NOTES TO FINANCIAL STATEMENTS
GENERAL
Financial Statement note disclosures, normally included in
financial statements prepared in conformity with generally accepted
accounting principles, have been omitted from this Form 10-Q pursuant
to the Rules and Regulations of the Securities and Exchange
Commission. However, in the opinion of Illinova Corporation
(Illinova) and Illinois Power Company (IP), the disclosures and
information contained in this Form 10-Q are adequate and not
misleading. See IP's Form 10-K for the year ended December 31, 1993
and the "Notes to Financial Statements" in IP's 1993 Annual Report
incorporated by reference in IP's Form 10-K for the year ended
December 31, 1993, IP's report on Form 10-Q for the quarter ended
March 31, 1994, and the combined Illinova and Illinois Power report on
Form 10-Q for the quarter ended June 30, 1994, for information
relevant to the financial statements contained herein, including
information as to certain regulatory and environmental matters
involving IP and as to the significant accounting policies followed by
IP.
In the opinion of Illinova, the accompanying unaudited financial
statements reflect all adjustments necessary to present fairly the
Consolidated Balance Sheets as of September 30, 1994 and December 31,
1993, the Consolidated Statements of Income for the three months and
nine months ended September 30, 1994 and 1993, and the Consolidated
Statements of Cash Flows for the nine months ended September 30, 1994
and 1993. In addition, it is Illinova's and IP's opinion that the
accompanying unaudited financial statements for IP reflect all
adjustments necessary to present fairly the Balance Sheets as of
September 30, 1994 and December 31, 1993, the Statements of Income for
the three months and nine months ended September 30, 1994 and 1993,
and the Statements of Cash Flows for the nine months ended September
30, 1994 and 1993. Due to seasonal and other factors which are
characteristic of electric and gas utility operations, interim period
results are not necessarily indicative of results to be expected for
the year.
ACCOUNTING MATTERS
CONSOLIDATION
The consolidated financial statements of Illinova include the
accounts of Illinova, IP and Illinova Generating Company. Intercompany
balances and transactions have been eliminated from the consolidated
financial statements. All non-utility operating transactions are
included in the section titled Other Income and Deductions,
"Miscellaneous-net" in Illinova's Consolidated Statements of Income
and IP's Statements of Income. Prior year financial statements of
Illinois Power have been restated on a basis consistent with the
September 30, 1994 presentation.
IP's financial condition and results of operation are currently
the principal factors affecting Illinova's financial position or
results of operations.
FAS 119
In October 1994, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 119, "Disclosure About
Derivative Financial Instruments and Fair Value of Financial
Instruments," (FAS 119). FAS 119 requires expanded disclosure in the
financial statements of Illinova and IP beginning with the year ending
December 31, 1994. This standard is not expected to impact the
financial position or results of operations of Illinova or IP.
REGULATORY AND LEGAL MATTERS
DECOMMISSIONING
See "Decommissioning" in IP's Report on Form 10-Q for the quarter
ended March 31, 1994, and in the combined Illinova and IP Report on
Form 10-Q for the quarter ended June 30, 1994, for further discussion.
NUCLEAR FUEL CONTRACTS
In October 1993, IP filed suit in the U.S. District Court in
Danville, Illinois, against a number of entities who are parties to
one of IP's uranium supply contracts. In that suit, IP sought a
declaratory judgment on the propriety of its earlier termination of
the contract. In September 1994, the Court ruled against IP, granting
summary judgment motions filed by the defendants and holding that the
contract had been breached by IP's unauthorized termination. The
Court did not determine the amount of damages owed for the breach nor
the basis for calculating damages. Currently, settlement negotiations
are underway. If the negotiations are unsuccessful, a trial on the
issue of damages will be held. The outcome of this proceeding, even
if the issue of damages is litigated to judgment, is not expected to
have a material effect on IP's financial position or results of
operations.
<PAGE>
ILLINOVA CORPORATION AND ILLINOIS POWER COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Reference is made to Notes to Financial Statements and
Management's Discussion and Analysis of Financial Condition and
Results of Operations presented in IP's 1993 Annual Report
incorporated by reference in IP's Form 10-K for the year ended
December 31, 1993, IP's Report on Form 10-Q for the quarter ended
March 31, 1994, and the combined Illinova and Illinois Power Report on
Form 10-Q for the quarter ended June 30, 1994. Important factors
affecting financial condition and results of operations between the
periods indicated are as follows:
Illinova Subsidiaries
IP, the primary business and subsidiary of Illinova, is engaged
in the generation, transmission, distribution and sale of electric
energy and the distribution, transportation and sale of natural gas in
the State of Illinois.
Illinova Generating Company (IG) is Illinova's wholly-owned
independent power subsidiary which invests in energy supply projects
throughout the world. IG's strategy is to develop "greenfield" power
plants, acquire existing generation facilities and provide power plant
O&M services. During the third quarter of 1994, IG became an equity
partner in three natural gas-fired generation plants with Tenaska, two
of which are already in operation. Tenaska is an Omaha, Nebraska-
based developer of independent power projects throughout the U.S. In
August 1994, IG also purchased 50 percent of the North American Energy
Services Company (NAES), headquartered in Issaquah, Washington. NAES
supplies a broad range of operations, maintenance and support services
to the worldwide independent power generation industry, and operates
the three generation plants in which IG purchased an equity interest
as noted above. Illinova has invested $25 million in IG as of
September 30, 1994.
Recent and potential future changes in federal and state
regulation of the utility industry have resulted in increased
competition in the energy marketplace. As part of Illinova's overall
strategy for preparing for this competition, potential future
deregulation and opportunities in higher-growth energy markets,
Illinova Power Marketing (IPM), a wholly-owned subsidiary of Illinova,
was formed on July 19, 1994 as a Delaware corporation. On July 20,
1994, IPM filed a request for Federal Energy Regulatory Commission
(FERC) approval to buy electricity from producers and to sell
electricity at market rates to wholesale customers, such as utilities,
electric cooperatives and municipalities, which are at least two
systems away from IP. Subsequent to the IPM filing, the FERC issued a
decision in Heartland Energy Services, Inc., et al., setting forth the
general standards governing applications by utility-affiliated
marketers, such as IPM, for market-based rates. Among these standards
is the submission, by the marketer's affiliated utility, of an open
access transmission tariff offering transmission services and prices
comparable to those which the utility provides to its customers. IPM
intends to amend its filing based on the FERC decision in the
Heartland case and has requested that the FERC defer action on the
original filing until it is amended. IPM plans to submit the amended
filing and IP plans to submit the comparable open access transmission
tariff, designed to satisfy the FERC's "comparability" requirements,
to the FERC during the first quarter of 1995. See the discussion of
open access and wheeling in "Regulatory Matters" on page 17 of this
report.
LIQUIDITY AND CAPITAL RESOURCES
DIVIDENDS
On March 23, 1994, the Illinois Commerce Commission (ICC) granted
IP permission to declare and pay common and preferred dividends for
the third and fourth quarters of 1994, with dividends on common stock
not to exceed 20 cents per share per quarter, in the event of a
negative retained earnings balance, contingent on satisfaction of
certain net income, cash flow and capitalization requirements as set
forth in the ICC order. As of July 31, 1994, IP no longer has negative
retained earnings. As a result, compliance with the conditions of the
ICC's March 1994 order is no longer necessary.
On August 10, 1994, the Board of Directors of Illinova declared
common stock dividends for the fourth quarter of 1994. In addition,
IP declared preferred stock dividends for the fourth quarter of 1994.
On October 12, 1994, the Board of Directors of Illinova increased the
common stock dividend 25 percent, declaring the common stock dividend
for the first quarter of 1995 at 25 cents per share, payable February
1, 1995, to shareholders of record as of January 10, 1995. This
declaration does not affect the previously declared common stock
dividend for the fourth quarter of 1994.
DECOMMISSIONING
See "Decommissioning" in IP's Report on Form 10-Q for the quarter
ended March 31, 1994, and in the combined Illinova and Illinois Power
Report on Form 10-Q for the quarter ended June 30, 1994, for further
discussion.
FERC ORDER 636
In January 1994, the ICC issued its Hearing Examiner's Proposed
Order (HEPO) related to its investigation of the appropriate method
for recovery of FERC Order 636 transition costs. The HEPO permitted
recovery of the transition costs through the Uniform Gas Adjustment
Clause. On September 23, 1994, the ICC issued a final order
addressing the appropriate method for the recovery of Order 636
transition costs. In the final order, the ICC distinguished between
Gas Supply Realignment Costs (GSR costs) and all other transition
costs, and determined that GSR costs should be recovered on a
volumetric basis in order to allocate these costs to all gas
customers. The Company will recover GSR costs from customers through
its gas rate rider for recovery of take-or-pay costs. All non-GSR
transition costs will be recovered through the Uniform Gas Adjustment
Clause. See "FERC Order 636" under "Regulatory Matters" in
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" in IP's 1993 Annual Report incorporated by
reference in IP's Form 10-K for the year ended December 31, 1993, for
further discussion.
TAX MATTERS
The Internal Revenue Service (IRS) has completed its audit of
IP's federal income tax returns for the years 1986 through 1988. IP
and the IRS have reached an agreement on all audit issues. The
results of the agreement did not have a material effect on IP's
financial position or results of operations.
CAPITAL RESOURCES AND REQUIREMENTS
Cash flow from operations during the first nine months of 1994
provided sufficient working capital to meet ongoing operating and
construction requirements and to service existing preferred and common
stock dividends and debt requirements for Illinova and its
subsidiaries. Additionally, Illinova and its subsidiaries believe
internal and external sources of capital will be available to meet
future operating requirements and continue to service existing debt,
preferred stock and common stock dividends, sinking fund requirements
and all anticipated construction requirements.
IP's capital requirements for construction were approximately
$128 million and $163 million during the nine months ended September
30, 1994 and 1993, respectively.
Illinois Power Company mortgage bonds are currently rated BBB by
Duff & Phelps, Baa2 by Moody's and BBB by Standard & Poor's. IP's
preferred stock is currently rated BBB- by Duff & Phelps, baa3 by
Moody's and BBB- by Standard & Poor's. Both Illinova and IP have
adequate short- and intermediate-term bank borrowing capacity.
IP has current ICC authorization to issue $212 million of debt
securities and $100 million of preferred stock. Illinois Power Capital
L.P., a limited partnership in which Illinois Power Company serves as
general partner, was established during the third quarter of 1994 for
the sole purpose of issuing its partnership interests and using the
proceeds to purchase certain debt securities of IP. Illinois Power
Capital issued $97 million of tax-advantaged monthly income preferred
securities (MIPS) at 9.45% (5.67% after-tax rate) in October 1994.
The proceeds from the sale of the MIPS were loaned to IP and will be
used by IP for the redemption or the purchase on the open market of
higher-cost outstanding securities of IP.
REGULATORY MATTERS
1993 GAS RATE CASE
See "1993 Gas Rate Case" under "Regulatory Matters" in
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" in IP's Report on Form 10-Q for the quarter
ended March 31, 1994, for a discussion of the financial impacts of the
ICC rate order issued on April 6, 1994.
OPEN ACCESS AND WHEELING
As noted in the discussion of Illinova Power Marketing on page 14
and 15 of this report, IP plans to submit an open access transmission
tariff to the FERC during the first quarter of 1995.
An open access transmission tariff provides for any qualified
entity to use the IP transmission system to wheel electricity. At
this time, qualified entities include any wholesale power entity such
as electric cooperatives, municipalities, exempt wholesale generators,
power marketers and other investor-owned utilities. Under the 1992
Energy Policy Act, an investor-owned utility must respond to any bona
fide transmission service request under Section 211 of the Federal
Power Act within 60 days. Although the Energy Policy Act of 1992
created, for the first time, a FERC-administered mechanism for
imposing wholesale wheeling obligations on utilities, IP has had the
obligation to wheel power for interconnected electricity suppliers
since 1976. That condition was included in IP's Clinton Power Station
construction permit and in the subsequently issued Clinton operating
license, to address anti-trust considerations by mitigating IP's
market power in transmission. Federal agencies have imposed
transmission access conditions on specific utilities in return for
plant construction and operating authority, but also in return for
approval of utility mergers and in connection with the granting of
other privileges. Open access has thus been a business reality in the
industry, and at IP, for some time. IP currently wheels power at
rates originally approved by the FERC in 1984. The open access tariff
filing that IP plans to make in the first quarter of 1995 may result
in a lower rate for transmission as imposed by the FERC or proposed by
IP in the interest of retaining and enhancing revenues derived from
wheeling. It is too soon to predict accurately the long-term
financial impact of increasing transmission access and other issues
arising from such access.
GAS MANUFACTURING SITES
IP is currently recovering Manufactured Gas Plant (MGP) site
cleanup costs from customers through a tariff rider approved by the
ICC in April 1993. In December 1993, the Appellate Court affirmed the
ICC ruling that cleanup costs may be recovered from customers through
a tariff rider. In February 1994, an intervening consumer group
appealed the December 1993 Appellate Court decision to the Supreme
Court of Illinois, arguing that utilities should not be permitted to
recover MGP cleanup costs from customers. IP and other utilities have
also appealed to the Illinois Supreme Court seeking to include
carrying costs on the unrecovered balance of cleanup costs through the
tariff rider. The Illinois Supreme Court agreed to hear both appeals,
and briefing and oral arguments were held in September 1994. Although
at the present time IP is unable to predict the outcome of these
appeals, management believes that the final disposition will not have
a material adverse effect on IP's financial position or results of
operations.
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1994 AND 1993
Electric Operations - The current quarter decrease of $9.8
million in electric revenues is primarily due to decreased sales to
the residential sector, partially offset by increased sales to the
industrial and commercial sectors. Total kilowatt-hour sales
(excluding interchange and sales to municipalities) increased 0.8% or
38 million kwh from the third quarter 1993. This increase was
primarily due to an increase in industrial sales of 1.3% (28 million
kwh) as a result of improving economic conditions throughout IP's
territory. Interchange revenues decreased $15.4 million due to warmer
weather and decreased sales opportunities in 1994 as compared to 1993.
The current quarter cost of fuel for electric plants increased
$5.1 million and electric generation increased 9.7%. The increase in
fuel cost was attributable to increased generation and the impact of
the Uniform Fuel Adjustment Clause. The equivalent availability of
Clinton was 93% and 89% for the three months ended September 30, 1994
and 1993, respectively. The equivalent availability for IP's coal-
fired plants was 88% and 89% for the three months ended September 30,
1994 and 1993, respectively. Power purchased and interchanged for the
current quarter decreased $18.2 million due to higher purchases at
lower-than-expected prices during 1993.
Gas Operations - Gas revenues increased $1.7 million in the third
quarter of 1994 due to the effects of the 6.1% rate increase granted
by the ICC in April 1994, partially offset by the effects of the
Uniform Gas Adjustment Clause. Therm sales increased 13.0% (5 million
therms) but were offset by a decrease in therms transported which
resulted in a 4.0% decrease in gas consumption. Commercial sales and
transport decreased 8.3% (1 million therms) and industrial sales and
transport decreased 4.4% (3 million therms).
The cost of gas purchased for resale decreased $1.8 million in
the third quarter as a result of the effects of the Uniform Gas
Adjustment Clause and the lower cost of gas.
Gas bypass (connection by the natural gas customer directly to a
pipeline, "bypassing" IP's sales and transportation service) continues
to be actively considered or utilized by several of IP's large
customers. IP is aggressively competing with the bypass options
available to these customers in an attempt to minimize the potential
loss in earnings.
Disallowed Clinton Costs and Income Tax Effects of Disallowed
Costs - In September 1993, IP recorded a loss of $271 million ($200
million or $2.65 per share, net of income taxes) related to the write-
off of certain deferred Clinton Power Station post-construction costs.
See "Note 2 - Clinton Power Station" in "Notes to Financial
Statements" in IP's 1993 Annual Report incorporated by reference in
IP's Form 10-K for the year ended December 31, 1993, for further
discussion.
Miscellaneous-net - The current quarter increase of $6.0 million
for IP is primarily a result of increased coal transportation costs
related to the 1993 United Mine Workers' Strike and flooding in the
Midwest. The current quarter increase of $6.7 million for Illinova is
due to the factors previously noted for IP, as well as holding company
and subsidiary expenses.
Interest on Long-Term Debt - The current quarter decrease of $5.8
million in interest on long-term debt is due to IP's 1993 and 1994
refinancings of higher-cost debt with lower-cost debt.
Earnings (Loss) per Common Share - The earnings (loss) per common
share for Illinova during the third quarter of 1994 and 1993 resulted
from the interaction of all other factors discussed herein, as well as
lower dividend requirements due to the redemption of IP preferred
stock in 1994 and 1993.
NINE MONTHS ENDED SEPTEMBER 30, 1994 AND 1993
Electric Operations - The current period increase of $25.4
million in electric revenues is primarily due to increased sales
across all classes of customers. Total kilowatt-hour sales (excluding
interchange and sales to municipalities) increased 5.5% or 678 million
kwh. The improving economy contributed to an increase in sales for the
industrial and commercial sectors of 8.0% (482 million kwh) and 6.5%
(159 million kwh), respectively. Interchange revenues decreased $7.8
million, mainly due to 1993 third quarter interchange sales that were
higher primarily due to warmer weather and decreased sales
opportunities in 1994 as compared to 1993.
The current period cost of fuel for electric plants increased
$22.5 million with electric generation increasing 6.5%. The increase
in fuel cost is a result of an increase in higher-cost fossil plant
generation and a decrease in lower-cost nuclear generation coupled
with the effects of the Uniform Fuel Adjustment Clause. The
equivalent availability of Clinton was 93% and 96% for the nine months
ended September 30, 1994 and 1993, respectively. The equivalent
availability of IP's coal-fired plants was 77% and 82% for the nine
months ended September 30, 1994 and 1993, respectively. Power
purchased and interchanged for the period decreased $8.6 million due
to higher interchange purchases in the third quarter of 1993 as a
result of increased purchases at lower-than-expected prices.
