<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 13, 1996
REGISTRATION NO.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
ILLINOVA CORPORATION
(Exact name of registrant as specified in its charter)
ILLINOIS
(State or other jurisdiction of incorporation or organization)
ILLINOVA CORPORATION
500 SOUTH 27TH STREET
DECATUR, ILLINOIS 62525
(217) 424-6600
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
37-1319890
(I.R.S. Employer Identification No.)
LARRY D. HAAB
500 SOUTH 27TH STREET
DECATUR, ILLINOIS 62525
(217) 424-6600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
WITH A COPY TO:
ROBERT J. REGAN, ESQ.
SCHIFF HARDIN & WAITE
7200 SEARS TOWER
CHICAGO, ILLINOIS 60606
(312) 876-1000
------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE(1) FEE
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.............. $300,000,000 100% $300,000,000 $90,909.09
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
Information contained herein is subject to completion or amendment. A
Registration Statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be sold
nor may offers to buy be accepted prior to the time the Registration
Statement becomes effective. This Prospectus shall not constitute an offer
to sell or the solicitation of an offer to buy nor shall there be any sale
of these securities in any State in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such State.
PROSPECTUS
SUBJECT TO COMPLETION -- DATED DECEMBER 13, 1996
ILLINOVA CORPORATION
SENIOR DEBT SECURITIES
-------------------------
Illinova Corporation (the "Company") may offer and issue from time to time,
in one or more series, unsecured debentures, notes or other evidences of
indebtedness (the "Senior Debt Securities") with an initial offering price not
to exceed $300,000,000 (or, if applicable, the equivalent in foreign denominated
currency or units based on or relating to currencies, including European
Currency Units). The Company will offer the Senior Debt Securities to the public
on terms determined by market conditions. The Prospectus Supplement sets forth
the specific designation, aggregate principal amount, purchase price, maturity,
interest rate (or manner of calculation thereof), time of payment of interest
(if any), listing (if any) on a securities exchange and any other specific terms
of the Senior Debt Securities and the name of and compensation to each dealer,
underwriter, or agent (if any) involved in the sale of each series of the Senior
Debt Securities. The managing underwriters with respect to each series sold to
or through underwriters will be named in the Prospectus Supplement.
The Senior Debt Securities will be general unsecured obligations of the
Company and will rank pari passu with the Company's existing and future
unsecured and unsubordinated indebtedness. As of September 30, 1996, the amount
of the Company's total unsecured and unsubordinated indebtedness with which the
Senior Debt Securities would have been pari passu was $57 million. The Senior
Debt Securities will be effectively subordinated to all obligations of the
subsidiaries of the Company. Consequently, the rights of the Company to receive
assets of any subsidiary (and thus the ability of holders of Senior Debt
Securities to benefit indirectly from such assets) are subject to the prior
claims of creditors of that subsidiary. As of September 30, 1996, $1,990 million
of the Company's total debt was indebtedness of subsidiaries, and such
subsidiaries may incur additional indebtedness in the future.
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------------
The Senior Debt Securities may be offered through dealers, through
underwriters, or through agents designated from time to time, as set forth in
the Prospectus Supplement. Net proceeds to the Company will be the purchase
price in the case of a dealer, the public offering price less discount in the
case of an underwriter or the purchase price less commission in the case of an
agent, and in each case, less other expenses attributable to issuance and
distribution. See "Plan of Distribution" for possible indemnification
arrangements for dealers, underwriters and agents.
This Prospectus does not constitute an offer to sell or the solicitation of
an offer to buy any of the Senior Debt Securities other than the Senior Debt
Securities described in the accompanying Prospectus Supplement.
The date of this Prospectus is , 1996.
<PAGE> 3
Senior Debt Securities of a series may be issuable as individual securities
in registered form without coupons or in bearer form with or without coupons
attached. Senior Debt Securities may be sold for United States dollars, foreign
denominated currency or currency units. Principal of and any interest on Senior
Debt Securities may likewise be payable in United States dollars, foreign
denominated currency or currency units, in each case, as the Company
specifically designates.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS, IF ANY, MAY OVER-ALLOT
OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE
SENIOR DEBT SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
2
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, information statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, information
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices at Suite 1400, Northwestern Atrium Center, 500
West Madison Street, Chicago, Illinois 60661 and at the 13th Floor, Seven World
Trade Center, New York, New York 10048, or obtained from the Commission's Web
site on the World Wide Web at http://www.sec.gov. Copies of such material may be
obtained from the public reference section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. Such reports, information
statements and other information concerning the Company may also be inspected at
the offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005 and the Chicago Stock Exchange, 440 South LaSalle Street, Chicago,
Illinois 60605, on which exchanges the Common Stock of the Company is listed. In
addition, such reports, information statements and other information concerning
the Company may be inspected at the principal office of the Company, 500 South
27th Street, Decatur, Illinois 62525.
This Prospectus does not contain all the information set forth in the
Registration Statement on Form S-3 (together with all amendments and exhibits
thereto, the "Registration Statement"), which the Company has filed with the
Commission under the Securities Act of 1933, as amended (the "Securities Act").
Statements contained or incorporated by reference herein concerning the
provisions of documents are necessarily summaries of such documents, and each
statement is qualified in its entirety by reference to the Registration
Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission under the
Exchange Act are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(2) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996 and September 30, 1996; and
(3) the Company's Current Reports on Form 8-K, dated August 22, 1996
and September 13, 1996.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering of the Senior Debt Securities offered
hereby shall be deemed to be incorporated by reference in this Prospectus and to
be a part hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROSPECTUS HAS BEEN DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF SUCH
PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN
OR MAY BE INCORPORATED IN THIS PROSPECTUS BY REFERENCE, OTHER THAN EXHIBITS TO
SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE INTO THE
INFORMATION THAT THIS PROSPECTUS INCORPORATES. REQUESTS FOR SUCH COPIES SHOULD
BE DIRECTED TO THE SHAREHOLDER SERVICES DEPARTMENT, ILLINOVA CORPORATION AT 500
SOUTH 27TH STREET, DECATUR, ILLINOIS 62525, TELEPHONE NUMBER 1(800)800-8220 OR
AT ITS WEB SITE ON THE WORLD WIDE WEB AT HTTP://WWW.ILLINOVA.COM.
3
<PAGE> 5
THE COMPANY AND ITS SUBSIDIARIES
The Company is a holding company organized in Illinois in May 1994. It has
four principal operating subsidiaries: Illinois Power Company ("Illinois
Power"), organized in May 1923, is a combination electric and gas utility;
Illinova Generating Company, organized in October 1992, is an independent power
company which invests in energy supply projects and competes in the independent
power market world-wide; Illinova Power Marketing, Inc., organized in July 1994,
is in the business of brokering and marketing electric power and gas to various
customers; and Illinova Energy Partners, Inc., organized in May 1996, develops
and markets energy-related services to the unregulated energy market in the
United States. Illinois Power's financial position and results of operations are
currently the principal factors affecting the Company's consolidated financial
position and results of operation.