Gas Operations - Gas revenues increased $5.7 million in the
current period due to increased sales and the effects of the 6.1% rate
increase granted by the ICC in April 1994. Therm sales increased 2.0%
(8 million therms) and therms transported increased 7.4% (12 million
therms), for a combined increase in gas consumption of 3.6% (20
million therms). Therm sales to residential customers increased 3.1%
(8 million therms), commercial sales and transport increased 0.9% (1
million therms) and industrial therm sales and transport increased
5.5% (11 million therms).
Cost of gas purchased for resale increased $2.7 million for the
period. This increase is a result of increased gas storage service
costs due to an increase of leased gas storage fields and the effects
of the Uniform Gas Adjustment Clause.
Disallowed Clinton Costs and Income Tax Effects of Disallowed
Costs - In September 1993, Illinois Power recorded a loss of $271
million ($200 million or $2.65 per share, net of income taxes) related
to the write-off of certain deferred Clinton Power Station post-
construction costs. See "Note 2 - Clinton Power Station" in "Notes to
Financial Statements" in IP's 1993 Annual Report incorporated by
reference in IP's Form 10-K for the year ended December 31, 1993, for
further discussion.
Miscellaneous-net - The year-to-date increase of $9.2 million for
IP is primarily a result of increased coal transportation costs
related to the 1993 United Mine Workers' Strike and flooding in the
Midwest. The year-to-date increase of $12.1 million for Illinova is
due to the factors previously noted for IP, as well as holding company
and subsidiary expenses.
Interest on long-term debt - The year-to-date decrease of $13.7
million in interest on long-term debt is due to IP's 1993 refinancings
of higher-cost debt with lower-cost debt.
Earnings (Loss) per Common Share - The earnings (loss) per common
share for Illinova during the nine months ended September 30, 1994 and
1993, resulted from the interaction of all other factors discussed
herein, as well as lower dividend requirements due to the redemption
of IP preferred stock in 1994 and 1993.
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings
See "Notes to Financial Statements" in Part I for a discussion of
certain legal proceedings related to nuclear fuel contracts.
ITEM 6. Exhibits and Reports on Form 8-K
(a) Exhibits
The Exhibits filed with this 10-Q are listed on the
Exhibit Index.
(b) Reports on Form 8-K since June 30, 1994:
An IP Current Report on Form 8-K, dated September 29,
1994, was filed reporting under Item 5, Other Events.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
ILLINOIS POWER COMPANY
(Registrant)
By /s/Larry F. Altenbaumer
---------------------------
Larry F. Altenbaumer,
Senior Vice President and
Chief Financial Officer
on behalf of
Illinois Power Company
Date: November 9, 1994
EXHIBIT INDEX
PAGE NO. WITHIN
SEQUENTIAL NUMBERING
EXHIBIT DESCRIPTION SYSTEM
3(a) Articles of Amendment 25 - 31
to the Articles of Incorporation
of Illinova filed as of October 31, 1994.
3(b) Statement of Correction to the 32 - 33
Articles of Incorporation of Illinova
filed as of October 31, 1994.
4(a) Indenture dated October 1, 34 - 89
1994 between Illinois Power
Company and The First National
Bank of Chicago.
4(b) First Supplemental Indenture 90 - 105
dated October 1, 1994 to Indenture
dated October 1, 1994 between
Illinois Power Company and The
First National Bank of Chicago
as Trustee, 9.45% Subordinated
Debentures, Series A, Due September
30, 2043.
27 Financial Data Schedule UT
(filed herewith)
INDENTURE
BETWEEN
ILLINOIS POWER COMPANY
AND
THE FIRST NATIONAL BANK OF CHICAGO
RELATING TO THE ISSUANCE OF
UNSECURED SUBORDINATED DEBENTURES
Dated as of October 1, 1994
TABLE OF CONTENTS
Page
ARTICLE ONE - Definitions 1
ARTICLE TWO _ Issue, Description,
Terms, Execution,
Registration and Exchange of Debentures 8
ARTICLE THREE _Redemption of Debentures and Sinking Fund
Provisions 16
ARTICLE FOUR _ Particular Covenants of the Company 19
ARTICLE FIVE _Debentureholders' Lists and Reports by the
Company and the Trustee 21
ARTICLE SIX _Remedies of the Trustee and Debentureholders on
Event of Default 22
ARTICLE SEVEN _ Concerning the Trustee 28
ARTICLE EIGHT _ Concerning the Debentureholders 35
ARTICLE NINE _ Supplemental Indentures 37
ARTICLE TEN _ Consolidation, Merger and Sale 39
ARTICLE ELEVEN _Satisfaction and Discharge of Indenture;
Unclaimed Moneys
41
ARTICLE TWELVE _Immunity of Incorporators, Stockholders,
Officers and
Directors 44
ARTICLE THIRTEEN _ Miscellaneous
Provisions 45
ARTICLE FOURTEEN _ Subordination of
Debentures 47
THIS INDENTURE, dated as of the 1st day of October,
1994, between ILLINOIS POWER COMPANY, a corporation duly
organized and existing under the laws of the State of
Illinois (the "Company"), and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association organized and
existing under the laws of the United States of America, as
trustee (the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company
has duly authorized the execution and delivery of this
Indenture to provide for the issuance of unsecured
debentures (the "Debentures"), in an unlimited aggregate
principal amount to be issued from time to time in one or
more series as in this Indenture provided as registered
Debentures without coupons, to be authenticated by the
certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which
the Debentures are to be authenticated, issued and
delivered, the Company has duly authorized the execution of
this Indenture;
WHEREAS, the Debentures and the certificate of
authentication to be borne by the Debentures (the
"Certificate of Authentication") are to be substantially in
such forms as may be approved by the Board of Directors (as
defined below) or set forth in any indenture supplemental to
this Indenture;
AND WHEREAS, all acts and things necessary to make the
Debentures issued pursuant to this Indenture, when executed
by the Company and authenticated and delivered by the
Trustee as in this Indenture provided, the valid, binding
and legal obligations of the Company, and to constitute
these presents a valid indenture and agreement according to
its terms, have been done and performed or will be done and
performed prior to the issuance of such Debentures, and the
execution of this Indenture and the issuance under this
Indenture of the Debentures have been or will be prior to
issuance in all respects duly authorized, and the Company,
in the exercise of the legal right and power in it vested,
executes this Indenture and proposes to make, execute, issue
and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon
which the Debentures are and are to be authenticated, issued
and delivered, and in consideration of the premises, of the
purchase and acceptance of the Debentures by their holders
and of the sum of one dollar ($1.00) to it duly paid by the
Trustee at the execution of these presents, the receipt of
which is acknowledged, the Company covenants and agrees with
the Trustee, for the equal and proportionate benefit
(subject to the provisions of this Indenture) of the
respective holders from time to time of the Debentures,
without any discrimination, preference or priority of any
one Debenture over any other by reason of priority in the
time of issue, sale or negotiation of the Debentures, or
otherwise, except as provided in this Indenture, as follows:
ARTICLE ONE
Definitions
The terms defined in this Article (except as in this
Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture, any
resolution of the Board of Directors of the Company and of
any indenture supplemental to this Indenture shall have the
respective meanings specified in this Section. All other
terms used in this Indenture which are defined in the Trust
Indenture Act, or which are by reference in such Act defined
in the Securities Act (except as otherwise expressly
provided in this Indenture or unless the context otherwise
requires), shall have the meanings assigned to such terms in
the Trust Indenture Act and in the Securities Act as in
force at the date of the execution of this instrument.
Additional Interest:
The term "Additional Interest" shall have the meaning
ascribed to such term in Section 2.13.
Affiliate:
The term "Affiliate" of the Company shall mean any company
at least a majority of whose Outstanding voting stock shall
at the time be owned by the Company, or by one or more
direct or indirect subsidiaries of or by the Company and one
or more direct or indirect subsidiaries of the Company. For
the purposes only of this definition of the term
"Affiliate," the term "voting stock," as applied to the
stock of any company, shall mean stock of any class or
classes having ordinary voting power for the election of a
majority of the directors of such company, other than stock
having such power only by reason of the occurrence of a
contingency.
Authenticating Agent:
The term "Authenticating Agent" means an authenticating
agent with respect to all or any of the series of
Debentures, as the case may be, appointed with respect to
all or any series of the Debentures, as the case may be, by
the Trustee pursuant to Section 2.10.
Board of Directors:
The term "Board of Directors" shall mean the Board of
Directors of the Company, or any duly authorized committee
of such Board.
Board Resolution:
The term "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 or any duly authorized committee of such
Board and to be in full force and effect on the date of such
certification.
Business Day:
The term "business day," with respect to any series of
Debentures, shall mean any day other than a day on which
banking institutions in New York, New York are authorized or
obligated by law or executive order to close.
Certificate:
The term "Certificate" shall mean a certificate signed by
the principal executive officer, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting
officer of the Company. The Certificate need not comply
with the provisions of Section 13.06.
Commission:
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under
the Exchange Act, or, if at any time of the date of
execution and delivery of this Indenture the Commission is
not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body, if any,
performing such duties at such time.
Company:
The term "Company" shall mean Illinois Power Company, a
corporation duly organized and existing under the laws of
the State of Illinois, and, subject to the provisions of
Article Ten, shall also include its successors and assigns.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the office of
the Trustee at which at any particular time its corporate
trust business shall be principally administered, which
office at the date of the execution of this Indenture is
located at One First National Plaza, Suite 0126, Chicago,
Illinois 60670, Attention: Corporate Trust Services
Department.
Debenture or Debentures:
The term "Debenture" or "Debentures" shall mean any
Debenture or Debentures, as the case may be, authenticated
and delivered under this Indenture.
Debentureholder:
The term "Debentureholder," "holder of Debentures,"
"registered holder," "Holder" or other similar term shall
mean the person or persons in whose name or names a
particular Debenture shall be registered on the books of the
Company kept for that purpose in accordance with the terms
of this Indenture.
Debenture Register:
The term "Debenture Register" shall have the meaning
ascribed to such term in Section 2.05(b).
Debenture Registrar:
The term "Debenture Registrar" shall have the meaning
ascribed to such term in Section 2.05(b).
Default:
The term "Default" shall mean any event, act or condition
which with notice or lapse of time, or both, would
constitute an Event of Default.
Defaulted Interest:
The term "Defaulted Interest" shall have the meaning
ascribed to such term in Section 2.03.
Depository:
The term "Depository" shall mean, with respect to Debentures
of any series for which the Company shall determine that
such Debentures will be issued as a Global Debenture, The
Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing
agency under the Exchange Act, or other applicable statute
or regulation, which in each case, shall be designated by
the Company pursuant to either Section 2.01 or 2.11.
Event of Default:
The term "Event of Default" with respect to Debentures of a
particular series shall mean any event specified in Section
6.01, continued for the period of time, if any, designated
in that Section.
Exchange Act:
The term "Exchange Act" shall mean the Securities and
Exchange Act of 1934, as amended.
Global Debenture:
The term "Global Debenture" shall mean, with respect to any
series of Debentures, a Debenture executed by the Company
and delivered by the Trustee to the Depository or pursuant
to the Depository's instruction, all in accordance with the
Indenture, which shall be registered in the name of the
Depository or its nominee.
Governmental Obligations:
The term "Governmental Obligations" shall mean securities
that are (i) direct obligations of the United States of
America for the payment of which its full faith and credit
is pledged or (ii) obligations of a person controlled by,
supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the
issuer of such obligations, and shall also include a
depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to
any such Governmental Obligation or a specific payment of
principal of or interest on any such Governmental Obligation
held by such custodian for the account of the holder of such
depository receipt; provided that (except as required by
law) such custodian is not authorized to make any deduction
from any amount received by the custodian in respect of the
Governmental Obligation or the specific payment of principal
of or interest on the Governmental Obligation evidenced by
such depositary receipt.
Guarantee:
The term "Guarantee" shall mean any guarantee that the
Company may enter into with Illinois Power Capital or other
persons directly or indirectly for the benefit of holders of
limited partnership interests issued by Illinois Power
Capital.
Indenture:
The term "Indenture" shall mean this instrument as
originally executed, or, if amended or supplemented as
provided in this Indenture, as so amended or supplemented.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to
any installment of interest on a Debenture of a particular
series shall mean the date specified in such Debenture or in
a Board Resolution or in an indenture supplemental to this
Indenture with respect to such series as the fixed date on
which an installment of interest with respect to Debentures
of that series is due and payable.
Illinois Power Capital:
The term "Illinois Power Capital" shall mean Illinois Power
Capital, L.P., a Delaware limited partnership.
Limited Partnership Agreement:
"Limited Partnership Agreement" shall mean the Amended and
Restated Agreement of Limited Partnership of Illinois Power
Capital, dated September 29, 1994, as amended from time to
time.
Notice of Default:
The term "Notice of Default" shall have the meaning ascribed
to such term in Section 6.01(a)(3).
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate
signed (i) by the President or a Vice President and (ii) the
Treasurer or an Assistant Treasurer or the Controller or an
Assistant Controller or the Secretary or an Assistant
Secretary of the Company. Each such certificate shall
include the statements provided for in Section 13.06, if and
to the extent required by the provisions of that Section.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in
writing signed by legal counsel, who may be an employee of
or counsel for the Company. Each such opinion shall include
the statements provided for in Section 13.06, if and to the
extent required by the provisions of that Section.
Outstanding:
The term "Outstanding," when used with reference to
Debentures of any series, shall, subject to the provisions
of Section 8.04, mean, as of any particular time, all
Debentures of that series previously authenticated and
delivered by the Trustee under this Indenture, except (a)
Debentures previously canceled by the Trustee or any paying
agent, or delivered to the Trustee or any paying agent for
cancellation or which have previously been canceled; (b)
Debentures or portions of Debentures for the payment or
redemption of which moneys or Governmental Obligations in
the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own
paying agent); provided, however, that if such Debentures or
portions of such Debentures are to be redeemed prior to
their maturity, notice of such redemption shall have been
given as in Article Three provided, or provision
satisfactory to the Trustee shall have been made for giving
such notice; and (c) Debentures in lieu of or in
substitution for which other Debentures shall have been
authenticated and delivered pursuant to the terms of Section
2.07.
Predecessor Debenture:
The term "Predecessor Debenture" of any particular Debenture
shall mean every previous Debenture evidencing all or a
portion of the same debt as that evidenced by such
particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under
Section 2.07 in lieu of a lost, destroyed or stolen
Debenture shall be deemed to evidence the same debt as the
lost, destroyed or stolen Debenture.
Preferred Securities:
The term "Preferred Securities" shall mean any limited
partnership interests issued by Illinois Power Capital or
similar securities issued by a permitted successor to
Illinois Power Capital in accordance with the Limited
Partnership Agreement.
Responsible Officer:
The term "Responsible Officer" when used with respect to the
Trustee shall mean any officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
Securities Act:
The term "Securities Act" shall mean the Securities Act of
1933, as amended.
Senior Indebtedness:
The term "Senior Indebtedness" of the Company shall mean the
principal of, premium, if any, interest on and any other
payment due pursuant to any of the following, whether
outstanding at the date of execution of this Indenture or
thereafter incurred, created or assumed: (a) all
indebtedness of the Company (other than non-recourse
indebtedness and indebtedness issued under this Indenture)
evidenced by notes, debentures, bonds or other securities
sold by the Company for money, (b) all indebtedness of
others of the kinds described in the preceding clause (a)
assumed by or guaranteed in any manner by the Company (other
than any Guarantee) or in effect guaranteed by the Company
through an agreement to purchase, contingent or otherwise,
and (c) all renewals, extensions or refundings of
indebtedness of the kinds described in any of the preceding
clauses (a) and (b) unless, in the case of any particular
indebtedness, renewal, extension or refunding, the
instrument creating or evidencing the same or the assumption
or guarantee of the same expressly provides that such
indebtedness, renewal, extension or refunding is not
superior in right of payment to or is pari passu with the
Debentures.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a
majority of whose Outstanding voting stock shall at the time
be owned by the Company or by one or more Subsidiaries or by
the Company and one or more Subsidiaries. For the purposes
only of this definition of the term "Subsidiary," the term
"voting stock," as applied to the stock of any corporation,
shall mean stock of any class or classes having ordinary
voting power for the election of a majority of the directors
of such corporation, other than stock having such power only
by reason of the occurrence of a contingency.
Trustee:
The term "Trustee" shall mean The First National Bank of
Chicago and, subject to the provisions of Article Seven,
shall also include its successors and assigns, and, if at
any time there is more than one person acting in such
capacity under this Indenture, "Trustee" shall mean each
such person. The term "Trustee" as used with respect to a
particular series of the Debentures shall mean the trustee
with respect to that series.
Trust Indenture Act:
The term "Trust Indenture Act" shall mean, as of any time,
the Trust Indenture Act of 1939, or any successor statute,
as in effect at such time.
ARTICLE TWO
Issue, Description, Terms, Execution,
Registration and Exchange of Debentures
01. The aggregate principal amount of Debentures
which may be authenticated and delivered under this
Indenture is unlimited.
The Debentures may be issued in one or more series up
to the aggregate principal amount of Debentures of that
series from time to time authorized by or pursuant to a
Board Resolution or pursuant to one or more indentures
supplemental to this Indenture adopted or executed prior to
the initial issuance of Debentures of a particular series.
Prior to the initial issuance of Debentures of any series,
there shall be established in or pursuant to a Board
Resolution, and set forth in an Officers' Certificate, or
established in one or more indentures supplemental to this
Indenture:
(1) the title of the Debentures of the series
(which
shall distinguish the Debentures of the series from all
other Debentures);
(2) any limit upon the aggregate principal amount
of
the Debentures of that series which may be authenticated and
delivered under this Indenture (except for Debentures
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Debentures of
that series);
(3) the date or dates on which the principal of
the
Debentures of the series is payable or any formulary or
other method or means by which such date or dates will be
determined, by reference or otherwise (without regard to any
provision for redemption, prepayment, acceleration, purchase
or extension);
(4) the rate or rates at which the Debentures of
the
series shall bear interest or the manner of calculation of
such rate or rates, if any (including the rate or rates at
which overdue principal shall bear interest, if different
from the rate or rates at which such Debentures shall bear
interest prior to maturity, and, if applicable, the rate or
rates at which overdue premium or interest shall bear
interest, if any);
(5) the date or dates from which such interest
shall
accrue, the Interest Payment Dates on which such interest
will be payable or the manner of determination of such
Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any
such Interest Payment Dates;
(6) the right, if any, to extend the interest
payment
periods and the maximum duration of any such extension;
(7) the period or periods within which, the price
or
prices at which and the terms and conditions upon which,
Debentures of the series may be redeemed, in whole or in
part, at the option of the Company;
(8) the obligation, if any, of the Company to
redeem
or purchase Debentures of the series pursuant to any sinking
fund or analogous provisions (including payments made in
cash in anticipation of future sinking fund obligations) or
at the option of a holder of Debentures and the period or
periods within which, the price or prices at which, and the
terms and conditions upon which, Debentures of the series
shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) the form of the Debentures of the series
including
the form of the Certificate of Authentication for such
series.