Illinois Power 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. Its service area is a widely diversified
industrial and agricultural area comprising approximately 15,000 square miles in
northern, central and southern Illinois. Electric service is provided at retail
to 310 incorporated municipalities, adjacent suburban and rural areas and
numerous unincorporated municipalities having an estimated aggregate population
of 1,265,000. Gas service is provided to 257 incorporated municipalities,
adjacent suburban areas and numerous unincorporated municipalities having an
estimated aggregate population of 920,000. The larger cities served include
Decatur, East St. Louis (gas only), Champaign, Danville, Belleville, Granite
City, Bloomington (electric only), Galesburg, Urbana and Normal (electric only).
The executive offices of the Company and Illinois Power are located at 500
South 27th Street, Decatur, Illinois 62525, and their telephone number is
1(217)424-6600.
USE OF PROCEEDS
Unless otherwise provided in the Prospectus Supplement accompanying this
Prospectus, the net proceeds from the sale of the Senior Debt Securities will be
added to the Company's general funds and used for repayment of debt or other
general corporate purposes, including loans to or investments in the Company's
operating subsidiaries. Until so utilized, it is expected that such net proceeds
will be placed in interest bearing time deposits or invested in short-term
marketable securities. The specific use of the net proceeds of any offering of
Senior Debt Securities will be determined at the time of such offering and will
be described in the accompanying Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges of
the Company for the periods indicated. This information is qualified in its
entirety by the information appearing elsewhere in this Prospectus and by the
information and financial statements incorporated in this Prospectus by
reference.
<TABLE>
<CAPTION>
12 MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30, 1996
- ------------------------------------------------------------ ------------------
1991 1992 1993 1994 1995 (UNAUDITED)
- ----- ----- -------- ----- -----
<S> <C> <C> <C> <C> <C>
1.70 1.87 0.66(a) 2.56 2.56 2.88
</TABLE>
- -------------------------
(a) The ratio of earnings to fixed charges of 0.66 for the year ended December
31, 1993 indicates that earnings were inadequate to cover fixed charges. The
dollar amount of the coverage deficiency for the year ended 1993 was
approximately $37 million. Excluding the loss on disallowed plant costs of
$200 million, net of income taxes, recorded in the third quarter of 1993,
the ratio of earnings to fixed charges would have been 2.11 for the year
ended 1993.
Earnings used in the calculation of the ratios of earnings to fixed charges
include the allowance for funds used during construction and the deferred
financing costs associated with Illinois Power's Clinton Power Station and are
before deduction of income taxes and fixed charges. Fixed charges include
interest on
4
<PAGE> 6
long-term debt, related amortization of debt discount, premium, expense, other
interest and that portion of rent expense which is estimated to be
representative of the interest component.
DESCRIPTION OF SENIOR DEBT SECURITIES
The Senior Debt Securities will be issued under an indenture (the
"Indenture"), between the Company, as issuer, and The First National Bank of
Chicago, as Trustee (the "Trustee"). The form of the Indenture is filed as an
exhibit to the Registration Statement of which this Prospectus is a part. The
terms of the Senior Debt Securities include those stated in the Indenture and
those made a part of the Indenture by reference to the Trust Indenture Act of
1939 as in effect on the date of the Indenture (the "Trust Indenture Act"). The
following summary of certain provisions of the Indenture and the Senior Debt
Securities does not purport to be complete and such summary is subject to the
detailed provisions of the Indenture to which reference is hereby made for a
full description of such provisions, including the definition of certain terms
used herein, and for other information regarding the Senior Debt Securities.
Wherever particular sections or defined terms of the Indenture are referred to,
such sections or defined terms are incorporated herein by reference as part of
the statement made, and the statement is qualified in its entirety by such
reference. The Senior Debt Securities offered by this Prospectus and the
accompanying Prospectus Supplement are referred to herein as the "Offered Debt
Securities."
The Senior Debt Securities may be issued from time to time in one or more
series. The following description of the Senior Debt Securities sets forth
certain general terms and provisions of the Senior Debt Securities of all
series. The particular terms of each series of Senior Debt Securities offered by
any Prospectus Supplement will be described in the Prospectus Supplement
relating to such series.
GENERAL
The Indenture provides that Senior Debt Securities may be issued from time
to time in one or more series. The Indenture does not limit the amount of Senior
Debt Securities that may be issued by the Company, nor does the Indenture
restrict transactions between the Company and its affiliates, or dividends and
other distributions by the Company to its stockholders. Other than as set forth
under "Certain Covenants of the Company -- Limitation on Liens," the Indenture
does not contain any covenant or provision which affords the Person in whose
name the Senior Debt Securities are registered or, if not registered, the bearer
of the Senior Debt Securities (each, a "Holder") protection in the event of a
change of control of the Company or a highly leveraged transaction involving the
Company.
The Senior Debt Securities will be general unsecured obligations of the
Company and will rank pari passu with the Company's existing and future
unsecured and unsubordinated indebtedness. Accordingly, the ability of the
Company to meet its obligations under the Indenture and the Senior Debt
Securities will be dependent on the earnings and cash flows of its Subsidiaries
and the ability of its Subsidiaries to pay dividends or to advance funds to the
Company. As of September 30, 1996, the amount of the Company's total unsecured
and unsubordinated indebtedness with which the Senior Debt Securities would have
been pari passu was $57 million.
The Company is a holding company, conducting substantially all of its
business through its Subsidiaries, and the Indenture does not restrict the
incurrence of debt by such Subsidiaries. The Senior Debt Securities will be
effectively subordinated to all obligations of such Subsidiaries. Consequently,
the rights of the Company to receive assets of any Subsidiary (and thus the
ability of holders of Senior Debt Securities to benefit indirectly from such
assets) are subject to the prior claims of creditors of that Subsidiary. As of
September 30, 1996, $1,990 million of the Company's total debt was indebtedness
of Subsidiaries, and such Subsidiaries may incur additional indebtedness in the
future.