(10) if other than denominations of $25 or any
integral
multiple of $25, the denominations in which the Debentures
of the series shall be issuable;
(11) any and all other terms with respect to such
series (which terms shall not be inconsistent with the terms
of this Indenture); and
(12) whether the Debentures are issuable as a
Global
Debenture and, in such case, the identity for the Depository
for such series.
All Debentures of any one series shall be substantially
identical except as to denomination and except as may
otherwise be provided in or pursuant to any such Board
Resolution or in any indentures supplemental to this
Indenture.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
02. The Debentures of any series and the
Trustee's certificate of authentication to be borne by such
Debentures shall be substantially of the tenor and purport
as set forth in one or more indentures supplemental to this
Indenture or as provided in a Board Resolution and as set
forth in an Officers' Certificate, and may have such
letters, numbers or other marks of identification or
designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant to such law
or with any rule or regulation of any stock exchange on
which Debentures of that series may be listed, or to conform
to usage.
03. The Debentures shall be issuable as
registered Debentures and in the denominations of $25 or any
integral multiple of $25, subject to Section 2.01(10). The
Debentures of a particular series shall bear interest
payable on the dates and at the rate specified with respect
to that series. The principal of and the interest on the
Debentures of any series, as well as any premium on such
Debentures in case of their redemption prior to maturity,
shall be payable in the coin or currency of the United
States of America which at the time is legal tender for
public and private debt, at the office or agency of the
Company maintained for that purpose in Decatur, Illinois.
Each Debenture shall be dated the date of its
authentication, subject to Section 2.01.
The interest installment on any Debenture which is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Debentures of that series shall be
paid to the person in whose name said Debenture (or one or
more Predecessor Debentures) is registered at the close of
business on the regular record date for such interest
installment. In the event that any Debenture of a
particular series or portion of such Debenture is called for
redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on
such Debenture will be paid upon presentation and surrender
of such Debenture as provided in Section 3.03.
Any interest on any Debenture which is payable, but is
not punctually paid or duly provided for, on any Interest
Payment Date for Debentures of the same series ("Defaulted
Interest") shall immediately cease to be payable to the
registered holder on the relevant regular record date by
virtue of having been such holder; and such Defaulted
Interest shall be paid by the Company, at its election, as
provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Debentures to the persons in whose names such
Debentures (or their respective Predecessor Debentures) are
registered at the close of business on a special record date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debenture and the date of
the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Upon
satisfaction of the conditions set forth in the immediately
preceding sentence, the Trustee shall fix a special record
date for the payment of such Defaulted Interest which shall
not be more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed
payment. The Trustee promptly shall notify the Company of
such special record date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date for
such payment to be mailed, first class postage prepaid, to
each Debentureholder at such Debentureholder's address as it
appears in the Debenture Register (as defined below), not
less than 10 days prior to such special record date. Notice
of the proposed payment of such Defaulted Interest and the
special record date for such payment having been mailed as
provided above, such Defaulted Interest shall be paid to the
persons in whose names such Debentures (or their respective
Predecessor Debentures) are registered on such special
record date and shall be no longer payable pursuant
following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Debentures in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Debentures may be listed, and upon
such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one
or more indentures supplemental to this Indenture
establishing the terms of any series of Debentures pursuant
to Section 2.01, the term "regular record date" as used in
this Section with respect to a series of Debentures with
respect to any Interest Payment Date for such series shall
mean either the fifteenth day of the month immediately
preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 shall
occur, if such Interest Payment Date is the first day of a
month, or the last day of the month immediately preceding
the month in which an Interest Payment Date established for
such series pursuant to Section 2.01 shall occur, if such
Interest Payment Date is the fifteenth day of a month,
whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section,
each Debenture of a series delivered under this Indenture
upon transfer of or in exchange for or in lieu of any other
Debenture of such series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by
such other Debenture.
04. The Debentures shall, subject to the
provisions of Section 2.06, be printed on steel engraved
borders or fully or partially engraved, or legibly typed, as
the proper officers of the Company may determine, and shall
be signed on behalf of the Company by its Chairman or one of
its Vice Presidents, under its corporate seal attested by
its Secretary or one of its Assistant Secretaries. The
signature of the Chairman or a Vice President and/or the
signature of the Secretary or an Assistant Secretary in
attestation of the corporate seal, upon the Debentures, may
be in the form of a facsimile signature of a present or any
future Chairman or Vice President and of a present or any
future Secretary or Assistant Secretary and may be imprinted
or otherwise reproduced on the Debentures and for that
purpose the Company may use the facsimile signature of any
person who shall have been a Chairman or Vice President, or
of any person who shall have been a Secretary or Assistant
Secretary, notwithstanding the fact that at the time the
Debentures shall be authenticated and delivered or disposed
of such person shall have ceased to be the Chairman or a
Vice President, or the Secretary or an Assistant Secretary,
of the Company, as the case may be. The seal of the Company
may be in the form of a facsimile of the seal of the Company
and may be impressed, affixed, imprinted or otherwise
reproduced on the Debenture.
Only such Debentures as shall bear on them a
Certificate of Authentication substantially in the form
established for such Debentures, executed manually by an
authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall
be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate executed by
the Trustee, or by any Authenticating Agent appointed by the
Trustee with respect to such Debentures, upon any Debenture
executed by the Company shall be conclusive evidence that
the Debenture so authenticated has been duly authenticated
and delivered under this Indenture and that the holder is
entitled to the benefits of this Indenture.
In authenticating such Debentures and accepting the
additional responsibilities under this Indenture in relation
to such Debentures, the Trustee shall be entitled to
receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the form and terms of such Debentures have been
established in conformity with the provisions of this
Indenture.
The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this
Indenture will affect the Trustee's own rights, duties or
immunities under the Debentures and this Indenture or
otherwise in a manner which not reasonably acceptable to the
Trustee.
05. (a) Debentures of any series may be
exchanged upon their presentation at the office or agency of
the Company designated for such purpose in Decatur,
Illinois, and in any such other location as may be
designated by the Company pursuant to Section 4.02, for
other Debentures of such series of authorized denominations,
and for a like aggregate principal amount, upon payment of a
sum sufficient to cover any tax or other governmental charge
in relation to such exchange, all as provided in this
Section. In respect of any Debentures so surrendered for
exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in
exchange for the Debenture or Debentures so surrendered a
Debenture or Debentures of the same series which the
Debentureholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously Outstanding.
(a) The Company shall keep, or cause to be kept, at
its office or agency designated for such purpose in Decatur,
Illinois, or such other location designated by the Company,
a register or registers (the "Debenture Register") in which,
subject to such reasonable regulations as it may prescribe,
the Company shall register the Debentures and the transfers
of Debentures as in this Article provided and which at all
reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering
Debentures and transfer of Debentures as provided in this
Indenture shall be the Trustee or such other registrar as
may be appointed pursuant to a Board Resolution (the
"Debenture Registrar").
Upon surrender for transfer of any Debenture at the
office or agency of the Company designated for such purpose
in Decatur, Illinois, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver
in the name of the transferee or transferees a new Debenture
or Debentures of the same series as the Debenture presented
for a like aggregate principal amount.
All Debentures presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall
be accompanied (if so required by the Company or the
Debenture Registrar) by a written instrument or instruments
of transfer, in form satisfactory to the Company or the
Debenture Registrar, duly executed by the registered holder
or by such holder's duly authorized attorney in writing.
(b) No service charge shall be made for any exchange
or registration of transfer of Debentures, or issue of new
Debentures in case of partial redemption of any series, but
the Company may require payment of a sum sufficient to cover
any tax or other governmental charge in relation to such
exchange, registration or issue, other than exchanges
pursuant to Section 2.06, the second paragraph of Section
3.03 and Section 9.04 not involving any transfer.
(c) The Company shall not be required (i) to issue,
exchange or register the transfer of any Debentures during a
period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of less
than all the Outstanding Debentures of the same series and
ending at the close of business on the day of such mailing
or (ii) to register the transfer of or exchange any
Debentures of any series or portions of such Debentures
called for redemption. The provisions of this Section are,
with respect to any Global Debenture, subject to Section
2.11.
06. Pending the preparation of definitive
Debentures of any series, the Company may execute, and the
Trustee shall authenticate and deliver, temporary Debentures
(printed, lithographed or typewritten) of any authorized
denomination, and substantially in the form of the
definitive Debentures in lieu of which they are issued, but
with such omissions, insertions and variations as may be
appropriate for temporary Debentures, all as may be
determined by the Company. Every temporary Debenture of any
series shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive
Debentures of such series. Without unnecessary delay the
Company will execute and will furnish definitive Debentures
of such series and after that any or all temporary
Debentures of such series may be surrendered in exchange of
such definitive Debentures (without charge to the holders),
at the office or agency of the Company designated for the
purpose in Decatur, Illinois, and the Trustee shall
authenticate and such office or agency shall deliver in
exchange for such temporary Debentures an equal aggregate
principal amount of definitive Debentures of such series,
unless the Company advises the Trustee to the effect that
definitive Debentures need not be executed and furnished
until further notice from the Company. Until so exchanged,
the temporary Debentures of such series shall be entitled to
the same benefits under this Indenture as definitive
Debentures of such series authenticated and delivered under
this Indenture.
07. In case any temporary or definitive Debenture
shall become mutilated or be destroyed, lost or stolen, the
Company (subject to the next succeeding sentence) shall
execute, and upon its request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Debenture
of the same series bearing a number not contemporaneously
Outstanding, in exchange and substitution for the mutilated
Debenture, or in lieu of and in substitution for the
Debenture so destroyed, lost or stolen. In every case the
applicant for a substituted Debenture shall furnish to the
Company and to the Trustee 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, the applicant
shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or
theft of the applicant's Debenture and of the ownership of
such Debentures. The Trustee may authenticate any such
substituted Debenture and deliver the same upon the written
request or authorization of any officer of the Company.
Upon the issuance of any substituted Debenture, the Company
may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation
to such issuance and any other expenses (including the fees
and expenses of the Trustee) connected with such issuance.
In case any Debenture which has matured or is about to
mature shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute
Debenture, pay or authorize the payment of the same (without
surrender of that Debenture except in the case of a
mutilated Debenture) if the applicant for such payment shall
furnish to the Company and to the Trustee such security or
indemnity as they may require to save them harmless, and, in
case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Debenture and of the
ownership of such Debenture.
Every Debenture issued pursuant to the provisions of
this Section in substitution for any Debenture which is
mutilated, destroyed, lost or stolen shall constitute an
additional contractual obligation of the Company, whether or
not the mutilated, destroyed, lost or stolen Debenture shall
be found at any time, or be enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debentures of the
same series duly issued under this Indenture. All
Debentures shall be held and owned upon the express
condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures, and shall preclude (to
the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute now existing or enacted
after the date of this Indenture to the contrary with
respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
08. All Debentures surrendered for the purpose of
payment, redemption, exchange or registration of transfer
shall, if surrendered to the Company or any paying agent, be
delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be canceled by it, and no
Debentures shall be issued in lieu of such Debentures except
as expressly required or permitted by any of the provisions
of this Indenture. On request of the Company, the Trustee
shall deliver to the Company canceled Debentures held by the
Trustee. In the absence of such request the Trustee may
dispose of canceled Debentures in accordance with its
standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any
of the Debentures, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness
represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.
09. Nothing in this Indenture or in the
Debentures, express or implied, shall give or be construed
to give to any person, firm or corporation, other than the
parties to this Indenture and the holders of the Debentures,
any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition
or provision contained in this Indenture; all such
covenants, conditions and provisions being for the sole
benefit of the parties to this Indenture and of the holders
of the Debentures.
010. So long as any of the Debentures of any
series remain Outstanding there may be an Authenticating
Agent for any or all such series of Debentures which the
Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of
the Trustee to authenticate Debentures of such series issued
upon their exchange, transfer or partial redemption, and
Debentures so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee under
this Indenture. All references in this Indenture to the
authentication of Debentures by the Trustee shall be deemed
to include authentication by an Authenticating Agent for
such series except for authentication upon original issuance
or pursuant to Section 2.07. Each Authenticating Agent
shall be acceptable to the Company and shall be a
corporation which has a combined capital and surplus, as
most recently reported or determined by it, sufficient under
the laws of any jurisdiction under which it is organized or
in which it is doing business to conduct a trust business,
and which is otherwise authorized under such laws to conduct
such business and is subject to supervision or examination
by federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in
accordance with these provisions, it shall resign
immediately.
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 (and upon request
by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon
resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible
successor Authenticating Agent acceptable to the Company.
Any successor Authenticating Agent, upon acceptance of its
appointment under this Indenture, shall become vested with
all the rights, powers and duties of its predecessor under
this Indenture as if originally named as an Authenticating
Agent pursuant to this Section.
011. (a) If the Company shall establish pursuant
to Section 2.01 that the Debentures of a particular series
are to be issued as a Global Debenture, then the Company
shall execute and the Trustee shall, in accordance with
Section 2.04, authenticate and deliver, a Global Debenture
which (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of
the Outstanding Debentures of such series, (ii) shall be
registered in the name of the Depository or its nominee,
(iii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instruction and (iv) shall bear
a legend substantially to the following effect: "Except as
otherwise provided in Section 2.11 of the Indenture, this
Debenture may be transferred, in whole but not in part, only
to another nominee of the Depository or to a successor
Depository or to a nominee of such successor Depository."
(a) Notwithstanding the provisions of Section 2.05,
the Global Debenture of a series may be transferred, in
whole but not in part and in the manner provided in Section
2.05, only to another nominee of the Depository for such
series, or to a successor Depository for such series
selected or approved by the Company or to a nominee of such
successor Depository.
(b) If at any time the Depository for a series of
Debentures notifies the Company that it is unwilling or
unable to continue as Depository for such series or if at
any time the Depository for such series shall no longer be
registered or in good standing under the Exchange Act, or
other applicable statute or regulation and a successor
Depository for such series is not appointed by the Company
within 90 days after the Company receives such notice or
becomes aware of such condition, as the case may be, this
Section 2.11 shall no longer be applicable to the Debentures
of such series and the Company will execute, and subject to
Section 2.05, the Trustee will authenticate and deliver
Debentures of such series in definitive registered form
without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of
the Global Debenture of such series in exchange for such
Global Debenture. In addition, the Company may at any time
determine that the Debentures of any series shall no longer
be represented by a Global Debenture and that the provisions
of this Section 2.11 shall no longer apply to the Debentures
of such series. In such event the Company will execute and
subject to Section 2.05, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the
Company, will authenticate and deliver Debentures of such
series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture
of such series in exchange for such Global Debenture. Upon
the exchange of the Global Debenture for such Debentures in
definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be canceled by the
Trustee. Such Debentures in definitive registered form
issued in exchange for the Global Debenture pursuant to this
Section 2.11(c) shall be registered in such names and in
such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall
deliver such Debentures to the Depository for delivery to
the persons in whose names such Debentures are so
registered.
012. Except as otherwise specified as contemplated
by Section 2.01 for Debentures of any series, interest
payable on the Debentures of each series for any period will
be computed on the basis of a 360-day year consisting of
twelve 30-day months and for any period shorter than a full
month, on the basis of actual number of days elapsed in such
period. In the event that any date on which interest is
payable on any series of Debentures is not a Business Day,
then payment of interest payable on such date will be made
on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the
same force and effect as if made on such date.
013. So long as any Debentures remain Outstanding,
if Illinois Power Capital shall be required to pay any
interest on dividends in arrears in respect of Debentures of
any series pursuant to the terms of such Debentures, then
the Company will pay as interest ("Additional Interest") an
amount equal to such interest on dividends in arrears. In
addition, if Illinois Power Capital would be required to pay
any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by
the United States, or any other taxing authority, then, in
any such case, the Company shall also pay as Additional
Interest such amounts as shall be required so that the net
amount received and retained by Illinois Power Capital after
paying any such taxes, duties, assessments or governmental
charges will not be less than the amounts Illinois Power
Capital would have received had no such taxes, duties,
assessments or governmental charges been imposed.
ARTICLE THREE
Redemption of Debentures and Sinking Fund Provisions
014. The Company may redeem the Debentures of any
series issued under this Indenture on and after the dates
and in accordance with the terms established for such series
pursuant to Section 2.01.
015. (a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a
portion of the Debentures of any series in accordance with
the right reserved so to do, it shall give notice of such
redemption to holders of the Debentures of such series to be
redeemed by mailing, first class postage prepaid, a notice
of such redemption not less than 30 days and not more than
60 days before the date fixed for redemption of that series
to such holders at their last addresses as they shall appear
upon the Debenture Register. Any notice which is mailed in
the manner provided in this Indenture shall be conclusively
presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure
duly to give such notice to the holder of any Debenture of
any series designated for redemption in whole or in part, or
any defect in the notice, shall not affect the validity of
the proceedings for the redemption of any other Debentures
of such series or any other series. In the case of any
redemption of Debentures prior to the expiration of any
restriction on such redemption provided in the terms of such
Debentures or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall specify the date
fixed for redemption and the redemption price at which
Debentures of that series are to be redeemed, and shall
state that payment of the redemption price of such
Debentures to be redeemed will be made at the office or
agency of the Company in Decatur, Illinois, upon
presentation and surrender of such Debentures, that interest
accrued to the date fixed for redemption will be paid as
specified in said notice, that from and after said date
interest will cease to accrue and that the redemption is for
a sinking fund, if such is the case. If less than all the
Debentures of a series are to be redeemed, the notice to the
holders of Debentures of that series to be redeemed in whole
or in part shall specify the particular Debentures to be so
redeemed. In case any Debenture is to be redeemed in part
only, the notice which relates to such Debenture shall state
the portion of the principal amount of such Debenture to be
redeemed, and shall state that on and after the redemption
date, upon surrender of such Debenture, a new Debenture or
Debentures of such series in principal amount equal to the
unredeemed portion of such Debenture or Debentures will be
issued.
(a) If less than all the Debentures of a series are to
be redeemed, the Company shall give the Trustee at least 45
days' notice in advance of the date fixed for redemption as
to the aggregate principal amount of Debentures of the
series to be redeemed, and upon receipt of such notice the
Trustee shall select, by lot or in such other manner as it
shall deem appropriate and fair in its discretion and which
may provide for the selection of a portion or portions
(equal to $25 or any integral multiple of $25, subject to
Section 2.01(10)) of the principal amount of such Debentures
of a denomination larger than $25 (subject to Section
2.01(10)), the Debentures to be redeemed and promptly shall
notify the Company in writing of the numbers of the
Debentures to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its
Chairman or any Vice President, instruct the Trustee or any
paying agent to call all or any part of the Debentures of a
particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such
notice to be in the name of the Company or its own name as
the Trustee or such paying agent may deem advisable. In any
case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver
or cause to be delivered to, or permit to remain with, the
Trustee or such paying agent, as the case may be, such
Debenture Register, transfer books or other records, or
suitable copies or extracts from the Debenture Register,
sufficient to enable the Trustee or such paying agent to
give any notice by mail that may be required under the
provisions of this Section.
016. (a) If the giving of notice of redemption
shall have been completed as provided above, the Debentures
or portions of Debentures of the series to be redeemed
specified in such notice shall become due and payable on the
date and at the place stated in such notice at the
applicable redemption price, together with interest accrued
to the date fixed for redemption and interest on such
Debentures or portions of Debentures shall cease to accrue
on and after the date fixed for redemption, unless the
Company shall default in the payment of such redemption
price and accrued interest with respect to any such
Debentures or portion of such Debentures. On presentation
and surrender of such Debentures on or after the date fixed
for redemption at the place of payment specified in the
notice, said Debentures shall be paid and redeemed at the
applicable redemption price for such series, together with
interest accrued on them to the date fixed for redemption
(but if the date fixed for redemption is an interest payment
date, the interest installment payable on such date shall be
payable to the registered holder at the close of business on
the applicable record date pursuant to Section 2.03).
(a) Upon presentation of any Debenture of such series
which is to be redeemed in part only, the Company shall
execute and the Trustee shall authenticate and the office or
agency where the Debenture is presented shall deliver to the
holder of such Debenture, at the expense of the Company, a
new Debenture or Debentures of the same series, of
authorized denominations in principal amount equal to the
unredeemed portion of the Debenture so presented.
017. The provisions of Sections 3.04, 3.05 and
3.06 shall be applicable to any sinking fund for the
retirement of Debentures of a series, except as otherwise
specified as contemplated by Section 2.01 for Debentures of
such series.
The minimum amount of any sinking fund payment provided
for by the terms of Debentures of any series is a "mandatory
sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of Debentures of
any series is an "optional sinking fund payment." If
provided for by the terms of Debentures of any series, the
cash amount of any sinking fund payment may be subject to
reduction as provided in Section 3.05. Each sinking fund
payment shall be applied to the redemption of Debentures of
any series as provided for by the terms of Debentures of
such series.
018. The Company (i) may deliver Outstanding
Debentures of a series (other than any Debentures previously
called for redemption) and (ii) may apply as a credit
Debentures of a series which have been redeemed either at
the election of the Company pursuant to the terms of such
Debentures or through the application of permitted optional
sinking fund payments pursuant to the terms of such
Debentures, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Debentures
of such series required to be made pursuant to the terms of
such Debentures; provided that such Debentures have not been
previously so credited. Such Debentures shall be received
and credited for such purpose by the Trustee at the
redemption price specified in such Debentures for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
019. Not less than 45 days prior to each sinking
fund payment date for any series of Debentures, the Company
will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that
series, the portion of such payment, if any, which is to be
satisfied by delivering and crediting Debentures of that
series pursuant to Section 3.05 and the basis for such
credit and will, together with such Officers' Certificate,
deliver to the Trustee any Debentures to be so delivered.
Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Debentures to be redeemed
upon such sinking fund payment date in the manner specified
in Section 3.02 and cause notice of the redemption of such
Debentures to be given in the name of and at the expense of
the Company in the manner provided in Section 3.02. Such
notice having been duly given, the redemption of such
Debentures shall be made upon the terms and in the manner
stated in Section 3.03.
ARTICLE FOUR
Particular Covenants of the Company
The Company covenants and agrees for each series of the
Debentures as follows:
020. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and
interest on the Debentures of that series at the time and
place and in the manner provided in this Indenture and
established with respect to such Debentures.
021. So long as any series of the Debentures
remains Outstanding, the Company agrees to maintain an
office or agency in Decatur, Illinois, with respect to each
such series and at such other location or locations as may
be designated as provided in this Section 4.02, where (i)
Debentures of that series may be presented for payment, (ii)
Debentures of that series may be presented as authorized
above for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the
Debentures of that series and this Indenture may be given or
served, such designation to continue with respect to such
office or agency until the Company shall, by written notice
signed by its President or a Vice President and delivered to
the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall
fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address of such office,
such presentations, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the
Company appoints the Trustee as its agent to receive all
such presentations, notices and demands.
022. (a) If the Company shall appoint one or more
paying agents for all or any series of the Debentures, other
than the Trustee, the Company will cause each 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 it will hold all sums held by it as such
agent for the payment of the principal of (and premium, any)
or interest on the Debentures of that series (whether such
sums have been paid to it by the Company or by any other
obligor of such Debentures) in trust for the benefit of the
persons entitled thereto;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor of such
Debentures) to make any payment of the principal of (and
premium, if any) or interest on the Debentures of that
series when the same shall be due and payable;
(3) that it will, at any time during the
continuance
of any failure referred to in clause (2) above, upon the
written request of the Trustee, immediately pay to the
Trustee all sums so held in trust by such paying agent; and
(4) that it will perform all other duties of
paying agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent
with respect to any series of the Debentures, it will on or
before each due date of the principal of (and premium, if
any) or interest on Debentures of that series, set aside,
segregate and hold in trust for the benefit of the persons
entitled to receive such principal, premium or interest, a
sum sufficient to pay such principal (and premium, if any)
or interest so becoming due on Debentures of that series
until such sums shall be paid to such persons or otherwise
disposed of as provided in this Indenture and will promptly
notify the Trustee of such action, or any failure (by it or
any other obligor on such Debentures) to take such action.
Whenever the Company shall have one or more paying agents
for any series of Debentures, it will, prior to each due
date of the principal of (and premium, if any) or interest
on any Debentures of that series, deposit with the paying
agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held, in
trust for the benefit of the persons entitled to such
principal, premium or interest, and (unless such paying
agent is the Trustee) the Company promptly will notify the
Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary
notwithstanding, (i) the agreement to hold sums in trust as
provided in this Section is subject to the provisions of
Section 11.03, and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any
paying agent to pay, to the Trustee all sums held in trust
by the Company or such paying agent, such sums to be held by
the Trustee upon the same terms and conditions as those upon
which such sums were held by the Company or such paying
agent; and, upon such payment by any paying agent to the
Trustee, such paying agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any paying
agent, or then held by the Company, in trust for the payment
of the principal of and premium, if any, or interest, if
any, on any Debenture and remaining unclaimed for two years
after such principal and premium, if any, or interest has
become due and payable shall be paid to the Company on
written request of the Company, or, if then held by the Com
pany, shall be discharged from such trust; and, upon such
payment or discharge, the Holder of such Debenture shall, as
an unsecured general creditor and not as a Holder of an
Outstanding Debenture, look only to the Company for payment
of the amount so due and payable and remaining unpaid, and
all liability of the Trustee or such paying agent with
respect to such trust money, and all liability of the
Company as trustee of such trust money, shall thereupon
cease; provided, however, that the Trustee or such paying
agent, before being required to make any such payment to the
Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that
such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from
the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
023. The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 7.10, a Trustee, so that
there shall at all times be a Trustee under this Indenture.
024. The Company will not, while any of the
Debentures remain Outstanding, consolidate with, or merge
into, or merge into itself, or sell or convey all or
substantially all of its property to any other company
unless the provisions of Article Ten are complied with.
025. The Company will not declare or pay any
dividend on, or redeem, purchase, acquire or make a
distribution or liquidation payment with respect to, any of
its capital stock if at such time (i) there shall have
occurred and be continuing any event that would constitute
an Event of Default under the Indenture, (ii) the Company
shall be in default with respect to its payment of any
obligations under any Guarantee, if issued or (iii) the
Company shall have given notice of its selection of an
extended interest payment period as provided in Section 2.01
of this Indenture and such period, or any extension of such
period, shall be continuing.
ARTICLE FIVE
Debentureholders' Lists and Reports by the Company
and the Trustee
026. Semiannually, not later than June 30 and
December 1 in each year, commencing December 1, 1994, and at
such other times as the Trustee may request in writing, the
Company will 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 each series of
Debentures as of such regular record date, provided, that
the Company shall not be obligated to furnish or cause to be
furnished such list at any time that the list shall not
differ in any respect from the most recent list furnished to
the Trustee by the Company; provided, further, that no such
list need be furnished for any series of Debentures for
which the Trustee shall be the Debenture Registrar.
027. Not later than December 31 in each year, the
Trustee shall transmit to the Debentureholders and the
Commission a report with respect to any events and other
matters described in Section 313(a) of the Trust Indenture
Act, in such manner and to the extent required by the Trust
Indenture Act. The Trustee shall transmit to the
Debentureholders and the Commission, and the Company shall
file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the
Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the
Debentureholders, such other information, reports and other
documents, if any, at such times and in such manner, as
shall be required by the Trust Indenture Act.
ARTICLE SIX
Remedies of the Trustee and Debentureholders
on Event of Default
028. (a) Whenever used in this Indenture with
respect to Debentures of a particular series, "Event of
Default" means any one or more of the following events which
has occurred and is continuing:
(1) default in the payment of any installment of
interest, including any Additional Interest, upon any of the
Debentures of that series, as and when the same shall become
due and payable, and continuance of such default for a
period of 10 days (whether or not payment is prohibited by
the provisions of Article Fourteen of this Indenture);
provided, however, that a valid extension of the interest
payment period by the Company pursuant to Section 2.01(6)
shall not constitute a failure to pay interest for this
purpose;
(2) default in the payment of the principal of
(or
premium, if any, on) any of the Debentures of that series as
and when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise, or
in any payment required by any sinking or analogous fund
established with respect to that series (whether or not
payment is prohibited by the provisions of Article Fourteen
of this Indenture);
(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 with respect to that series contained in
such Debentures or otherwise established with respect to
that series of Debentures pursuant to Section 2.01 or
contained in this Indenture (other than a covenant or
agreement which has been expressly included in this
Indenture solely for the benefit of one or more series of
Debentures other than such series) for a period of 90 days
after the date on which written notice of such failure,
requiring the same to be remedied and stating that such
notice is a "Notice of Default" under this Indenture, shall
have been given to the Company by the Trustee, by registered
or certified mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the
Debentures of that series at the time Outstanding;
(4) a decree or order by a court having
jurisdiction
in the premises shall have been entered adjudging the
Company or Illinois Power Capital a bankrupt or insolvent,
or approving as properly filed a petition seeking
liquidation or reorganization of the Company under the
Federal Bankruptcy Code or any other similar applicable
federal or state law, and such decree or order shall have
continued unvacated and unstayed for a period of 90
consecutive days; or an involuntary case shall be commenced
under such Code in respect of the Company or Illinois Power
Capital and shall continue undismissed for a period of 90
days or an order for relief in such case shall have been
entered; or a decree or order of a court having jurisdiction
in the premises shall have been entered for the appointment
on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy
or insolvency of the Company or Illinois Power Capital or a
substantial portion of its property, or for the winding up
or liquidation of its affairs, and such decree or order
shall have remained in force unvacated and unstayed for a
period of 90 consecutive days;
(5) the Company or Illinois Power Capital shall
institute proceedings to be adjudicated a voluntary
bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or
consent seeking liquidation or reorganization under the
Federal Bankruptcy Code or any other similar applicable
federal or state law, or shall consent to the filing of any
such petition, or shall consent to the appointment on the
ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy
or insolvency of it or of its property, or shall make an
assignment for the benefit of creditors; or
(6) so long as any series of Debentures issued in
connection with the application of the proceeds from the
issuance and sale of a series of Preferred Securities of
Illinois Power Capital remain Outstanding, Illinois Power
Capital shall have dissolved, wound up its business or
otherwise terminated its existence except in connection with
the distribution of Debentures to limited partners of
Illinois Power Capital in liquidation of their interests in
Illinois Power Capital and in connection with certain
mergers, consolidations or amalgamations permitted by the
Limited Partnership Agreement.
(b) In each and every such case, unless the principal
of all the Debentures of that series shall have already
become due and payable, either the Trustee or the holders of
not less than 25% in aggregate principal amount of the
Debentures of that series then Outstanding under this
Indenture, by notice in writing to the Company (and to the
Trustee if given by such Debentureholders), may declare the
principal of all the Debentures of that series to be due and
payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable,
anything contained in this Indenture or in the Debentures of
that series or established with respect to that series
pursuant to Section 2.01 to the contrary notwithstanding.
(c) This provision, however, is subject to the
condition that if, at any time after the principal of the
Debentures of that series 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 provided below, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debentures of that
series and the principal of (and premium, if any, on) any
and all Debentures of that series which shall have become
due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such
payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in
the Debentures of that series to the date of such payment or
deposit) and the amount payable to the Trustee under Section
7.06, and any and all defaults under the Indenture, other
than the nonpayment of principal on Debentures of that
series which shall not have become due by their terms, shall
have been remedied or waived as provided in Section 6.06
then and in every such case the holders of a majority in
aggregate principal amount of the Debentures of that series
then Outstanding, by written notice to the Company and to
the Trustee, may rescind and annul such declaration and its
consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall
impair any right consequent on such subsequent default.
(d) In case the Trustee shall have proceeded to
enforce any right with respect to Debentures of that series
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 former positions and rights under this
Indenture, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such
proceedings had been taken.
029. (a) The Company covenants that (1) in case
default shall be made in the payment of any installment of
interest on any of the Debentures of a series, or any
payment required by any sinking or analogous fund
established with respect to that series as and when the same
shall have become due and payable, and such default shall
have continued for a period of 10 Business Days or (2) in
case default shall be made in the payment of the principal
of (or premium, if any, on) any of the Debentures of a
series when the same shall have become due and payable,
whether upon maturity of the Debentures of a series or upon
redemption or upon declaration or otherwise, then, upon
demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Debentures of that
series, the whole amount that then shall have become due and
payable on all such Debentures for principal (and premium,
if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any)
and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue installments
of interest at the rate per annum expressed in the
Debentures of that series; and, in addition to the foregoing
amounts, such further amount as shall be sufficient to cover
the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(a) In case the Company shall fail immediately 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 action or proceedings at law or
in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceeding to judgment
or final decree, and may enforce any such judgment or final
decree against the Company or other obligor upon the
Debentures of that series and collect in the manner provided
by law out of the property of the Company or other obligor
upon the Debentures of that series wherever situated the
moneys adjudged or decreed to be payable.
(b) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment,
arrangement, composition or other judicial proceedings
affecting the Company, any other obligor on such Debentures,
or the creditors or property of either, the Trustee shall
have power to intervene in such proceedings and take any
action in such proceedings that may be permitted by the
court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers
and documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of
Debentures of such series allowed for the entire amount due
and payable by the Company or such other obligor under the
Indenture at the date of institution of such proceedings and
for any additional amount which may become due and payable
by the Company or such other obligor after such date, and to
collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same
after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is authorized by each of the
holders of Debentures of such series to make such payments
to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such
Debentureholders, to pay to the Trustee any amount due it
under Section 7.06.
(c) All rights of action and of asserting claims under
this Indenture, or under any of the terms established with
respect to Debentures of that series, may be enforced by the
Trustee without the possession of any of such Debentures, or
the production of such Debentures at any trial or other
proceeding relative to such Debentures, and any such suit or
proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of
judgment shall, after provision for payment to the Trustee
of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Debentures of such series.
In case of an Event of Default under this Indenture,
the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or
agreement contained in the Indenture or in aid of the
exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
Nothing contained in this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Debentureholder any plan of
reorganization, arrangement, adjustment or composition
affecting the Debentures of that series or the rights of any
holder of such Debentures or to authorize the Trustee to
vote in respect of the claim of any Debentureholder in any
such proceeding.
030. Any moneys collected by the Trustee pursuant
to Section 6.02 with respect to a particular series of
Debentures shall be applied in the order following, at the
date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or
premium, if any) or interest, upon presentation of the
several Debentures of that series, and stamping thereon the
payment, if only partially paid, and upon surrender of such
Debenture if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee
under Section 7.06; and
SECOND: To the payment of the amounts then due
and unpaid upon Debentures of such series for principal
(and premium, if any) and interest, in respect of which
or for the benefit of which such money has been
collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on
such Debentures for principal (and premium, if any) and
interest, respectively.
031. No holder of any Debenture of any series
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 under this Indenture,
unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the
continuance of such Event of Default with respect to
Debentures of such series specifying such Event of Default,
as provided above, and unless also the holders of not less
than 25% in aggregate principal amount of the Debentures of
such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or
proceeding in its own name as trustee under this Indenture
and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and
liabilities to be incurred in such action, suit or
proceeding, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding; it
being understood and intended, and being expressly
covenanted by the taker and holder of every Debenture of
such series with every other such taker and holder and the
Trustee, that no one or more holders of Debentures of such
series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of
any other of such Debentures, 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
provided in this Indenture and for the equal, ratable and
common benefit of all holders of Debentures of such series.