The Company's short-term credit agreement, which terminates on June 11,
1997, limits the amount of debt that the Company may incur at any time to the
product of three multiplied by the lesser of (i) the amount of dividends paid to
the Company during the four fiscal quarters then most recently ended and (ii)
the aggregate net income of subsidiaries of the Company during such period. At
September 30, 1996, the
5
<PAGE> 7
Company could have issued approximately $247 million of debt (such as the Senior
Debt Securities) without violating this agreement.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Offered Debt Securities: (i) the specific
designation, aggregate principal amount, purchase price and denomination; (ii)
currency or units based on or relating to currencies in which such Offered Debt
Securities are denominated and/or in which principal, premium, if any, and/or
any interest will or may be payable; (iii) the date of maturity; (iv) interest
rate or rates (or method by which such rate will be determined), if any; (v) the
dates on which any such interest will be payable; (vi) the place or places where
the principal of and interest, if any, on the Offered Debt Securities will be
payable; (vii) whether the Offered Debt Securities will be issuable in
registered or bearer form or both and, if Offered Debt Securities in bearer form
are issuable, restrictions applicable to the exchange of one form for another
and to the offer, sale and delivery of Offered Debt Securities in bearer form;
(viii) any applicable United States federal income tax consequences, including
whether and under what circumstances the Company will pay additional amounts on
Offered Debt Securities held by any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof (each, a "Person") who
is not a United States Person (as defined in the Prospectus Supplement) in
respect of any tax, assessment or governmental charge withheld or deducted, and
if so, whether the Company will have the option to redeem such Offered Debt
Securities rather than pay such additional amounts; (ix) the obligation, if any,
of the Company to redeem, repurchase or repay such Offered Debt Securities
pursuant to any mandatory sinking fund or analogous provisions or at the option
of a Holder thereof and the price or prices at which, the period or periods
within which, and the terms and conditions upon which such Offered Debt
Securities may be redeemed, repurchased or repaid, in whole or in part, pursuant
to such obligation; and (x) any other specific terms of the Offered Debt
Securities, including any additional events of default or covenants provided for
with respect to such Offered Debt Securities, and any terms which may be
required by or advisable under United States laws or regulations.
Senior Debt Securities may be issued as original issue discount securities.
An "Original Issue Discount Security" is a Senior Debt Security that (i) is
issued at a price lower than the amount payable upon the stated maturity thereof
and (ii) provides that upon redemption or acceleration of the maturity thereof
an amount less than the amount payable upon the stated maturity thereof and
determined in accordance with the terms of such Senior Debt Security will become
due and payable. Special United States federal income tax considerations
applicable to Senior Debt Securities issued at an original issue discount,
including Original Issue Discount Securities, will be set forth in any
Prospectus Supplement relating thereto.
Senior Debt Securities may be presented for exchange, and registered Senior
Debt Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Senior Debt Securities and the
Prospectus Supplement. Such services will be provided without charge, other than
any tax or other governmental charge payable in connection therewith, but
subject to the limitations provided in the Indenture. Senior Debt Securities in
bearer form and the coupons, if any, appertaining thereto will be transferable
by delivery.
REGISTERED GLOBAL SECURITIES
The registered Senior Debt Securities of a series may be issued in the form
of one or more fully registered global securities (a "Registered Global
Security") that will be deposited with a depositary (the "Depositary"), or with
a nominee for a Depositary identified in the Prospectus Supplement relating to
such series. In such case, one or more Registered Global Securities will be
issued in a denomination or aggregate denominations equal to the portion of the
aggregate principal amount of outstanding registered Senior Debt Securities of
the series to be represented by such Registered Global Security or Senior Debt
Securities. Unless and until it is exchanged in whole or in part for Senior Debt
Securities in definitive registered form, a Registered Global Security may not
be transferred except as a whole by the Depositary for such Registered Global
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor.
6
<PAGE> 8
The specific terms of the depositary arrangement with respect to any
portion of a series of Senior Debt Securities to be represented by a Registered
Global Security will be described in the Prospectus Supplement relating to such
series. The Company anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Registered Global Security, the Depositary for such
Registered Global Security will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Senior Debt Securities
represented by such Registered Global Security to the accounts of Persons that
have accounts with such Depositary ("participants"). The accounts to be credited
shall be designated by any underwriters or agents participating in the
distribution of such Senior Debt Securities. Ownership of beneficial interests
in a Registered Global Security will be limited to participants or Persons that
may hold interests through participants. Ownership of beneficial interests in
such Registered Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the Depositary
for such Registered Global Security (with respect to interests of participants)
or by participants or Persons that hold through participants (with respect to
interests of Persons other than participants). So long as the Depositary for a
Registered Global Security, or its nominee, is the registered owner of such
Registered Global Security, such Depositary or such nominee, as the case may be,
will be considered the sole owner or Holder of the Senior Debt Securities
represented by such Registered Global Security for all purposes under the
Indenture. Except as set forth below, owners of beneficial interests in a
Registered Global Security will not be entitled to have the Senior Debt
Securities represented by such Registered Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such
Senior Debt Securities in definitive form and will not be considered the owners
or Holders thereof under the Indenture.
Principal, premium, if any, and interest payments on Senior Debt Securities
represented by a Registered Global Security registered in the name of a
Depositary or its nominee will be made to such Depositary or its nominee, as the
case may be, as the registered owner of such Registered Global Security. None of
the Company, the Trustee or any paying agent for such Senior Debt Securities
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in such
Registered Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Company expects that the Depositary for any Senior Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium or interest, will immediately credit participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Registered Global Security as shown on the
records of such Depositary. The Company also expects that payments by
participants to owners of beneficial interests in such Registered Global
Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with the securities
held for the accounts of customers registered in "street names" and will be the
responsibility of such participants.
If the Depositary for any Senior Debt Securities represented by a
Registered Global Security is at any time unwilling or unable to continue as
Depositary and a successor Depositary is not appointed by the Company within
ninety days, the Company will issue such Senior Debt Securities in definitive
form in exchange for such Registered Global Security. In addition, the Company
may at any time and in its sole discretion determine not to have any of the
Senior Debt Securities of a series represented by one or more Registered Global
Securities and, in such event, will issue Senior Debt Securities of such series
in definitive form in exchange for all of the Registered Global Security or
Senior Debt Securities representing such Senior Debt Securities.
CERTAIN COVENANTS OF THE COMPANY
Limitation on Liens. The Indenture provides that, except as otherwise
specified with respect to a particular series of Senior Debt Securities, so long
as any Senior Debt Securities of any series are Outstanding, the Company will
not mortgage, hypothecate or grant a security interest in, or permit any
mortgage, pledge, security interest or other lien upon any, capital stock of any
Subsidiary (hereinafter defined) now or
7
<PAGE> 9
hereinafter owned by the Company to secure any Indebtedness (hereinafter
defined), without making effective provisions whereby the Outstanding Senior
Debt Securities shall (so long as such other Indebtedness shall be so secured)
be equally and ratably secured with any and all such other Indebtedness and any
other indebtedness similarly entitled to be equally and ratably secured. This
restriction does not apply to, nor prevent the creation or existence of, (i) any
mortgage, pledge, security interest, lien or encumbrance upon any such capital
stock created at the time of the acquisition of such capital stock by the
Company or within one year after such time to secure all or a portion of the
purchase price for such capital stock or existing thereon at the time of the
acquisition thereof by the Company (whether or not the obligations secured
thereby are assumed by the Company); or (ii) any extension, renewal or refunding
of any mortgage, pledge, security interest, lien or encumbrance described in
clause (i) above on capital stock of any Subsidiary theretofore subject thereto
(or substantially the same capital stock) or any portion thereof.
For purposes of the restriction described in the preceding paragraph,
"Indebtedness" means (i) all indebtedness, whether or not represented by bonds,
debentures, notes or other securities, created or assumed by the Company for the
repayment of money borrowed; (ii) all indebtedness for money borrowed secured by
a lien upon property owned by the Company and upon which indebtedness for money
borrowed the Company customarily pays interest, although the Company has not
assumed or become liable for the payment of such indebtedness for money
borrowed; and (iii) all indebtedness for money borrowed of others guaranteed as
to payment of principal by the Company or in effect guaranteed by the Company
through a contingent agreement to purchase such indebtedness for money borrowed,
but excluding from this definition any other contingent obligation of the
Company in respect of indebtedness for money borrowed or other obligations
incurred by others. "Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more of the Company's other Subsidiaries, or by the Company
and one or more other Subsidiaries. For the purposes of this definition, "voting
stock" means stock that ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
Notwithstanding the foregoing, except as otherwise specified with respect
to a particular series of Senior Debt Securities, the Company may, without
securing the Senior Debt Securities, pledge, mortgage, hypothecate or grant a
security interest in, or permit any mortgage, pledge, security interest or other
lien (in addition to liens expressly permitted as described in the second
preceding paragraph) upon, capital stock of any Subsidiary now or hereafter
owned by the Company to secure any Indebtedness (which would otherwise be
subject to the foregoing restriction) in an aggregate amount which, together
with all other such Indebtedness, does not exceed 5% of Consolidated
Capitalization. For this purpose, "Consolidated Capitalization" means the sum
obtained by adding (i) Consolidated Shareholders' Equity, (ii) Consolidated
Indebtedness (exclusive of any thereof which is due and payable within one year
of the date such sum is determined) and, without duplication, (iii) any
preference or preferred stock of the Company or any Consolidated Subsidiary
which is subject to mandatory redemption or sinking fund provisions.
The term "Consolidated Shareholders' Equity" (as used above) means the
total Assets of the Company and its Consolidated Subsidiaries less all
liabilities of the Company and its Consolidated Subsidiaries. As used in the
foregoing definition, "liabilities" means all obligations which would, in
accordance with generally accepted accounting principles in the United States,
be classified on a balance sheet as liabilities, including without limitation
(i) indebtedness secured by property of the Company or any of its Consolidated
Subsidiaries whether or not the Company or such Consolidated Subsidiary is
liable for the payment thereof unless, in the case that the Company or such
Consolidated Subsidiary is not so liable, such property has not been included
among the Assets of the Company of such Consolidated Subsidiary on such balance
sheet, (ii) deferred liabilities and (iii) indebtedness of the Company or any of
its Consolidated Subsidiaries that is expressly subordinated in right and
priority of payment to other liabilities of the Company or such Consolidated
Subsidiary. As used in this definition, "liabilities" includes preference or
preferred stock of the Company or any Consolidated Subsidiary only to the extent
of any such preference or preferred stock that is subject to mandatory
redemption or sinking fund provisions.
The term "Consolidated Subsidiary" (as used above) means at any date any
Subsidiary the financial statements of which under generally accepted accounting
principles would be consolidated with those of the
8
<PAGE> 10
Company in its consolidated financial statements as of such date. The "Assets"
of any Person means the whole or any part of its business, property, assets,
cash and receivables. The term "Consolidated Indebtedness" means total
indebtedness as shown on the consolidated balance sheet of the Company and its
Consolidated Subsidiaries.
As of September 30, 1996, the Consolidated Capitalization of the Company
was approximately $3.58 billion.
Consolidation, Merger, Conveyance of Assets. The Indenture provides that
the Company will not consolidate with or merge into any other corporation or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires such assets shall expressly
assume the Company's obligations under the Indenture and the Senior Debt
Securities issued thereunder and immediately after giving effect to such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing.
EVENTS OF DEFAULT
Unless otherwise indicated in the Prospectus Supplement, an Event of
Default is defined under the Indenture with respect to Senior Debt Securities of
any series issued under the Indenture as: (i) default in payment of any
principal of the Senior Debt Securities of such series, either at maturity, upon
any redemption, by declaration or otherwise; (ii) default for 30 days in payment
of any interest on any Senior Debt Securities of such series; (iii) default for
90 days after written notice in the observance or performance of any covenant or
warranty in the Senior Debt Securities of such series or the Indenture (other
than a covenant a default in whose performance or whose breach is specifically
dealt with), (iv) certain events of bankruptcy, insolvency or reorganization of
the Company; (v) the acceleration of the maturity of any indebtedness for
borrowed money of the Company or Illinois Power or the failure to pay any
portion of such indebtedness when due and payable after the expiration of any
applicable grace period (in each case, other than the Senior Debt Securities of
such series or indebtedness of the Company or Illinois Power in respect of which
the recourse of the holder of such indebtedness, whether direct or indirect and
whether contingent or otherwise, is effectively limited to specified assets, and
with respect to which neither the Company nor Illinois Power provides any credit
support) having an aggregate principal amount outstanding in excess of
$25,000,000, if such acceleration is not rescinded or annulled, such failure to
pay is not cured, or such indebtedness shall not have been discharged, within 15
days after written notice thereof to the Company by either the Trustee or the
Holders of not less than 25 percent in principal amount of Senior Debt
Securities of such series; or (vi) any other Event of Default provided in a
supplemental indenture thereto with respect to Senior Debt Securities of that
series; provided, however, that, except as otherwise may be established for a
series of Senior Debt Securities, the occurrence of any of the events described
in the foregoing clauses (iii) or (vi) shall not constitute an Event of Default
if such occurrence is the result of changes in generally accepted accounting
principles as recognized by the American Institute of Certified Public
Accountants at the date as of which this Indenture is executed and a certificate
to such effect is delivered to the Trustee by the Company's independent public
accountants.
The Indenture provides that, (a) if an Event of Default described in
clauses (i), (ii) or (iii) above (if the Event of Default under clause (iii) is
with respect to less than all series of Senior Debt Securities then outstanding)
occurs, either the Trustee or the Holders of not less than 25 percent in
principal amount of Senior Debt Securities of each affected series (treated as
one class) issued under the Indenture and then outstanding may then declare the
entire principal (or, if the Senior Debt Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all Senior Debt Securities of each
such affected series and interest accrued thereon to be due and payable
immediately and (b) if an Event of Default due to a default described in clause
(iii) above which is applicable to all series of Senior Debt Securities then
outstanding or due to certain events of bankruptcy, insolvency and
reorganization of the Company, shall have occurred and be continuing, either the
Trustee or the Holders of not less than 25 percent in principal amount of all
Senior Debt Securities issued under the Indenture and then outstanding (treated
as one class) may declare the entire principal of all such Senior Debt
Securities and interest accrued thereon to be due and payable immediately, but
upon certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal of,
9
<PAGE> 11
premium, if any, or interest on such Senior Debt Securities) by the Holders of a
majority in aggregate principal amount of the Senior Debt Securities of all such
affected series then outstanding.