For the protection and enforcement of the provisions of this
Section, each and every Debentureholder and the Trustee
shall be entitled to such relief as can be given either at
law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Debenture to receive
payment of the principal of (and premium, if any) and
interest on such Debenture, as provided in such Debenture,
on or after the respective due dates expressed in such
Debenture (or in the case of redemption, on the redemption
date), or to institute suit for the enforcement of any such
payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent
of such holder.
032. (a) All powers and remedies given by this
Article to the Trustee or to the Debentureholders shall, to
the extent permitted by law, be deemed cumulative and not
exclusive of any other of such powers and remedies or of any
other powers and remedies available to the Trustee or the
holders of the Debentures, by judicial proceedings or
otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or
otherwise established with respect to such Debentures.
(a) No delay or omission of the Trustee or of any
holder of any of the Debentures to exercise any right or
power accruing upon any Event of Default occurring and
continuing as provided above shall impair any such right or
power, or shall be construed to be a waiver of any such
default or an acquiescence in such default; and, subject to
the provisions of Section 6.04, every power and remedy given
by this Article or by law to the Trustee or to the
Debentureholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the
Debentureholders.
033. The holders of a majority in a principal
amount of the Debentures of any series at the time
Outstanding, determined in accordance with Section 8.04,
shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the
Trustee with respect to such series; provided, however, that
such direction shall not be in conflict with any rule of law
or with this Indenture or unduly prejudicial to the rights
of holders of Debentures of any other series at the time
Outstanding determined in accordance with Section 8.04 not
parties to such proceeding. Subject to the provisions of
Section 7.01 the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the
Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Debentures of all series
at the time Outstanding affected by such waiver, determined
in accordance with Section 8.04, may on behalf of the
holders of all of the Debentures of such series waive any
past default in the performance of any of the covenants
contained in this Indenture or established pursuant to
Section 2.01 with respect to such series and its
consequences, except a default in the payment of the
principal of, or premium, if any, or interest on, any of the
Debentures of that series as and when the same shall become
due by the terms of such Debentures or a call for redemption
of Debentures of that series. Upon any such waiver, the
default covered by such waiver shall be deemed to be cured
for all purposes of this Indenture and the Company, the
Trustee and the holders of the Debentures of such series
shall be restored to their former positions and rights under
this Indenture, respectively; but no such waiver shall
extend to any subsequent or other default or impair any
right consequent on such waiver.
034. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series,
transmit by mail, first class postage prepaid, to the
holders of Debentures of that series, as their names and
addresses appear upon the Debenture Register, notice of all
defaults with respect to that series known to the Trustee,
unless such defaults shall have been cured before the giving
of such notice (the term "defaults" for the purposes of this
Section being the events specified in subsections (1), (2),
(3), (4), (5) and (6) of Section 6.01(a), not including any
periods of grace provided for in Section 6.01(a) and
irrespective of the giving of notice provided for by
subsection (3) of Section 6.01(a)); provided, that, except
in the case of default in the payment of the principal of
(or premium, if any) or interest on any of the Debentures of
that series or in the payment of any sinking fund
installment established with respect to that series, the
Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee,
or a trust committee of directors and/or Responsible
Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the
holders of Debentures of that series; provided further, that
in the case of any default of the character specified in
Section 6.01(a)(3) with respect to Debentures of such series
no such notice to the holders of the Debentures of that
series shall be given until at least 30 days after the
occurrence of such default.
The Trustee shall not be deemed to have knowledge of
any default, except (i) a default under Section 6.01 (a)(1)
or (a)(2) as long as the Trustee is acting as paying agent
for such series of Debentures or (ii) any default as to
which the Trustee shall have received written notice or a
Responsible Officer charged with the administration of this
Indenture shall have obtained written notice.
035. All parties to this Indenture agree, and each
holder of any Debentures by his or her acceptance of such
Debenture 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 or omitted by it as
Trustee, the filing by, any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit
instituted by any Debentureholder, or group of
Debentureholders, holding more than 10% in aggregate
principal amount of the Outstanding Debentures of any
series, or to any suit instituted by any Debentureholder for
the enforcement of the payment of the, principal of (or
premium, if any) or interest on any Debenture of such
series, on or after the respective due dates expressed in
such Debenture or established pursuant to this Indenture.
ARTICLE SEVEN
Concerning the Trustee
036. (a) The Trustee shall have and be subject to
all the duties and responsibilities specified with respect
to an indenture trustee under the Trust Indenture Act.
(a) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) prior to the occurrence of an Event of
Default
with respect to Debentures of a series and after the curing
or waiving of all such Events of Default with respect to
that series which may have occurred:
(i) the duties and obligations of the
Trustee shall with respect to Debentures of such series be determined
solely by the express provisions of this Indenture, and
the Trustee shall not be liable with respect to Debentures
of such series 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
(ii) in the absence of bad faith on the part
of the Trustee, the Trustee may with respect to Debentures of
such series conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed in such
Debenture, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture; but in the case of and such certificates or
opinions which by any provision of this Indenture 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
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the holders of not less
than a majority in principal amount of the Debentures of any
series at the time Outstanding relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect
to the Debentures of that series; and
(4) None of the provisions contained in this
Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not
reasonably assured to it.
037. Except as otherwise provided in Section 7.01
and in the Trust Indenture Act:
(a) The Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security 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 in this Indenture shall be sufficiently
evidenced by a Board Resolution or an instrument signed in
the name of the Company by the Chairman or any Vice
President and by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer (unless other
evidence in respect such request, direction, order or demand
is specifically prescribed in this Indenture);
(c) The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted under
this Indenture in good faith and in reliance on such advice
or opinion;
(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
Debentureholders, pursuant to the provisions of this
Indenture, unless such Debentureholders shall have offered
to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred in the
exercise of such rights or power; nothing contained in this
Indenture shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with
respect to a series of the Debentures (which has not been
cured or waived) to exercise with respect to Debentures of
that series such of the rights and powers vested in it by
this Indenture, and to 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;
(e) The Trustee shall not be liable for any action
taken or omitted to be taken 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) 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, bond,
security, or other papers or documents, unless requested in
writing so to do by the holders of not less than a majority
in principal amount of the Outstanding Debentures of the
particular series affected by such facts or matters
(determined as provided in Section 8.04); provided, however,
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 the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding.
The reasonable expense of every such examination shall be
paid by the Company or, if paid by the Trustee, shall be
repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or
powers under this Indenture or perform any duties under this
Indenture either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it under this Indenture.
038. (a) The recitals contained in this Indenture
and in the Debentures (other than the Certificate of
Authentication on the Debentures) shall be taken as the
statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(a) The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the
Debentures.
(b) The Trustee shall not be accountable for the use
or application by the Company of any of the Debentures or of
the proceeds of such Debentures, or for the use or
application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or
established pursuant to Section 2.01, or for the use or
application of any moneys received by any paying agent other
than the Trustee.
039. The Trustee or any paying agent or Debenture
Registrar, in its individual or any other capacity, may
become the owner or pledgee of Debentures and, subject to
Sections 7.08 and 7.13, may otherwise deal with the Company
with the same rights it would have if it were not the
Trustee, paying agent or Debenture Registrar.
040. Subject to the provisions of Section 11.03,
all money received by the Trustee shall, until used or
applied as provided in this Indenture, be held in trust for
the purposes for which it was received, but need not be
segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest
on any money received by it under this Indenture except such
as it may agree with the Company to pay on such money.
041. (a) 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 provision of law in regard to the
compensation of a trustee of an express trust) for all
services rendered by it in the execution of the trusts
created by this Indenture and in the exercise and
performance of any of the powers and duties of the Trustee
under this Indenture, and the Company will pay or reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its counsel 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 (and its officers, agents, directors and employees)
for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, willful misconduct 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 of liability in the premises.
(a) The obligations of the Company under this Section
to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness under this
Indenture. Such additional indebtedness shall be secured by
a lien prior to that of the Debentures 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 particular
Debentures.
042. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or
suffering or omitting to take any action under this
Indenture, such matter (unless other evidence in respect of
such matter be specifically prescribed in this Indenture)
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 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 to be taken by it under the provisions of this
Indenture upon the faith of such Officers' Certificate.
043. If the Trustee has or shall acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with the
effect, and subject to the conditions, provided in the Trust
Indenture Act or this Indenture. For purposes of Section
310(b)(1) of the Trust Indenture Act and to the extent
permitted by that Section, the Trustee, in its capacity as
trustee in respect of the Debentures of any series, shall
not be deemed to have a conflicting interest arising from
its capacity as trustee in respect of the Debentures of any
other series.
044. There shall at all times be a Trustee with
respect to the Debentures issued under this Indenture which
shall at all times be a corporation organized and doing
business under the laws of the United States of America or
any state or territory of the United States or of the
District of Columbia, or a corporation or other person
permitted to act as trustee by the Commission, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million dollars,
subject to supervision or examination by federal, state,
territorial, or District of Columbia authority and qualified
and eligible under the Trust Indenture Act. If such
corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such
supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition
so published. The Company may not, nor may any person
directly or indirectly controlling, controlled by, or under
common control with the Company, serve as Trustee. In case
at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect
specified in Section 7.10.
045. (a) The Trustee or any successor hereafter
appointed, may at any time resign with respect to the
Debentures of one or more series by giving written notice of
such resignation to the Company and by transmitting notice
of resignation by mail, first class postage prepaid, to the
Debentureholders of such series, as their names and
addresses appear upon the Debenture Register. Upon
receiving such notice of resignation, the Company shall by
Board Resolution promptly appoint a successor trustee with
respect to Debentures of such series. If no successor
trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice
of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor
trustee with respect to Debentures of such series, or any
Debentureholder of that series who has been a bona fide
holder of a Debenture or Debentures for at least six months
may, subject to the provisions of Section 6.08, on behalf of
himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(a) If at any time:
(1) the Trustee shall fail to comply with the
provisions of Section 7.08 after written request therefor by
the Company or by any Debentureholder who has been a bona
fide holder of a Debenture or Debentures for at least six
months; or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the Company
or by any such Debentureholder of Debentures; or
(3) the Trustee shall become incapable of acting,
or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company by a Board Resolution
may remove the Trustee with respect to all Debentures and
appoint a successor trustee, or, subject to the provisions
of Section 6.08, unless the Trustee's duty to resign is
stayed as provided in this Indenture, any Debentureholder
who has been a bona fide holder of a Debenture or Debentures
for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor
trustee.
(b) The holders of a majority in aggregate principal
amount of the Debentures of any series at the time
Outstanding may at any time remove the Trustee with respect
to such series and appoint a successor trustee.
(c) No resignation or removal of the Trustee and no
appointment of a successor trustee with respect to the
Debentures of a series pursuant to any of the provisions of
this Section shall become effective until acceptance of
appointment by the successor trustee as provided in Section
7.11.
(d) Any successor trustee appointed pursuant to this
Section may be appointed with respect to the Debentures of
one or more series or all of such series, and at any time
there shall be only one Trustee with respect to the
Debentures of any particular series.
(e) The Company shall give notice of such resignation
with respect to the Debentures of any series and each
appointment of a successor trustee with respect to the
Debentures of any series by mailing written notice of such
event by first-class mail, postage prepaid, to all
Debentureholders of such series as their names and addresses
appear in the Debenture Register. Each notice shall include
the name of the successor trustee with respect to the
Debentures of such series and the address of its corporate
trust office. If the Company fails to transmit such notice
within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such
notice to be transmitted at the expense of the Company.
046. (a) In case of the appointment under this
Indenture of a successor trustee with respect to all
Debentures, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
and upon such delivery the resignation or removal of the
retiring Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company
or the successor trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights,
powers, and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor trustee all
property and money held by such retiring Trustee under this
Indenture.
(a) In case of the appointment under this Indenture of
a successor trustee with respect to the Debentures of one or
more (but not all) series, the Company, the retiring Trustee
and each successor trustee with respect to the Debentures of
one or more series shall execute and deliver an indenture
supplemental to this Indenture in which each successor
trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor
trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debentures of that or
those series to which the appointment of such successor
trustee relates, (2) shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee
with respect to the Debentures of that or those series as to
which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee and (3) shall add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts under this Indenture by more than one Trustee, it
being understood that nothing in this Indenture or in such
supplemental indenture shall constitute such Trustees co-
trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts under this Indenture separate
and apart from any trust or trusts under this Indenture
administered by any other such Trustee and that no Trustee
shall be responsible for any act or failure to act on the
part of any other Trustee under this Indenture; and upon the
execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided in such supplemental
indenture, such retiring Trustee shall with respect to the
Debentures of that or those series to which the appointment
of such successor trustee relates have no further
responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the
Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debentures of
that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or
any successor trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor trustee, to
the extent contemplated by such supplemental indenture, the
property and money held by such retiring Trustee under this
Indenture with respect to the Debentures of that or those
series to which the appointment of such successor trustee
relates.
(b) Upon request of any such successor trustee, the
Company shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor
trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(c) No successor trustee shall accept its appointment
unless at the time of such acceptance such successor trustee
shall be qualified and eligible under this Article.
047. 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 the corporate trust business of
the Trustee, shall be the successor of the Trustee under
this Indenture; provided such corporation shall be qualified
under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09, without the execution or filing
of any paper or any further act on the part of any of the
parties to this Indenture, anything in this Indenture to the
contrary notwithstanding. In case any Debentures shall have
been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debentures so authenticated
with the same effect as if such successor Trustee had itself
authenticated such Debentures.
048. If the Trustee shall be or shall become a
creditor, directly or indirectly, secured or unsecured, of
the Company or any other obligor upon the Debentures (other
than by reason of a relationship described in Section 311(b)
of the Trust Indenture Act), the Trustee shall be subject to
any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company or
such other obligor. For purposes of Section 311(b) of the
Trust Indenture Act:
(a) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand; and
(b) the term "self-liquidating paper" shall mean
any
draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacture,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
ARTICLE EIGHT
Concerning the Debentureholders
049. Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in
aggregate principal amount of the Debentures of a particular
series may take any action (including the making of any
demand or request, the giving of any notice, consent or
waiver or the taking of any other action), the fact that at
the time of taking any such action the holders of such
majority or specified percentage of that series have joined
in such action may be evidenced by any instrument or any
number of instruments of similar tenor executed by such
holders of Debentures of that series in person or by agent
or proxy appointed in writing.
If the Company shall solicit from the Debentureholders
of any series any request, demand, authorization, direction,
notice, consent, waiver or other action, the Company may, at
its option, as evidenced by an Officers' Certificate, fix in
advance a record date for such series for the determination
of Debentureholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but
only the Debentureholders of record at the close of business
on the record date shall be deemed to be Debentureholders
for the purposes of determining whether Debentureholders of
the requisite proportion of Outstanding Debentures of that
series have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding
Debentures of that series shall be computed as of the record
date; provided that no such authorization, agreement or
consent by such Debentureholders on the record date shall be
deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six
months after the record date.
050. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a
Debentureholder (such proof will not require notarization)
or such Debentureholder's agent or proxy and proof of the
holding by any person of any of the Debentures shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any
such
person of any instrument may be proved in any reasonable
manner acceptable to the Trustee.
(b) The ownership of Debentures shall be proved
by the
Debenture Register of such Debentures or by a certificate of
the Debenture Registrar of such ownership.
(c) The Trustee may require such additional proof
of
any matter referred to in this Section as it shall deem
necessary.
051. Prior to the due presentment for registration
of transfer of any Debenture, the Company, the Trustee, any
paying agent and any Debenture Registrar may deem and treat
the person in whose name such Debenture shall be registered
upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue
and notwithstanding any notice of ownership or writing on
such Debenture made by anyone other than the Debenture
Registrar) for the purpose of receiving payment of or on
account of the principal of, premium, if any, and (subject
to Section 2.03) interest on such Debenture and for all
other purposes; and neither the Company nor the Trustee nor
any paying agent nor any Debenture Registrar shall be
affected by any notice to the contrary.
052. In determining whether the holders of the
requisite aggregate principal amount of Debentures of a
particular series have concurred in any direction, consent
or waiver under this Indenture, Debentures of that series
which are owned by the Company or any other obligor on the
Debentures of that series or by any person directly or
indirectly controlling or controlled by or under common
control with the Company or any other obligor on the
Debentures of that series (unless the Company or such other
obligor or person directly or indirectly controlling or
controlled by or under common control with the Company or
such other obligor owns all Debentures Outstanding or all
Debentures of such series, as the case may be) shall be
disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only
Debentures of such series which the Trustee actually knows
are so owned shall be so disregarded. Debentures so owned
which have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee
shall establish to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Debentures
and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor.
In case of a dispute as to such right, any decision by the
Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
053. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of
the taking of any action by the holders of the majority or
percentage in aggregate principal amount of the Debentures
of a particular series specified in this Indenture in
connection with such action, any holder of a Debenture of
that series which is shown by the evidence to be included in
the Debentures the holders of which have consented to such
action may, by filing written notice with the Trustee, and
upon proof of holding as provided in Section 8.02, revoke
such action so far as concerns such Debenture. Except as
provided in the immediately preceding sentence, any such
action taken by the holder of any Debenture shall be
conclusive and binding upon such holder and upon all future
holders and owners of such Debenture, and of any Debenture
issued in exchange for such Debenture, on registration of
transfer of such Debenture or in place of such Debenture,
irrespective of whether or not any notation in regard to
such Debenture is made upon such Debenture. Any action
taken by the holders of the majority or percentage in
aggregate principal amount of the Debentures of a particular
series specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the
Trustee and the holders of all the Debentures of that
series.