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during a default to act with the required standard of care,
to be indemnified by the Holders of Senior Debt Securities (treated as one
class) issued under the Indenture before proceeding to exercise any right or
power under the Indenture at the request of such Holders. Subject to such
provisions in the Indenture for the indemnification of the Trustee and certain
other limitations, the Holders of a majority in aggregate principal amount of
the outstanding Senior Debt Securities of each series affected (treated as one
class) issued under the Indenture may 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.
The Indenture provides that no Holder of Senior Debt Securities issued
under the Indenture may institute any action against the Company under the
Indenture (except actions for payment of overdue principal or interest) unless
such Holder previously shall have given to the Trustee written notice of default
and continuance thereof and unless the Holders of not less than 25 percent in
principal amount of the Senior Debt Securities of each affected series (treated
as one class) issued under the Indenture and then outstanding shall have
requested the Trustee to institute such action and shall have offered the
Trustee reasonable indemnity and the Trustee shall not have instituted such
action within 60 days of such request, and the Trustee shall not have received
direction inconsistent with such written request by the Holders of a majority in
principal amount of the Senior Debt Securities of each affected series (treated
as one class) issued under the Indenture and then outstanding.
The Indenture contains a covenant that the Company will file annually with
the Trustee a certificate of no default or a certificate specifying any default
that exists.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company can discharge or defease its obligations under the Indenture as
set forth below.
Under terms satisfactory to the Trustee, the Company may discharge certain
obligations to Holders of any series of Senior Debt Securities issued under the
Indenture which have not already been delivered to the Trustee for cancellation
and which have either become due and payable or are by their terms due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the Trustee cash or, in the case of Senior Debt
Securities payable only in United States dollars, United States Government
Obligations (as defined in the Indenture) as trust funds in an amount certified
to be sufficient to pay at maturity (or upon redemption) the principal of and
interest on such Senior Debt Securities.
The Company may also, upon satisfaction of the condition listed below,
discharge certain obligations to Holders of any series of Senior Debt Securities
issued under the Indenture at any time ("defeasance"). Under terms satisfactory
to the Trustee, the Company may be released with respect to any outstanding
series of Senior Debt Securities issued under the Indenture from the obligations
imposed by the covenants described above limiting liens, sale and lease-back
transactions and consolidations, mergers and conveyances of assets in, and omit
to comply with such covenants without creating an Event of Default ("covenant
defeasance"). Defeasance or covenant defeasance may be effected only if, among
other things: (i) the Company irrevocably deposits with the Trustee cash or, in
the case of Senior Debt Securities payable only in United States dollars, United
States Government Obligations, as trust funds in an amount certified to be
sufficient to pay at maturity (or upon redemption) the principal of and interest
on all outstanding Senior Debt Securities of such series issued under the
Indenture; and (ii) the Company delivers to the Trustee an opinion of counsel to
the effect that the Holders of such series of Senior Debt Securities will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such defeasance or covenant defeasance and will be subject to United
States federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if defeasance or covenant defeasance had
not occurred (in the case of a defeasance, such opinion must be based on a
ruling of the Internal Revenue Service or a change in United States federal
income tax law occurring after the date of the Indenture, since such a result
would not occur under current tax law).
10
<PAGE> 12
Under current United States federal income tax law, defeasance and
discharge likely would be treated as a taxable exchange of Senior Debt
Securities to be defeased for an interest in the defeasance trust. As a
consequence, in respect of a defeasance described in the second preceding
paragraph, a Holder would recognize gain or loss equal to the difference between
the Holder's cost or other tax basis for such Senior Debt Securities and the
value of the Holder's interest in the defeasance trust, and thereafter would be
required to include in income a share of the income, gain or loss of the
defeasance trust. Under current United States federal income tax law, covenant
defeasance would ordinarily not be treated as a taxable exchange of such Senior
Debt Securities.
MODIFICATION, WAIVER AND MEETINGS
The Indenture provides that the Company and the Trustee may enter into
supplemental indentures (which conform to the provisions of the Trust Indenture
Act) without the consent of the Holders to, among other things: (i) secure any
Senior Debt Securities; (ii) evidence the assumption by a successor Person of
the obligations of the Company; (iii) add further covenants for the protection
of the Holders; (iv) cure any ambiguity correct any inconsistency or make any
other provisions in the Indenture, so long as such action will not materially
adversely affect the interests of the Holders; (v) establish the form or terms
of Senior Debt Securities of any series; and (vi) evidence the acceptance of
appointment by a successor trustee.
The Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than the majority in
principal amount of Senior Debt Securities of each series issued under the
Indenture then outstanding and affected (voting as one class) to add any
provisions to, or change in any manner or eliminate any of the provisions of,
the Indenture or modify in any manner the rights of the Holders of the Senior
Debt Securities of each series so affected; provided that such changes conform
to provisions of the Trust Indenture Act and provided that the Company and the
Trustee may not, without the consent of all Holders of outstanding Senior Debt
Securities affected thereby, (i) extend the final maturity of the principal of
any Senior Debt Securities, or reduce the principal amount thereof or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or change the currency in which the principal
thereof (including any amount in respect of original issue discount) or interest
thereon is payable, or reduce the amount of any Original Issue Discount Security
payable upon acceleration or provable in bankruptcy or alter certain provisions
of the Indenture relating to Senior Debt Securities not denominated in United
States dollars or for which conversion to another currency is required to
satisfy the judgment of any court, or impair the right to institute suit for the
enforcement of any payment on any Senior Debt Securities when due or (ii) reduce
the aforesaid percentage in principal amount of Senior Debt Securities of any
series issued under the Indenture, the consent of the Holders of which is
required for any such modification.
The Holders of a majority in aggregate principal amount of the Senior Debt
Securities of each series may, on behalf of the Holders of all Senior Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture.
The Holders of a majority in aggregate principal amount of the Senior Debt
Securities of each series may, on behalf of all Holders of Senior Debt
Securities of that series, waive any past default under the Indenture with
respect to any Securities of that series, except a default (i) in the payment of
principal of, or any premium or interest on, any Senior Debt Security of such
series or (ii) in respect of a covenant or provision of the Indenture that
cannot be modified or amended without the consent of the Holder of each Senior
Debt Security of such series affected.
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Senior Debt Securities have given any request,
demand, authorization, direction, notice, consent or waiver thereunder or are
present at a meeting of the Holders of Senior Debt Securities for quorum
purposes, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding shall be the amount of the principal that
would be due and payable as of the date of such determination upon acceleration
of the Maturity thereof, and (ii) the principal amount of a Senior Debt Security
denominated in a foreign currency or currencies shall be the United States
dollar equivalent, determined on the date of original issuance of such Senior
Debt Security, of the principal amount of such Senior Debt Security or, in the
case of an Original Issue Discount Security, the United States dollar
equivalent, determined on the date of original issuance of such Senior Debt
Security, of the amount determined as provided in clause (i) above.
11
<PAGE> 13
The Indenture contains provisions for convening meetings of the Holders of
Senior Debt Securities of a series. A meeting may be called at any time by the
Trustee and also, upon request, by the Company or the Holders of at least 10% in
principal amount of the Outstanding Senior Debt Securities of such series, in
any such case upon notice given in accordance with "Notices" below. Except for
any consent that must be given by the Holder of each Outstanding Senior Debt
Security affected thereby, as described above, any resolution presented at a
meeting or adjourned meeting at which a quorum is present may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Senior Debt Securities of that series; provided, however, that
except for any consent that must be given by the Holder of each Outstanding
Senior Debt Security affected thereby, as described above, any resolution with
respect to any consent or waiver that may be given by the Holders of a specified
percentage, which is greater than a majority in principal amount of the
Outstanding Senior Debt Securities of a series, may be adopted at a meeting or
an adjourned meeting duly convened and at which a quorum is present only by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Senior Debt Securities of that series; and provided, further,
that, except for any consent that must be given by the Holder of each
Outstanding Senior Debt Security affected thereby, as described above, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Senior Debt Securities of a series that may be adopted
at a meeting or adjourned meeting duly reconvened and at which a quorum is
present by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Senior Debt Securities of that series. Any
resolution passed or decision taken at any meeting of Holders of Senior Debt
Securities of any series duly held in accordance with the Indenture will be
binding on all Holders of Senior Debt Securities of that series and the related
coupons. The quorum at any meeting called to adopt a resolution, and at any
reconvened meeting, will be Persons holding or representing a majority in
principal amount of the Outstanding Senior Debt Securities of a series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver that may be given by the Holders of a specified
percentage, which is greater than a majority in aggregate principal amount of
the Outstanding Senior Debt Securities of a series, the Persons holding or
representing such specified percentage in principal amount of the Outstanding
Senior Debt Securities of such series will constitute a quorum.
CONCERNING THE TRUSTEE
The Trustee is one of a number of banks with which the Company and its
affiliates maintain ordinary banking relationships and with which the Company
and its affiliates maintain credit facilities. An affiliate of the Trustee has
also underwritten securities offerings for affiliates of the Company and may
underwrite future offerings for the Company and its affiliates.
The Indenture and the provisions of the Trust Indenture Act incorporated by
reference therein contain certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. The Trustee will be
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest, it must eliminate such conflict or resign.
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
Except as may otherwise be provided in the Prospectus Supplement applicable
thereto, in compliance with United States federal income tax laws and
regulations, Bearer Debt Securities (including Bearer Debt Securities in global
form) will not be offered, sold, resold or delivered, directly or indirectly, in
the United States or its possessions or to United States persons (as defined
below), except as permitted by United States Treasury Regulations Section
1.163-5(c)(2)(i)(D). Any underwriters, agents and dealers participating in the
offerings of Bearer Debt Securities, directly or indirectly, must agree that (i)
they will not, in connection with the original issuance of any Bearer Debt
Securities or during the restricted period, as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7) (the "restricted period"), offer,
sell, resell or deliver, directly or indirectly, any Bearer Debt Securities in
the United States or its possessions or to United States persons (other than as
permitted by the applicable Treasury Regulations described above). In addition,
any
12
<PAGE> 14
such underwriters, agents and dealers must have procedures reasonably designed
to ensure that its employees or agents who are directly engaged in selling
Bearer Debt Securities are aware of the above restrictions on the offering,
sale, resale or delivery of Bearer Debt Securities. Moreover, Bearer Debt
Securities (other than temporary global Senior Debt Securities and Bearer Debt
Securities that satisfy the requirements of United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(iii)) and any coupons appertaining thereto will
not be delivered in definitive form, nor will any interest be paid on any Bearer
Debt Securities, unless the Company has received a signed certificate in writing
(or an electronic certificate described in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(ii)) stating that on such date such Bearer Debt
Security (i) is owned by a person that is not a United States person, (ii) is
owned by a United States person that (a) is a foreign branch of a United States
financial institution (as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v)) (a "financial institution") purchasing for its own account or
for resale, or (b) is acquiring such Bearer Debt Security through a foreign
branch of a United States financial institution and who holds the Bearer Debt
Security through such financial institution through such date (and in either
case (a) or (b), each such United States financial institution agrees, on its
own behalf or through its agent, that the Company may be advised that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal Revenue Code, and the regulations thereunder) or (iii) is owned
by a United States or foreign financial institution for the purposes of resale
during the restricted period and such financial institution certifies that it
has not acquired the Bearer Debt Security for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
Bearer Debt Securities (other than temporary global Senior Debt Securities)
and any coupons appertaining thereto will bear a legend substantially to the
following effect: "Any United States person who holds this obligation will be
subject to limitations under the United States federal income tax laws,
including the limitations provided in Sections 165(j) and 1287(a) of the United
States Internal Revenue Code." The sections referred to in such legend provide
that, with certain exceptions, a United States person will not be permitted to
deduct any loss, and will not be eligible for capital gain treatment with
respect to any gain, realized on the sale, exchange or redemption of such Bearer
Security or coupon.
As used herein, "United States person" means any person who is, for United
States federal income tax purposes, a citizen, national or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States or any political subdivision thereof,
or an estate or trust the income of which is subject to United States federal
income taxation regardless of its source.
PLAN OF DISTRIBUTION
GENERAL
The Company may sell the Offered Debt Securities in the following ways: (i)
through agents, (ii) through underwriters, (iii) through dealers and (iv)
directly to purchasers.
Offers to purchase the Offered Debt Securities may be solicited by agents
designated by the Company from time to time. Any such agent, who may be deemed
to be an underwriter as that term is defined in the Securities Act, involved in
the offer or sale of the Offered Debt Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
If any underwriters are utilized in the sale, the Company will enter into
an underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set forth
in the Prospectus Supplement, which will be used by the underwriters to make
resales to the public of the Offered Debt Securities in respect of which this
Prospectus is delivered.
If a dealer is utilized in the sale of the Offered Debt Securities in
respect of which this Prospectus is delivered, the Company will sell such
Offered Debt Securities to the dealer, as principal. The dealer may then resell
such Offered Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale.
13
<PAGE> 15
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such agents, dealers or underwriters may be
required to make in respect thereof. Agents, dealers and underwriters may be
customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
The Offered Debt Securities may also be offered and sold, if so indicated
in the Prospectus Supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by one or more firms ("remarketing firms"), acting as principals
for their own accounts or as agents for the Company. Any remarketing firm will
be identified and the terms of its agreement, if any, with the Company and its
compensation will be described in the Prospectus Supplement. Remarketing firms
may be deemed to be underwriters in connection with the Offered Debt Securities
remarketed thereby. Remarketing firms may be entitled under agreements which may
be entered into with the Company to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act, and
may be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and dealers or underwriters to solicit offers by certain purchasers to
purchase the Offered Debt Securities from the Company at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject to only those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such offers.