ARTICLE NINE
Supplemental Indentures
054. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, when
authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or
indentures supplemental to this Indenture (which shall
conform to the provisions of the Trust Indenture Act),
without the consent of the Debentureholders, for one or more
of the following purposes:
(a) to evidence the succession of another
corporation
to the Company, and the assumption by any such successor of
the covenants of the Company contained in this Indenture or
otherwise established with respect to the Debentures; or
(b) to add to the covenants of the Company such
further covenants, restrictions, conditions or provisions
for the protection of the holders of the Debentures of all
or any series as the Board of Directors and the Trustee
shall consider to be for the protection of the holders of
Debentures of all or any series, and to make the occurrence,
or the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or
provisions a default or an Event of Default with respect to
such series permitting the enforcement of all or any of the
several remedies provided in this Indenture as set forth in
it; provided, however, that in respect of any such
additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee
upon such default or may limit the right of the holders of a
majority in aggregate principal amount of the Debentures of
such series to waive such default; or
(c) to cure any ambiguity or to correct or
supplement
any provision contained in this Indenture or in any
supplemental indenture which may be defective or
inconsistent with any other provision contained in this
Indenture or in any supplemental indenture, or to make such
other provisions in regard to matters or questions arising
under this Indenture as shall not be inconsistent with the
provisions of this Indenture and shall not adversely affect
the interests of the holders of the Debentures of any
series; or
(d) to change or date any of the provisions of
this
Indenture, provided that any such change or elimination
shall become effective only when there is no Debenture
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision.
The Trustee is authorized to join with the Company in
the execution of any such supplemental indenture, and to
make any further appropriate agreements and stipulations
which may be contained in such supplemental indenture, 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.
Any supplemental indenture authorized by the provisions
of this Section may be executed by the Company and the
Trustee without the consent of the holders of any of the
Debentures at the time Outstanding, notwithstanding any of
the provisions of Section 9.02.
055. With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in
aggregate principal amount, of the Debentures of each series
affected by such supplemental indenture or indentures at the
time Outstanding, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental to
this Indenture (which shall conform to the provisions of the
Trust Indenture Act) 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 in any manner the rights of the
holders of the Debentures of such series under this
Indenture; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any
Debenture of any series, or reduce the principal amount of
such Debenture, or reduce the rate or extend the time of
payment of interest on such Debenture, or reduce any premium
payable upon the redemption of such Debenture, without the
consent of the holder of each Debenture so affected or (ii)
reduce the aforesaid percentage of Debentures, the holders
of which are required to consent to any such supplemental
indenture, without the consent of the holders of each
Debenture then Outstanding and so affected.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Debentureholders required to
consent to such supplemental indenture as provided above,
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.
It shall not be necessary for the consent of the
Debentureholders of any series affected by a supplemental
indenture under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance of
such supplemental indenture.
Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the
provisions of this Section, the Trustee shall transmit by
mail, first class postage prepaid, a notice, setting forth
in general terms the substance of such supplemental
indenture, to the Debentureholders of all series affected by
such supplemental indenture as their names and addresses
appear upon the Debenture Register. Any failure of the
Trustee to mail such notice, or any defect in such notice,
shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
056. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to such
series, be and be deemed to be modified and amended in
accordance with such supplemental indenture and the
respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee,
the Company and the holders of Debentures of the series
affected by such supplemental indenture shall thereafter be
determined, exercised and enforced under this Indenture
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.
057. Debentures of any series affected by a
supplemental indenture, authenticated and delivered after
the execution of such supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form
meets the requirements of any exchange upon which such
series may be listed, as to any matter provided for in such
supplemental indenture. If the Company shall so determine,
new Debentures of that series so modified as to conform, in
the opinion of the Board of Directors, to any modification
of this Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by
the Trustee and delivered in exchange for the Debentures of
that series then Outstanding.
058. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join
in the execution such supplemental indenture.
ARTICLE TEN
Consolidation, Merger and Sale
059. Nothing contained in this Indenture or in any
of the Debentures shall prevent any consolidation or merger
of the Company with or into any other corporation or
corporations (whether or not affiliated with the Company),
or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company or its successor
or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors)
authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon
any such consolidation, merger, sale, conveyance, transfer
or other disposition, the due and punctual payment of the
principal of (premium, if any) and interest on all of the
Debentures of all series in accordance with the terms of
each series, according to their tenor, and the due and
punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or
established with respect to such series pursuant to Section
2.01 to be kept or performed by the Company, shall be
expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act)
satisfactory in form to the Trustee executed and delivered
to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the
entity which shall have acquired such property.
060. (a) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and
upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of, premium, if any,
and interest on all of the Debentures of all series
Outstanding and the due and punctual performance of all of
the covenants and conditions of this Indenture or
established with respect to each series of the Debentures,
pursuant to Section 2.01 to be performed by the Company with
respect to each series, such successor corporation shall
succeed to and be substituted for the Company, with the same
effect as if it had been named in this Indenture as the
party of the first part, and upon satisfaction of the
foregoing conditions the predecessor corporation shall be
relieved of all obligations and covenants under this
Indenture and the Debentures. Such successor corporation
may cause to be signed, and may issue either in its own name
or in the name of the Company or any other predecessor
obligor on the Debentures, any or all of the Debentures
issuable under this Indenture which prior to that time shall
not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor company,
instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Debentures
which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication,
and any Debentures which such successor corporation shall
after that cause to be signed and delivered to the Trustee
for that purpose. All the Debentures so issued shall in all
respects have the same legal rank and benefit under this
Indenture as the Debentures previously or thereafter issued
in accordance with the terms of this Indenture as though all
of such Debentures had been issued at the date of the
execution of this Indenture.
(a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in
phraseology and form (but not in substance) may be made in
the Debentures thereafter to be issued as may be
appropriate.
(b) Nothing contained in this Indenture or in any of
the Debentures shall prevent the Company from merging into
itself or acquiring by purchase or otherwise all or any part
of the property of any other corporation (whether or not
affiliated with the Company).
061. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any
such assumption, comply with the provisions of this Article.
ARTICLE ELEVEN
Satisfaction and Discharge of Indenture;
Unclaimed Moneys
062. Any Debenture or Debentures, or any portion
of the principal amount of any Debenture or Debentures,
shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in
respect of any Debenture or Debentures shall be deemed to
have been satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any paying agent
(other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the stated
maturity date of such Debentures or portions of such
Debentures, Governmental Obligations, which shall not
contain provisions permitting the redemption or other
prepayment of such Governmental Obligations at the option of
the issuer of such Governmental Obligations, the principal
of and the interest on which when due, without any regard to
reinvestment of such Governmental Obligations, will provide
moneys which, together with the money deposited with or held
by the Trustee or such paying agent, shall be sufficient or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Debentures
or portions of such Debentures on or prior to stated
maturity date; provided, however, that in the case of the
provision for payment or redemption of less than all the
Debentures of any series, such Debentures or portions of
such Debentures shall have been selected by the Debenture
Registrar as provided in this Indenture and, in the case of
a redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority
shall have been given by the Company to the Trustee to give
such notice, under arrangements satisfactory to the Trustee;
and provided, further, that the Company shall have delivered
to the Trustee and such paying agent:
(x) if such deposit shall have been made prior to
the stated maturity date of such Debentures, a
Certificate stating that the money and Governmental
Obligations deposited in accordance with this Section
shall be held in trust, as provided in Section 11.03;
and
(y) if Governmental Obligations shall have been
deposited, an Opinion of Counsel that the obligations
so deposited constitute Governmental Obligations and do
not contain provisions permitting the redemption or
other prepayment at the option of the issuer of such
Governmental Obligations, and an opinion of an
independent public accountant of nationally recognized
standing, selected by the Company, to the effect that
the requirements set forth in clause (b) above have
been satisfied; and
(z) if such deposit shall have been made prior to
the stated maturity date of such Debentures, an Opinion
of Counsel to the effect that the holders of such
Debentures will not recognize income, gain or loss for
federal income tax purposes as a result of the
satisfaction and discharge of the Company's
indebtedness in respect of such Debentures, and such
holders will be subject to federal income taxation on
the same amounts and in the same manner and at the same
times as if such satisfaction and discharge had not
occurred.
Upon the deposit of money or Governmental Obligations,
or both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the
Trustee shall, upon receipt of a Certificate, acknowledge in
writing that the Debenture or Debentures or portions of such
Debenture or Debentures with respect to which such deposit
was made are deemed to have been paid for all purposes of
this Indenture and that the entire indebtedness of the
Company in respect of such Debenture or Debentures has been
satisfied and discharged as contemplated in this Section.
In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect of
any Debentures or portions of such Debentures except that,
for any reason, the Opinion of Counsel specified in clause
(z) shall not have been delivered, such Debentures or
portions of such Debentures shall nevertheless be deemed to
have been paid for all purposes of this Indenture, and the
holders of such Debentures or portions of such Debentures
shall nevertheless be no longer entitled to the benefits of
this Indenture or of any of the covenants of the Company
under Article Four (except the covenants contained in
Sections 4.02 and 4.03 or any other covenants made in
respect of such Debentures or portions of such Debentures as
contemplated by Section 2.01, but the indebtedness of the
Company in respect of such Debentures or portions of such
Debentures shall not be deemed to have been satisfied and
discharged prior to stated maturity date for any other
purposes, and the holders of such Debentures or portions of
such Debentures shall continue to be entitled to look to the
Company for payment of the indebtedness represented by such
Debentures; and, upon receipt of a Certificate, the Trustee
shall acknowledge in writing that such Debentures or
portions of such Debentures are deemed to have been paid for
all purposes of this Indenture.
If payment at stated maturity date of less than all of
the Debentures of any series is to be provided for in the
manner and with the effect provided in this Section, the
Debenture Registrar shall select such Debentures, or
portions of principal amount of such Debentures, in the
manner specified by Section 3.02(b) for selection for
redemption of less than all the Debentures of a series.
In the event that Debentures which shall be deemed to
have been paid for purposes of this Indenture, and, if such
is the case, in respect of which the Company's indebtedness
shall have been satisfied and discharged, all as provided in
this Section, do not mature and are not to be redeemed
within the sixty (60) day period commencing with the date of
the deposit of moneys or Governmental Obligations, as
provided above, the Company shall, as promptly as
practicable, give a notice, in the same manner as a notice
of redemption with respect to such Debentures, to the
holders of such Debentures to the effect that such deposit
has been made and the effect of such deposit.
Notwithstanding that any Debentures shall be deemed to
have been paid for purposes of this Indenture, as provided
above, the obligations of the Company and the Trustee in
respect of such Debentures under Sections 2.05, 2.06, 2.07,
2.08, 2.10, 3.02, 3.04, 3.05, 4.02, 4.03 and 7.06 and this
Article Eleven shall survive.
The Company shall pay, and shall indemnify the Trustee
or any paying agent with which Governmental Obligations
shall have been deposited as provided in this Section
against, any tax, fee or other charge imposed on or assessed
against such Governmental Obligations or the principal or
interest received in respect of such Governmental
Obligations, including, but not limited to, any such tax
payable by any entity deemed, for tax purposes, to have been
created as a result of such deposit.
Anything in this Indenture to the contrary
notwithstanding, (a) if, at any time after a Debenture would
be deemed to have been paid for purposes of this Indenture,
and, if such is the case, the Company's indebtedness in
respect of such Debenture would be deemed to have been
satisfied and discharged, pursuant to this Section (without
regard to the provisions of this paragraph), the Trustee or
any paying agent, as the case may be, shall be required to
return the money or Governmental Obligations, or combination
of such money or Governmental Obligations, deposited with it
as provided below to the Company or its representative under
any applicable federal or state bankruptcy, insolvency or
other similar law, such Debenture shall thereupon be deemed
retroactively not to have been paid and any satisfaction and
discharge of the Company's indebtedness in respect of such
Debenture shall retroactively be deemed not to have been
effected, and such Debenture shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Debenture shall be
subject to the provisions of the last paragraph of Section
4.03.
063. Satisfaction and Discharge of Indenture.
This Indenture shall upon receipt of a Certificate
cease to be of further effect (except as expressly provided
below), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
(a) no Debentures remain Outstanding under this
Indenture; and
(b) the Company has paid or caused to be paid all
other sums payable under this Indenture by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 11.01, any Debenture, previously deemed
to have been paid for purposes of this Indenture, shall be
deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as provided above, and
to remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as provided above, the obligations of the Company
and the Trustee under Sections 2.05, 2.06, 2.07, 2.08, 2.10,
3.02, 3.04, 3.05, 4.02, 4.03 and 7.06 and this Article
Eleven shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer
and turn over to the Company, subject to the lien provided
by Section 7.06, any and all money, securities and other
property then held by the Trustee for the benefit of the
holders of the Debentures other than money and Governmental
Obligations held by the Trustee pursuant to Section 4.03.
064. Application of Trust Money.
Neither the Governmental Obligations nor the money
deposited pursuant to Section 11.01, nor the principal or
interest payments on any such Governmental Obligations,
shall be withdrawn or used for any purpose other than, and
shall be held in trust for, the payment of the principal of
and premium, if any, and interest, if any, on the Debentures
or portions of principal amount of such Debentures in
respect of which such deposit was made, all subject,
however, to the provisions of Section 4.03; provided,
however, that, so long as there shall not have occurred and
be continuing an Event of Default any cash received from
such principal or interest payments on such Governmental
Obligations, if not then needed for such purpose, shall, to
the extent practicable, be invested in Governmental
Obligations of the type described in clause (b) in the first
paragraph of Section 11.01 maturing at such times and in
such amounts as shall be sufficient to pay when due the
principal of and premium, if any, and interest, if any, due
and to become due on such Debentures or portions of such
Debentures on and prior to the stated maturity date of such
Debentures, and interest earned from such reinvestment shall
be paid over to the Company as received, free and clear of
any trust, lien or pledge under this Indenture except the
lien provided by Section 7.06; and provided, further, that,
so long as there shall not have occurred and be continuing
an Event of Default, any moneys held in accordance with this
Section on the stated maturity date of all such Debentures
in excess of the amount required to pay the principal of and
premium, if any, and interest, if any, then due on such
Debentures shall be paid over to the Company free and clear
of any trust, lien or pledge under this Indenture except the
lien provided by Section 7.06; and provided, further, that
if an Event of Default shall have occurred and be
continuing, moneys to be paid over to the Company pursuant
to this Section shall be held until such Event of Default
shall have been waived or cured.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders, Officers
and Directors
065. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any
Debenture, or for any claim based on such obligation,
covenant or agreement or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or
of any predecessor or successor corporation, either directly
or through the Company or any such predecessor or 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
this Indenture and the obligations issued under this
Indenture are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall
be incurred by, the incorporators, stockholders, officers or
directors as such, of the Company or of an predecessor or
successor corporation, or any of them, because of the
creation of the indebtedness authorized by this Indenture ,
or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the
Debentures or implied from them; and that any and all such
personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such
incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness authorized by
this Indenture, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in
any of the Debentures or implied from them, are expressly
waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the
issuance of such Debentures.
ARTICLE THIRTEEN
Miscellaneous Provisions
066. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of
the Company shall bind its successors and assigns, whether
so expressed or not.
067. 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 corresponding board, committee or officer of
any corporation that shall at the time be the lawful sole
successor of the Company.
068. The Company by instrument in writing executed
by authority of two-thirds of its Board of Directors and
delivered to the Trustee may surrender any of the powers
reserved to the Company and thereupon such power so
surrendered shall terminate both as to the Company and as to
any successor corporation.
069. Except, as otherwise expressly provided in
this Indenture 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 holders of Debentures to or
on the Company may be given or served by being deposited
first class postage prepaid in a post-office letterbox
addressed (until another address is filed in writing by the
Company with the Trustee), as follows: Illinois Power
Company, 500 South 27th Street, Decatur, Illinois 62525,
Attention: Secretary. Any notice, election, request or
demand by the Company or any Debentureholder 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.
070. This Indenture and each Debenture shall be
deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be construed in
accordance with the internal laws of said state.
071. (a) Upon any application or demand by the
Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied
with, except that in the case of any such application or
demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture
relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(a) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant in this Indenture
shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition;
(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 such person, he has
made such examination or investigation as is necessary to
enable him 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 such
person, such condition or covenant has been complied with.
072. Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and as set forth in an
Officers' Certificate, or established in one or more
indentures supplemental to the Indenture, in any case where
the date of maturity of interest or principal of any
Debenture or the date of redemption of any Debenture shall
not be a Business Day then payment of interest or principal
(and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on
the nominal date of maturity or redemption, and no interest
shall accrue for the period after such nominal date.
073. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act such imposed duties shall control.
074. 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.
075. In case any one or more of the provisions
contained in this Indenture or in the Debentures of any
series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of
this Indenture or of such Debentures, but this Indenture and
such Debentures shall be construed as if such invalid or
illegal or unenforceable provision had never been contained
in this Indenture or in such Debentures.
076. The Company will have the right at all times
to assign any of its rights or obligations under the
Indenture to a direct or indirect wholly owned subsidiary of
the Company; provided that, in the event of, any such
assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, this Indenture is
binding upon and inures to the benefit of the parties to it
and their respective successors and assigns. This Indenture
may not otherwise be assigned by the parties to it.
ARTICLE FOURTEEN
Subordination of Debentures
077. The Company covenants and agrees, and each
Holder of Debentures issued under this Indenture by such
Holder's acceptance of such Debentures likewise covenants
and agrees, that all Debentures shall be issued subject to
the provisions of this Article Fourteen; and each Holder of
a Debenture, whether upon original issue or upon transfer or
assignment of such Debenture, accepts and agrees to be bound
by such provisions.
The payment of the principal of, premium, if any, and
interest on all Debentures issued under this Indenture
shall, to the extent and in the manner set forth below, be
subordinated and subject in right of payment to the prior
payment in full of all Senior Indebtedness, whether
Outstanding at the date of this Indenture or incurred after
such date.
No provision of this Article Fourteen shall prevent the
occurrence of any default or Event of Default under this
Indenture.