The Senior Debt Securities, when first issued, will have no established
trading market. Any underwriters or agents to or through whom Senior Debt
Securities are sold by the Company for public offering and sale may make a
market in such Senior Debt Securities, but such underwriters or agents will not
be obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market for
any Senior Debt Securities.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Senior Debt Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
contracts will be subject to the approval of the Company. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Senior Debt Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such agents will not have any responsibility in
respect of the validity or performance of such contracts.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Company's Annual Report on Form 10-K for the year ended December 31, 1995
have been so incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
LEGAL MATTERS
Certain legal matters in connection with the Senior Debt Securities will be
passed upon for the Company by Schiff Hardin & Waite, Chicago, Illinois. Certain
legal matters in connection with the Senior Debt Securities may be passed upon
for any underwriters, dealers or agents by Winthrop, Stimson, Putnam & Roberts,
New York, New York.
14
<PAGE> 16
------------------------------------------------------
------------------------------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION
OF AN OFFER TO BUY, ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE OF THIS PROSPECTUS
OR THAT THE INFORMATION SET FORTH HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF OR THE DATE OF FILING OF ANY DOCUMENTS INCORPORATED BY REFERENCE
HEREIN.
------------------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information................... 3
Incorporation of Certain Documents by
Reference............................. 3
The Company and its Subsidiaries........ 4
Use of Proceeds......................... 4
Ratio of Earnings to Fixed Charges...... 4
Description of Senior Debt Securities... 5
Plan of Distribution.................... 13
Experts................................. 14
Legal Matters........................... 14
</TABLE>
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
ILLINOVA
CORPORATION
SENIOR DEBT
SECURITIES
------------------------
PROSPECTUS
------------------------
, 1996
------------------------------------------------------
------------------------------------------------------
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses in connection with the
distribution of the Senior Debt Securities being registered. All amounts shown
below are estimates, except the registration fee:
<TABLE>
<S> <C>
Registration fee of Securities and Exchange Commission............. $ 90,909
Accountants' fees and expenses..................................... 25,000
Legal fees and expenses............................................ 80,000
Blue sky fees and expenses (including legal fees).................. 15,000
Rating agency fees................................................. 70,000
Trustees fees and expenses (including legal fees).................. 10,000
Printing and engraving fees........................................ 50,000
Miscellaneous expenses............................................. 4,091
--------
Total......................................................... $345,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 8.75 of the Illinois Business Corporation Act of 1983, the
Company is empowered, subject to the procedures and limitations stated therein,
to indemnify any person against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with any threatened, pending or completed action, suit or
proceeding to which person is made a party or threatened to be made a party by
reason of such person being or having been a director, officer, employee or
agent of the Company, or serving or having served at the request of the Company
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise. Section 8.75 further provides that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors, or otherwise, and that such
indemnification shall continue as to a director, officer, employee or agent of
the Company who has ceased to serve in such capacity, and shall inure to the
benefit of the heirs, executors and administrators of such person.
The Company's By-Laws provide, in substance, that the Company shall, to the
fullest extent permitted under the Illinois Business Corporation Act of 1983,
indemnify any person against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, to which
such person is made a party or threatened to be made a party by reason of such
person being or having been a director, officer, employee, trustee or fiduciary
of the Company or of a Company-sponsored or Company-administered trust or
benefit plan, or serving or having served at the request of the Company in one
or more of the foregoing capacities with another corporation, partnership, joint
venture, trust, benefit plan or other enterprise. The indemnification is not
exclusive of other rights and shall continue as to a person who has ceased to be
a director, officer, employee or agent and shall inure to the benefit of his
heirs, executors and administrators.
ITEM 16. EXHIBITS
The Exhibits filed herewith are set forth on the Index to Exhibits filed as
a part of this Registration Statement.
II-1
<PAGE> 18
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs 1(i) and 1(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions discussed in Item 15, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-2
<PAGE> 19
(d) The undersigned registrant hereby undertakes that:
1. For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
2. For purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Decatur, and State of Illinois, on this 12th day of
December, 1996.
ILLINOVA CORPORATION
(Registrant)
By: /s/ LARRY F. ALTENBAUMER
-----------------------------------
Larry F. Altenbaumer
Chief Financial Officer,
Treasurer and Controller
II-4
<PAGE> 21
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Illinova Corporation and each of the
undersigned officers and directors of Illinova Corporation hereby constitute and
appoint each of Larry D. Haab, Larry F. Altenbaumer and Leah Manning Stetzner
the true and lawful attorney-in-fact and agent of the undersigned, with full
power of substitution and resubstitution for and in the name, place and stead of
the undersigned, in any and all capacities, to sign all or any amendments
(including post-effective amendments) of and supplements to this Registration
Statement on Form S-3 and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto each such attorney-in-fact and agent full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, to all intents and purposes and as fully as said
corporation itself and each said officer or director might or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact and
agent, or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below on behalf of Illinova Corporation
by the following persons in the capacities as officers or directors, as
indicated below, of Illinova Corporation and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ----------------------------------- ------------------
<C> <S> <C>
/s/ LARRY D. HAAB Chairman, President, Chief
- ------------------------------------- Executive
Larry D. Haab Officer and Director
(Principal Executive Officer)
/s/ LARRY F. ALTENBAUMER Chief Financial Officer,
- ------------------------------------- Treasurer and Controller
Larry F. Altenbaumer
(Principal Financial and Accounting
Officer)
December 12, 1996
/s/ RICHARD R. BERRY Director
- -------------------------------------
Richard R. Berry
/s/ C. STEVEN MCMILLAN Director
- -------------------------------------
C. Steven McMillan
/s/ DONALD S. PERKINS Director
- -------------------------------------
Donald S. Perkins
/s/ ROBERT M. POWERS Director
- -------------------------------------
Robert M. Powers
</TABLE>
II-5
<PAGE> 22
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ----------------------------------- ------------------
<C> <S> <C>
/s/ WALTER D. SCOTT Director
- -------------------------------------
Walter D. Scott
/s/ RONALD L. THOMPSON Director
- -------------------------------------
Ronald L. Thompson
/s/ RONALD L. THOMPSON Director
- -------------------------------------
Ronald L. Thompson
December 12, 1996
/s/ WALTER M. VANNOY Director
- -------------------------------------
Walter M. Vannoy
/s/ MARILOU VON FERSTEL Director
- -------------------------------------
Marilou von Ferstel
/s/ JOHN D. ZEGLIS Director
- -------------------------------------
John D. Zeglis
</TABLE>
II-6
<PAGE> 23
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
INDEX EXHIBIT PAGE NO.
- ------- --------------------------------------------------------------------------- --------
<S> <C> <C>
1.1 Form of Underwriting Agreement.
3.1* Articles of Incorporation of the Company, as amended. Filed as Exhibit 3(a)
to Quarterly Report on Form 10-Q under Securities Exchange Act of 1934 for
the quarter ended September 30, 1994 (File No. 1-3004).
3.2* Statement of Correction to the Articles of Incorporation of the Company, as
amended. Filed as Exhibit 3(b) to the Quarterly Report on Form 10-Q under
the Securities Exchange Act of 1934 for the quarter ended September 30,
1994 (File No. 1-3004).