078. In the event and during the continuation of
any default in the payment of principal, premium, interest
or any other payment due on any Senior Indebtedness
continuing beyond the period of grace, if any, specified in
the instrument evidencing such Senior Indebtedness, unless
and until such default shall have been cured or waived or
shall have ceased to exist, and in the event that the
maturity of any Senior Indebtedness has been accelerated
because of a default, then no payment shall be made by the
Company with respect to the principal (including redemption
and sinking fund payments) of, or premium, if any, or
interest on the Debentures.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any holder when
such payment is prohibited by the preceding paragraphs of
this Section 14.02, such payment shall be held in trust for
the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may
appear, but only to the extent that the holders of the
Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90
days of such payment of the amounts then due and owing on
the Senior Indebtedness and only the amounts specified in
such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
079. Upon any payment by the Company, or
distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation
or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full, or payment
of such Senior Indebtedness provided for in money in
accordance with its terms, before any payment is made on
account of the principal of (and premium, if any) or
interest on the Debentures; and upon any such dissolution or
liquidation or reorganization any payment by the Company, or
distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which
the Holders of the Debenture or the Trustee would be
entitled, except for the provisions of this Article
Fourteen, shall by paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other
person making such payment or distribution, or by the
Holders of the Debentures or by the Trustee under this
Indenture if received by them or it, directly to the holders
of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held
by such holders) or their representative or representatives,
or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior
Indebtedness in full, in money or money's worth, after
giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness, before any
payment or distribution is made to the holders of Debentures
or to the Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities,
prohibited by the foregoing, shall be received by the
Trustee or the holders of the Debentures before all Senior
Indebtedness is paid in full, or provision is made for such
payment in money in accordance with its terms, such payment
or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or
to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may
have been issued, as their respective interests may appear,
for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in money in accordance with its terms,
after giving effect to any concurrent payment or
distribution to or for the holders of such Senior
Indebtedness.
For purposes of this Article Fourteen, the words,
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least
to the extent provided in this Article Fourteen with respect
to the Debentures to the payment of all Senior Indebtedness
which may at the time be Outstanding; provided that (i) the
Senior Indebtedness is assumed by the new corporation, if
any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as
an entirety, to another corporation upon the terms and
conditions provided for in Article Ten hereof shall not be
deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 14.03 if
such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with
the conditions stated in Article Ten of this Indenture.
Nothing in Section 14.02 or in this Section 14.03 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
080. Subject to the payment in full of all Senior
Indebtedness, the rights of the holders of the Debentures
shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the
Senior Indebtedness until the principal of (and premium, if
any) and interest on the Debentures shall be paid in full;
and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of
any cash, property or securities to which the holders of the
Debentures or the Trustee would be entitled except for the
provisions of this Article Fourteen, and no payment over
pursuant to the provisions of this Article Fourteen, to or
for the benefit of the holders of Senior Indebtedness by
holders of the Debentures or the Trustee, shall, as between
the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Debentures, be deemed
to be a payment by the Company to or on account of the
Senior Indebtedness. It is understood that the provisions
of this Article Fourteen are and are intended solely for the
purposes of defining the relative rights of the holders of
the Debentures, on the one hand, and the holders of the
Senior Indebtedness on the other hand.
Nothing contained in this Article Fourteen or elsewhere
in this Indenture or in the Debentures is intended to or
shall impair, as between the Company, its creditors other
than the holders of Senior Indebtedness, and the holders of
the Debentures, the obligation of the Company, which is
absolute and unconditional, to pay to the holders of the
Debentures the principal of (and premium, if any) and
interest on the Debentures as and when the same shall become
due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the
holders of the Debentures and creditors of the Company other
than the holders of the Senior Indebtedness, nor shall
anything in this Indenture or in such Debentures prevent the
Trustee or the holder of any Debenture from exercising all
remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under
this Article Fourteen of the holders of Senior Indebtedness
in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the
Company referred to in this Article Fourteen, the Trustee,
subject to the provision of Section 7.01, and the holders of
the Debentures shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which
such dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other
person making such payment or distribution, delivered to the
Trustee or to the Holders of the Debentures, for the
purposes of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness
and other indebtedness of the Company, the amount of the
Senior Indebtedness and other indebtedness of the Company or
payable on the Senior Indebtedness and other indebtedness of
the Company, the amount or amounts paid or distributed on
the Senior Indebtedness and other indebtedness of the
Company and all other facts pertinent to the Senior
Indebtedness and other indebtedness of the Company or to
this Article Fourteen.
081. Each Holder of a Debenture by such Holder's
acceptance of such Debenture authorizes and directs the
Trustee in such Holder's behalf to take such action as may
be necessary or appropriate to effectuate the subordination
provided in this Article Fourteen and appoints the Trustee
such Holder's attorney-in-fact for any and all such
purposes.
082. The Company shall give prompt written notice
to a Responsible Officer of the Trustee of any fact known to
the Company which would prohibit the making of any payment
of monies to or by the Trustee in respect of the Debentures
pursuant to the provisions of this Article Fourteen.
Notwithstanding the provisions of this Article Fourteen or
any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of monies to
or by the Trustee in respect of the Debentures pursuant to
the provisions of this Article Fourteen, unless and until a
Responsible Officer of the Trustee shall have received
written notice of such acts at the Principal Office of the
Trustee from the Company or a holder or holders of Senior
Indebtedness or from any trustee on behalf of such holder or
holders; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Section 7.01,
shall be entitled in all respects to assume that no such
facts exist; provided that if the Trustee shall not have
received the notice provided for in this Section 14.06 at
least two Business Days prior to the date upon which by the
terms of this Indenture any money may become, payable for
any purpose (including, without limitation, the payment of
the principal of (or premium, if any) or interest on any
Debenture), then, anything contained in this Indenture to
the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the
same to the purposes for which they were received, and shall
not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01,
shall be entitled to rely on the delivery to it of a written
notice by a person representing himself or herself to be a
holder of Senior Indebtedness (or a trustee on behalf of
such holder) to establish that such notice has been given by
a holder of Senior Indebtedness or a trustee on behalf of
any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required
with respect to the right of any person as a holder of
Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Fourteen, the Trustee
may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such person, the extent to which
such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of
such person under this Article Fourteen, and if such
evidence is not furnished the Trustee may defer any payment
to such person pending judicial determination as to the
right of such person to receive such payment.
083. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article
Fourteen in respect of any Senior Indebtedness at any time
held by it, to the same extent as and other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in
this Article Fourteen, and no implied covenants or
obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and,
subject to the provisions of Section 7.01, the Trustee shall
not be liable to any holder of Senior Indebtedness if it
shall pay over or deliver to holders of Debentures, the
Company or any other person money or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of
this Article Fourteen or otherwise.
084. No right of any present or future holder of
any Senior Indebtedness to enforce subordination as provided
in this Indenture shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company with
the terms, provisions and covenants of this Indenture,
regardless of any knowledge of such act or failure to act
which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may,
at any time and from time to time, without the consent of or
notice to the Trustee or the holders of the Debentures,
without incurring responsibility to the holders of the
Debentures and without impairing or releasing the
subordination provided in this Article or the obligations
under this Indenture of the holders of the Debentures to the
holders of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or
any agreement under which Senior Indebtedness is
Outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any person liable in any
manner for the collection of Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the
Company and any other person.
The First National Bank of Chicago, as Trustee, accepts
the trusts in this Indenture declared and provided, upon the
terms and conditions set forth above.
IN WITNESS WHEREOF, the parties to this Indenture have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ILLINOIS POWER COMPANY
By /s/ Larry S. Brodsky
---------------------------
Vice President
Attest:
By /s/ Gary B. Pasek
----------------------------
Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By /s/ Steven M. Wagner
---------------------------
Title Vice President
-------------------
Attest:
By /s/ L. B. Jenkins
--------------------------------
Title: Trust Officer
------------------------
STATE OF ILLINOIS )
) ss.: October 2, 1994
COUNTY OF MACON ) --------- ---
On the 2nd day of October, in the year one
thousand nine hundred ninety-four, before me personally came
L. S. Brodsky and Gary B. Pasek to me known, who, being by me
duly sworn, did depose and say that they are the
Vice President and Assistant Secretary, respectively,
of ILLINOIS POWER COMPANY, one of the corporations described
in and which executed the above instrument; that they know
the corporate seal of said corporation; that the seal
affixed to the said instrument is such corporation seal;
that it was so affixed by authority of the Board of
Directors of said corporation, and that they signed their
respective names thereto by like authority.
/s/ Richard G. Boersma
----------------------------
NOTARY PUBLIC
My Commission Expires December 20, 1994
-------------------
STATE OF ILLINOIS )
) ss.: October 4, 1994
COUNTY OF COOK ) ---------- ---
On the 4th day of October, in the year one
thousand nine hundred ninety-four, before me personally came
Steven M. Wagner and L. B. Jenkins to me known, who, being by
me duly sworn, did depose and say that they are the
Vice President and Trust Officer, respectively,
of THE FIRST NATIONAL BANK OF CHICAGO, one of the
corporations described in and which executed the above
instrument; that they know the corporate seal of said
corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation and that they
signed their respective names to the instrument by like
authority.
/s/ Nilda Sierra
----------------------------
NOTARY PUBLIC
My Commission Expires November 12, 1997
ILLINOIS POWER COMPANY
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 1, 1994
TO
INDENTURE
DATED AS OF OCTOBER 1, 1994
9.45% SUBORDINATED DEBENTURES, SERIES A, DUE SEPTEMBER 30, 2043
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of the 1st
day of October, 1994 (this "First Supplemental Indenture"),
between ILLINOIS POWER COMPANY, a corporation duly organized and
existing under the laws of the State of Illinois (the "Company"),
and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association organized and existing under the laws of the United
States of America, as trustee (the "Trustee") under the Indenture
dated as of October 1, 1994 between the Company and the Trustee
(the "Indenture"). All terms used and not defined this First
Supplemental Indenture are used as defined in the Indenture.
WHEREAS, the Company executed and delivered the
Indenture to the Trustee to provide for the future issuance of
its subordinated debentures (the "Debentures"), said Debentures
to be issued from time to time in series as might be determined
by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered under
the Indenture as provided in the Indenture; and
WHEREAS, pursuant to the terms of the Indenture, the
Company desires to provide for the establishment of a new series
of its Debentures to be known as its 9.45% Subordinated
Debentures, Series A, due September 30, 2043 (the "Series A
Debentures"), the form and substance of such Series A Debentures
and the terms, provisions and conditions of such Series A
Debentures to be set forth as provided in the Indenture and this
First Supplemental Indenture; and
WHEREAS, Illinois Power Capital, L.P., a Delaware
limited partnership ("Illinois Power Capital"), has offered to
the public its 9.45% Cumulative Monthly Income Preferred
Securities, Series A (the "Series A Preferred Securities"),
representing limited partner interests in Illinois Power Capital
and proposes to invest the proceeds from such offering in the
Series A Debentures; and
WHEREAS, upon the occurrence of a Special Event (as
defined in the Amended and Restated Agreement of Limited
Partnership of Illinois Power Capital, dated September 29, 1994
(the "Limited Partnership Agreement")), the Company may dissolve
Illinois Power Capital and cause to be distributed to the holders
of the Series A Preferred Securities, on a pro rata basis, Series
A Debentures (a "Dissolution Event"); and
WHEREAS, the Company desires and has requested the
Trustee to join with it in the execution and delivery of this
First Supplemental Indenture, and all requirements necessary to
make this First Supplemental Indenture a valid instrument, in
accordance with its terms, and to make the Series A Debentures,
when executed by the Company and authenticated and delivered by
the Trustee, the valid obligations of the Company, have been
performed and fulfilled, and the execution and delivery of this
First Supplemental Indenture have been in all respects duly
authorized:
NOW THEREFORE, in consideration of the purchase and
acceptance of the Series A Debentures by their holders, and for
the purpose of setting forth, as provided in the Indenture, the
form and substance of the Series A Debentures and the terms,
provisions and conditions of them, the Company covenants and
agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series A Debentures
SECTION 1.01. There shall be and is authorized a
series of Debentures designated the "9.45% Subordinated
Debentures, Series A, Due September 30, 2043," limited in
aggregate principal amount to (i) $97,000,000 plus (ii) the
amount of capital contributions made by the Company from time to
time as general partner of Illinois Power Capital, which amount
shall be as set forth in any written order of the Company for the
authentication and delivery of Series A Debentures. The Series A
Debentures shall mature and the principal shall be due and
payable together with all accrued and unpaid interest on them,
including Additional Interest (as defined below) on September 30,
2043, and shall be issued in the form of registered Series A
Debentures without coupons.
SECTION 1.02. Except as provided in Section 1.03, the
Series A Debentures shall be issued in certificated form.
Principal of and interest on the Series A Debentures issued in
certificated form will be payable, the transfer of such Series A
Debentures will be registrable and such Series A Debentures will
be exchangeable for the Series A Debentures bearing identical
terms and provisions at the office or agency of the Company in
Decatur, Illinois; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the
Debenture Register. Notwithstanding the foregoing, so long as
the holder of the Series A Debentures is Illinois Power Capital,
the payment of the principal of and interest (including
Additional Interest, if any) on the Series A Debentures will be
made at such place and to such account as may be designated by
Illinois Power Capital.
SECTION 1.03. In connection with a Dissolution Event,
the Series A Debentures in certificated form may be presented to
the Trustee by Illinois Power Capital in exchange for a Global
Debenture in an aggregate principal amount equal to all
Outstanding Series A Debentures, to be registered in the name of
the Depository, or its nominee, and delivered by the Trustee to
the Depository for crediting to the accounts of its participants.
The Company upon any such presentation shall execute a Global
Debenture in such aggregate principal amount and deliver the same
to the Trustee for authentication and delivery as provided above
and in the Indenture. Payments on the Series A Debentures issued
as a Global Debenture will be made to the Depository. The
Depository for the Series A Debentures shall be The Depository
Trust Company, New York, New York.
SECTION 1.04. Each Series A Debenture will bear
interest at the rate of 9.45% per annum from the original date of
issuance until the principal of such Series A Debenture becomes
due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per
annum, payable monthly in arrears on the last day of each
calendar month of each year (each, an "Interest Payment Date,"
with the first such Interest Payment Date being October 31,
1994), to the person in whose name such Series A Debenture or any
predecessor Series A Debenture is registered, at the close of
business on the regular record date for such interest
installment, which shall be the close of business on the Business
Day next preceding that Interest Payment Date. If pursuant to
the provisions of Section 2.11(c) of the Indenture the Series A
Subordinated Debentures are no longer represented by a Global
Debenture, the Company may select a regular record date for such
interest installment which shall be any date not later than
fifteen days preceding an Interest Payment Date. Any such
interest (including Additional Interest) not punctually paid or
duly provided for shall immediately cease to be payable to the
registered holders on such regular record date, and may be paid
to the person in whose name the Series A Debenture (or one or
more Predecessor Debentures) is registered at the close of
business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice of which special
record date shall be given to the registered holders of the
Series A Debentures not less than 10 days prior to such special
record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Series A Debentures may be listed, and upon
such notice as may be required by such exchange, all as more
fully provided in the Indenture.
ARTICLE TWO
Mandatory Prepayment and Optional Redemption
of the Series A Debentures
SECTION 2.01. If Illinois Power Capital redeems the
Series A Preferred Securities in accordance with their terms, the
Series A Debentures will become due and payable in a principal
amount equal to the aggregate liquidation preference of the
Series A Preferred Securities so redeemed, together with all
accrued and unpaid interest on them, including Additional
Interest, if any (the "Mandatory Prepayment Price"). Any payment
pursuant to this provision shall be made prior to 12:00 noon, New
York time, on the date of such redemption or at such earlier time
as the Company and Illinois Power Capital shall agree.
SECTION 2.02. The Company shall have the right to
redeem the Series A Debentures, in whole or in part, from time to
time, on or after October 6, 1999, at a redemption price equal to
100% of the principal amount to be redeemed plus any accrued and
unpaid interest on them, including any Additional Interest, if
any, to the date of such redemption (the "Optional Redemption
Price"). Any redemption pursuant to this paragraph will be made
upon not less than 30 nor more than 60 days' notice, at the
Optional Redemption Price. If the Series A Debentures are only
partially redeemed pursuant to this Section, the Debentures will
be redeemed pro rata or by lot or by any other method utilized by
the Trustee; provided, that if at the time of redemption, the
Series A Debentures are registered as a Global Debenture, the
Depository shall determine by lot the principal amount of such
Series A Debentures held by each Series A Debentureholder to be
redeemed.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default
in the payment of interest on any series of Debentures issued
under the Indenture, the Company shall have the right, at any
time during the term of the Series A Debentures, from time to
time to extend the interest payment period of such Series A
Debentures for up to 60 consecutive months (the "Extended
Interest Payment Period"), at the end of which period the Company
shall pay all interest accrued and unpaid on such Series A
Debentures (together with interest on such accrued and unpaid
interest at the rate specified for the Series A Debentures to the
extent permitted by applicable law); provided that, during such
Extended Interest Payment Period the Company shall not declare or
pay any dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock or
make any guarantee payments with respect to the foregoing (other
than payments on the Guarantee); and provided further that any
such extended interest payment period may only be selected with
respect to the Series A Debentures if an extended interest
payment period of identical length is simultaneously selected for
all Debentures then Outstanding under the Indenture. Prior to
the termination of any such Extended Interest Payment Period, the
Company may further extend such period, provided that such period
together with all such further extensions of it shall not exceed
60 consecutive months. Upon the termination of any Extended
Interest Payment Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due, the Company
may select a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end of
such Period.
SECTION 3.02. (a) If Illinois Power Capital is the
sole holder of the Series A Debentures at the time the Company
selects an Extended Interest Payment Period, the Company shall
give both Illinois Power Capital and the Trustee written notice
of its selection of such Extended Interest Payment Period one
Business Day prior to the earlier of (i) the next succeeding date
on which dividends on the Series A Preferred Securities are
payable or (ii) the date Illinois Power Capital is required to
give notice of the record date or the date such dividends are
payable to the New York Stock Exchange or other applicable self-
regulatory organization or to holders of the Series A Preferred
Securities, but in any event not less than one Business Day prior
to such record date. The Company shall cause Illinois Power
Capital to give notice of the Company's selection of such
Extended Interest Payment Period to the holders of the Series A
Preferred Securities.
(b) If Illinois Power Capital is not the sole holder
of the Series A Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give the
holders of the Series A Debentures and the Trustee written notice
of its selection of such Extended Interest Payment Period 10
Business Days prior to the earlier of (i) the next succeeding
Interest Payment Date or (ii) the date the Company is required to
give notice of the record or payment date of such interest
payment to the New York Stock Exchange or other applicable self-
regulatory organization or to holders of the Series A Debentures,
but in any event not less than two Business Days prior to such
record date.
(c) The month in which any notice is given pursuant to
paragraphs (a) or (b) of this Section shall constitute one of the
60 mouths which comprise the maximum Extended Interest Payment
Period.
ARTICLE FOUR
Right of Set-Off
SECTION 4.01. Notwithstanding anything to the contrary
in the Indenture or in this First Supplemental Indenture, the
Company shall have the right to set-off any payment it is
otherwise required to make under the Indenture or hereunder with
and to the extent the Company has previously made, or is
concurrently on the date of such payment making, a payment under
the Guarantee, dated as of October 1, 1994, executed by the
Company and furnished to Illinois Power Capital for the benefit
of the holders of the Series A Preferred Securities.
ARTICLE FIVE
Covenant to List on Exchange
SECTION 5.01. If the Series A Debentures are to be
issued as a Global Debenture in connection with the distribution
of the Series A Debentures to the holders of the Series A
Preferred Securities upon a Dissolution Event, the Company will
use its best efforts to list such Debentures on the New York
Stock Exchange or on such other exchange as the Series A
Preferred Securities are then listed and traded on the same part
of any such exchange.
ARTICLE SIX
Form of Series A Debenture
SECTION 6.01. The Series A Debentures and the
Trustee's Certificate of Authentication to be endorsed on them
are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[If the Series A Debenture is to be a Global Indenture,
insert _ This Debenture is a Global Debenture within the meaning
of the Indenture referred to below and is registered in the name
of a Depository or a nominee of a Depository. Except as
otherwise provided in Section 2.11 of the Indenture, this
Debenture may be transferred, in whole but not in part, only to
another nominee of the Depository or to a successor Depository or
to a nominee of such successor Depository.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any Debenture 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 hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE OF THIS SERIES A DEBENTURE FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered
owner of this First Supplemental Indenture, Cede & Co., has an
interest in this Debenture.]
No. $_______________
CUSIP No.
ILLINOIS COMMERCE COMMISSION IDENTIFICATION NO. 5906
ILLINOIS POWER COMPANY
9.45% SUBORDINATED DEBENTURE, SERIES A, DUE SEPTEMBER 30, 1994
ILLINOIS POWER COMPANY, a corporation duly organized
and existing under the laws of the State of Illinois (the
"Company," which term includes any successor corporation under
the Indenture), for value received, hereby promises to pay to
_______________ or registered assigns, the principal sum of
__________________________ Dollars on September 30, 2043, and to
pay interest on said principal sum from October 6, 1994 or from
the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly
provided for, monthly in arrears on the last day of each calendar
month of each year, commencing October 31, 1994, at the rate of
9.45% per annum plus Additional Interest, if any, until the
principal of this Debenture shall have become due and payable,
and on any overdue principal and premium, if any, and (to the
extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the
same rate per annum. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on
which interest is payable on this Debenture is not a Business
Day, then payment of interest payable on such date will be made
on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so
payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid
to the person in whose name this Debenture (or one or more
Predecessor Debentures, as defined in the Indenture) is
registered at the close of business on the regular record date
for such interest installment[, which shall be the close of
business on the Business Day next preceding such Interest Payment
Date]. [If pursuant to the provisions of Section 2.11(c) of the
Indenture the Series A Debentures are no longer represented by a
Global Debenture, the regular record date shall be the close of
business on the ____ Business Day next preceding such Interest
Payment Date.] Any such interest installment not punctually paid
or duly provided for shall immediately cease to be payable to the
registered holders on such regular record date, and may be paid
to the person in whose name this Debenture (or one or more
Predecessor Debentures) is registered at the close of business on
a special record date to be fixed by the Trustee for the payment
of such defaulted interest, notice of which special record date
shall be given to the registered holders of this series of
Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Debentures may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the
Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or
agency of the Company maintained for that purpose in Decatur,
Illinois, in any coin or currency of the United States of America
which at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of
interest may be made at the option of the Company by check mailed
to the registered holder at such address as shall appear in the
Debenture Register. Notwithstanding the foregoing, so long as
the holder of this Debenture is Illinois Power Capital, L.P.
("Illinois Power Capital"), the payment of the principal of (and
premium, if any) and interest (including Additional Interest, if
any) on this Debenture will be made at such place and to such
account as may be designated by Illinois Power Capital.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinate and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect such Senior
Indebtedness. Each Holder of this Debenture, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes. Each Holder of this Debenture, by such
Holder's acceptance of this Debenture, waives all notice of the
acceptance of the subordination provisions contained in this
Debenture and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or incurred after the date
of this Indenture, and waives reliance by each such Holder upon
said provisions.
This Debenture shall not be entitled to any benefit
under the Indenture, be valid or become obligatory for any
purpose until the Certificate of Authentication on this Debenture
shall have been signed by or on behalf of the Trustee.
Unless the Certificate of Authentication on this
Debenture has been executed by the Trustee referred to on the
reverse side of this Debenture, this Debenture shall not be
entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The provisions of this Debenture are contained on the
reverse side of it and such continued provisions shall for all
purposes have the same effect as though fully set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this
Instrument to be executed.
Dated___________________
ILLINOIS POWER COMPANY
[SEAL]
By:
Vice President
Attest:
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of
Debentures described in the within-mentioned Indenture.
The First National Bank of Chicago
as Trustee or as Authentication Agent
By By
Authorized Signatory Authorized
Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Debentures of the Company (the "Debentures"), specified in the
Indenture, all issued or to be issued in one or more series under
and pursuant to an Indenture dated as of October 1, 1994, duly
executed and delivered between the Company and The First National
Bank of Chicago, a national banking association duly organized
and existing under the laws of the United States of America, as
Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of October 1, 1994 between the
Company and the Trustee (as so supplemented, the "Indenture"), to
which Indenture and all indentures supplemental to it reference
is made for a description of the rights, limitations of rights,
obligations, duties and immunities under it the Indenture of the
Trustee, the Company and the holders of the Debentures. By the
terms of the Indenture, the Debentures are issuable in series
which may vary as to amount, date of maturity, rate of interest
and in other respects as provided in the Indenture. This series
of Debentures is limited in aggregate principal amount as
specified in said First Supplemental Indenture.
If Illinois Power Capital redeems its 9.45% Cumulative
Monthly Income Preferred Securities, Series A (the "Series A
Preferred Securities") in accordance with their terms, the
Debentures will become due and payable in a principal amount
equal to the aggregate stated liquidation preference of the
Series A Preferred Securities so redeemed, together with any
interest accrued on them, including Additional Interest (the
"Mandatory Prepayment Price"). Any payment of such Mandatory
Prepayment Price shall be made prior to 12:00 noon, New York
time, on the date of such redemption or at such earlier time as
the Company and Illinois Power Capital shall agree. At such time
as there are no Series A Preferred Securities remaining
outstanding and subject to the terms of Article Three of the
Indenture, the Company shall have the right to redeem this
Debenture at the option of the Company, without premium or
penalty, in whole or in part at any time on or after October 6,
1999 (an "Optional Redemption"), at a redemption price equal to
100% of the principal amount of this Debenture plus any accrued
but unpaid interest, including any Additional Interest, if any,
to the date of such redemption (the "Optional Redemption Price").
Any redemption pursuant to this paragraph will be made upon not
less than 30 nor more than 60 days' notice, at the Optional
Redemption Price. If the Debentures are only partially redeemed
by the Company pursuant to an Optional Redemption, the Debentures
will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided that if at the time of
redemption, the Debentures are registered as a Global Debenture,
the Depository shall determine by lot the principal amount of
such Debentures held by each Debentureholder to be redeemed.
In the event of redemption of this Debenture in part
only, a new Debenture or Debentures of this series for the
unredeemed portion of this Debenture will be issued in the name
of the Holder of this Debenture upon the cancellation of this
Debenture.
In case an Event of Default, as defined in the
Indenture, shall have occurred and be continuing, the principal
of all of the Debentures may be declared, and upon such
declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Debenture upon compliance
by the Company with certain conditions set forth in the
Indenture.
The Indenture contains provisions permitting the
Company and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the
Debentures of each series affected at the time outstanding, as
defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights
of the Holders of the Debentures; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, or reduce the principal amount of them,
or reduce the rate or extend the time of payment of interest on
them, or reduce any premium payable upon the redemption of them,
without the consent of the holder of each Debenture so affected
or (ii) reduce the aforesaid percentage of Debentures, the
holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of each Debenture
then outstanding and affected by such reduction. The Indenture
also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Debentures of all series at the
time outstanding affected thereby, on behalf of the Holders of
the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture,
or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of
the principal of or premium, if any, or interest on any of the
Debentures of such series. Any such consent or waiver by the
registered Holder of this Debenture (unless revoked as provided
in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Debenture
and of any Debenture issued in exchange for or in place of this
Debenture (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference in this Debenture to the Indenture and no
provision of this Debenture or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate
and in the money prescribed in this Debenture.
The Company shall have the right at any time during the
term of the Debentures, from time to time to extend the interest
payment period of such Debentures to up to 60 consecutive months
(the "Extended Interest Payment Period"), at the end of which
period the Company shall pay all interest then accrued and unpaid
(together with interest on such accrued and unpaid interest at
the rate specified for the Debentures to the extent that payment
of such interest is enforceable under applicable law); provided
that, during such Extended Interest Payment Period the Company
shall not declare or pay any dividend on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its
capital stock or make any guarantee payments with respect to the
foregoing (other than payments on the Guarantee); and provided
further that any such extended interest payment period may only
be selected with respect to the Series A Debentures if an
extended interest payment period of identical length is
simultaneously selected for all Debentures then outstanding under
the Indenture. Prior to the termination of any such Extended
Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, provided that such Period
together with all such further extensions of it shall not exceed
60 consecutive months. At the termination of any such Extended
Interest Payment Period and upon the payment of all accrued and
unpaid interest and any additional amounts then due, the Company
may select a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain
limitations set forth in it, this Debenture is transferable by
the registered holder of this Debenture on the Debenture Register
of the Company, upon surrender of this Debenture for registration
of transfer at the office or agency of the Company in Decatur,
Illinois accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly
executed by the registered holder of this Debenture or such
holder's attorney duly authorized in writing, upon which one or
more new Debentures of authorized denominations and for the same
aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge
payable in relation to such transfer.
Prior to due presentment for registration of transfer
of this Debenture, the Company, the Trustee, any paying agent and
any Debenture Registrar may deem and treat the registered holder
of this Debenture as the absolute owner of this Debenture
(whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing on this
Debenture made by anyone other than the Debenture Registrar) for
the purpose of receiving payment of or on account of the
principal of this Debenture and premium, if any, and interest due
on this Debenture and for all other purposes, and neither the
Company nor the Trustee nor any paying agent nor any Debenture
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the
principal of or the interest on this Debenture, or for any claim
based on this Debenture, or otherwise in respect of this
Debenture, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present
or future, as such, of the Company or of any predecessor or
successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the
acceptance of this Debenture and as part of the consideration for
the issuance of this Debenture, expressly waived and released.
The Debentures of this series are issuable only in
registered form without coupons in denominations of $25 and any
integral multiple of $25. This Global Debenture is exchangeable
for Debentures in definitive form only under certain limited
circumstances set forth in the Indenture. Debentures of this
series so issued are issuable only in registered form without
coupons in denominations of $25 and any integral multiple of $25.
As provided in the Indenture and subject to certain limitations
set forth in this Debenture and the Indenture, Debentures of this
series so issued are exchangeable for a like aggregate principal
amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
ARTICLE SEVEN
Original Issue of Series A Debentures
SECTION 7.01. Series A Debentures in the aggregate
principal amount of $97,000,000 plus the amount of capital
contributions made by the Company from time to time as general
partner of Illinois Power Capital, may, upon execution of this
First Supplemental Indenture, or from time to time thereafter, be
executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall upon such execution and
delivery authenticate and deliver said Debentures to or upon the
written order of the Company, signed by its Chairman or any Vice
President and its Treasurer or an Assistant Treasurer, without
any further action by the Company.
ARTICLE EIGHT
Special Covenants of the Company
SECTION 8.01. So long as any Debentures issued in
connection with the application of the proceeds from the issuance
and sale of a series of Series A Preferred Securities remain
outstanding, the Company will (i) remain the sole general partner
of Illinois Power Capital and maintain 100%-ownership of the
general partner interests of Illinois Power Capital; provided
that any permitted successor of the Company under the Indenture
may succeed to its duties as general partner, (ii) contribute
capital to the extent required to maintain its capital at an
amount equal to at least 3% of the total capital contributions to
Illinois Power Capital, (iii) not voluntarily dissolve, wind-up
or terminate Illinois Power Capital, except in connection with a
distribution of Debentures and in connection with certain
mergers, consolidations or amalgamations permitted by the Limited
Partnership Agreement, (iv) timely perform all of its duties as
General Partner (including the duty to pay dividends on the
Preferred Securities of Illinois Power Capital) and (v) use its
reasonable efforts to cause Illinois Power Capital to remain a
limited partnership except in connection with a distribution of
Debentures and in connection with certain mergers, consolidations
or amalgamations permitted by the Limited Partnership Agreement,
and otherwise continue to be treated as a partnership for United
States federal income tax purposes except in connection with a
distribution of Debentures.
ARTICLE NINE
Sundry Provisions
SECTION 9.01. Except as otherwise expressly provided
in this First Supplemental Indenture or in the form of Series A
Debenture or otherwise clearly required by the context of this
First Supplemental Indenture or the form of Series A Debenture,
all terms used in this First Supplemental Indenture or in said
form of Series A Debenture that are defined in the Indenture
shall have the several meanings respectively assigned to them by
the Indenture.
SECTION 9.02. The Indenture, as supplemented by this
First Supplemental Indenture, is in all respects ratified and
confirmed, and this First Supplemental Indenture shall be deemed
part of the Indenture in the manner and to the extent provided in
this First Supplemental Indenture or in the Indenture.
SECTION 9.03. The recitals contained in this First
Supplemental Indenture are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the
correctness of them. The Trustee makes no representation as to
the validity or sufficiency of this First Supplemental Indenture.
SECTION 9.04. This First Supplemental 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.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, and their
respective corporate seals to be affixed unto this First
Supplemental Indenture and attested, on the date or dates
indicated in the acknowledgments and as of the day and year first
above written.
ILLINOIS POWER COMPANY
By: /s/Larry S. Brodsky
-----------------------------
Vice President
Attest:
/s/Gary B. Pasek
- -----------------------
Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By: /s/Steven M. Wagner
-----------------------------
Title: Vice President
---------------------
Attest:
/s/L. B. Jenkins
- ------------------------
Title: Trust Officer
------------------
STATE OF ILLINOIS )
) ss.: October 2, 1994
COUNTY OF MACON ) -------- ---
On the 2nd day of October, in the year one thousand
nine hundred ninety-four, before me personally came L.S. Brodsky
and Gary B. Pasek to me known, who, being by me duly sworn, did
depose and say that they are the Vice President and Assistant
Secretary, respectively, of ILLINOIS POWER COMPANY, one of the
corporations described in and which executed the above
instrument; that they know the corporate seal of said
corporation; that the seal affixed to the said instrument is such
corporation seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that they signed
their respective names thereto by like authority.
/s/Richard G. Boersma
----------------------------------
NOTARY PUBLIC
My Commission Expires December 20, 1994
STATE OF ILLINOIS )
) ss.: October 2, 1994
COUNTY OF COOK )
On the 4th day of October, in the year one thousand
nine hundred ninety-four, before me personally came Steven M.
Wagner and L. B. Jenkins to me known, who, being by me duly
sworn, did depose and say that they are the Vice President and
Trust Officer, respectively, of THE FIRST NATIONAL BANK OF
CHICAGO, one of the corporations described in and which executed
the above instrument; that they know the corporate seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation and that they signed their
respective names to the instrument by like authority.
/s/ Ann Longino
-----------------------------------
NOTARY PUBLIC
My Commission Expires May 17, 1998
<TABLE> <S> <C>
<ARTICLE> UT
<LEGEND>
This schedule contains summary financial information extracted from the balance
sheet, income statements and cash flow statement of Illinois Power Company and
is qualified in its entirety by reference to the balance sheet, income statement
and cash flow statement of Illinois Power Company.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-END> SEP-30-1994
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 4623
<OTHER-PROPERTY-AND-INVEST> 16
<TOTAL-CURRENT-ASSETS> 373
<TOTAL-DEFERRED-CHARGES> 421
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 5433
<COMMON> 1414
<CAPITAL-SURPLUS-PAID-IN> 0
<RETAINED-EARNINGS> 39
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1427
36
304
<LONG-TERM-DEBT-NET> 1869
<SHORT-TERM-NOTES> 97
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 107
<LONG-TERM-DEBT-CURRENT-PORT> 0
0
<CAPITAL-LEASE-OBLIGATIONS> 70
<LEASES-CURRENT> 34
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1489
<TOT-CAPITALIZATION-AND-LIAB> 5433
<GROSS-OPERATING-REVENUE> 1222
<INCOME-TAX-EXPENSE> 103
<OTHER-OPERATING-EXPENSES> 863
<TOTAL-OPERATING-EXPENSES> 966
<OPERATING-INCOME-LOSS> 256
<OTHER-INCOME-NET> (4)
<INCOME-BEFORE-INTEREST-EXPEN> 252
<TOTAL-INTEREST-EXPENSE> 102
<NET-INCOME> 150
18
<EARNINGS-AVAILABLE-FOR-COMM> 132
<COMMON-STOCK-DIVIDENDS> 45<F1>
<TOTAL-INTEREST-ON-BONDS> 103
<CASH-FLOW-OPERATIONS> 219
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1>Cash dividends paid.
</FN>
</TABLE>