3.3* By-Laws of the Company. Filed as Exhibit 3(b)(2) to the Annual Report on
Form 10-K under the Securities Exchange Act of 1934 for the year ended
December 31, 1994 (File No. 1-3004).
4 Form of Indenture, between Illinova Corporation and The First National Bank
of Chicago, as Trustee.
5 Opinion of Schiff Hardin & Waite.
12 Statement of Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Schiff Hardin & Waite (contained in its opinion filed as Exhibit
5 to this Registration Statement).
24 Powers of Attorney (as set forth in the signature pages hereto).
25 Statement of Eligibility and Qualification of Trustee of Form T-1.
</TABLE>
- -------------------------
* Incorporated by reference herein.
<PAGE> 1
EX 1.1
ILLINOVA CORPORATION
(an Illinois corporation)
Senior Debt Securities
UNDERWRITING AGREEMENT
January [__], 1997
Ladies and Gentlemen:
Illinova Corporation, an Illinois corporation (the "Company"),
proposes to issue and sell up to $300,000,000 aggregate initial public offering
price of its senior debt securities (the "Debt Securities"), from time to time,
in or pursuant to one or more offerings on terms to be determined at the time
of sale.
The Debt Securities will be issued in one or more series as
general unsecured obligations of the Company under an indenture, dated as of
[_______] [__], 1997 (the "Indenture"), between the Company and First National
Bank of Chicago, as trustee (the "Trustee"). Each series of Debt Securities
may vary, as applicable, as to title, aggregate principal amount, rank,
interest rate or formula and timing of payments thereof, stated maturity date,
redemption and/or repayment provisions, sinking fund requirements and any other
variable terms established by or pursuant to the Indenture.
Whenever the Company determines to make an offering of Debt
Securities through __________________, or through an underwriting syndicate
managed by __________________, the Company will enter into an agreement (each,
a "Terms Agreement") providing for the sale of such Debt Securities to, and the
purchase and offering thereof by, __________________ and such
<PAGE> 2
other underwriters, if any, selected by __________________ (the "Underwriters",
which term shall include __________________, whether acting as sole Underwriter
or as a member of an underwriting syndicate, as well as any Underwriter
substituted pursuant to Section 10 hereof). The Terms Agreement relating to
the offering of Debt Securities shall specify the number or aggregate principal
amount, as the case may be, of Debt Securities to be initially issued (the
"Initial Underwritten Debt Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in Section
10 hereof) and the name of any Underwriter other than __________________ acting
as co-manager in connection with such offering, the number or aggregate
principal amount, as the case may be, of Initial Underwritten Debt Securities
which each such Underwriter severally agrees to purchase, whether such offering
is on a fixed or variable price basis and, if on a fixed price basis, the
initial offering price, the price at which the Initial Underwritten Debt
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Initial Underwritten Debt Securities and
any other material variable terms of the Initial Underwritten Debt Securities.
In addition, if applicable, such Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase
additional Debt Securities to cover over-allotments, if any, and the number or
aggregate principal amount, as the case may be, of Debt Securities subject to
such option (the "Option Underwritten Debt Securities"). As used herein, the
term "Underwritten Debt Securities" shall include the Initial Underwritten Debt
Securities and all or any portion of any Option Underwritten Debt Securities.
The Terms Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between the Company and __________________, acting for itself
and, if applicable, as representative of any other Underwriters. Each offering
of Underwritten Debt Securities through __________________ as sole Underwriter
or through an underwriting syndicate managed by __________________ will be
governed by this Underwriting Agreement, as supplemented by the applicable
Terms Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-[_______________]) for the registration of the Debt Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in
-2-
<PAGE> 3
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement. Such registration statement (as so amended, if
applicable) has been declared effective by the Commission and the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act"). Such registration statement (as so amended, if applicable),
including the information, if any, deemed to be a part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations (the "Rule 430A Information") or Rule
434(d) of the 1933 Act Regulations (the "Rule 434 Information"), is referred to
herein as the "Registration Statement"; and the final prospectus and the
prospectus supplement relating to the offering of the Underwritten Debt
Securities, in the form first furnished to the Underwriters by the Company for
use in connection with the offering of the Underwritten Debt Securities, are
collectively referred to herein as the "Prospectus"; provided, however, that
all references to the "Registration Statement" and the "Prospectus" shall be
deemed to include all documents incorporated therein by reference pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the
execution of the applicable Terms Agreement; provided, further, that if the
Company files a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462 Registration Statement"),
then, after the filing, all references to "Registration Statement" shall be
deemed to include the Rule 462 Registration Statement; and provided, further,
that if the Company elects to rely upon Rule 434 of the 1933 Act Regulations,
then all references to "Prospectus" shall be deemed to include the final or
preliminary prospectus and the applicable term sheet or abbreviated term sheet
(the "Term Sheet"), as the case may be, in the form first furnished to the
Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Underwriting Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
registration statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used
after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of
-3-
<PAGE> 4
this Underwriting Agreement, all references to the Registration Statement,
Prospectus Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial
statements and schedules and other information which is "contained," "included"
or "stated" (or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The
Company represents and warrants to __________________, as of the date hereof,
and to each Underwriter named in the applicable Terms Agreement, as of the date
thereof, as of the Closing Time (as defined below) and, if applicable, as of
each Date of Delivery (as defined below) (in each case, a "Representation
Date"), as follows:
(1) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with. In addition, the
Indenture has been duly qualified under the 1939 Act.
-4-
<PAGE> 5
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto (including the filing of the Company's most recent Annual
Report on Form 10-K with the Commission (the "Annual Report on Form
10-K") became effective and at each Representation Date, the
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respect with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. At the date of the
Prospectus, at the Closing Time and at each Date of Delivery, if any,
the Prospectus and any amendments and supplements thereto did not and
will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If the Company elects to rely upon Rule 434 of the
1933 Act Regulations, the Company will comply with the requirements of
Rule 434. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through __________________
expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with
the offering of Underwritten Debt Securities will, at the time of such
delivery, be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
-5-
<PAGE> 6
(2) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in
the Prospectus, at the date of the Prospectus, at the Closing Time and
at each Date of Delivery, if any, did not and will not include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who
certified the financial statements and supporting schedules included
in the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(4) Financial Statements. The financial statements of
the Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be,
at the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, for the
periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data and the summary financial information included in the Prospectus
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements
included in the Registration Statement and the Prospectus. In
addition, any pro forma financial statements of the Company and its
subsidiaries and the related notes thereto
-6-
<PAGE> 7
included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise (a "Material Adverse Effect"), whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those arising in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise and (C) except for regular quarterly dividends on the
Company's common stock, in amounts per share that are consistent with
past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Illinois and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under, or as contemplated under, this
Underwriting Agreement and the applicable Terms Agreement. The
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect.
-7-
<PAGE> 8
(7) Good Standing of Subsidiaries. Each
"significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act)
(each, a "Subsidiary" and, collectively, the "Subsidiaries"), if any,
has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized
and is validly issued, fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of the
Subsidiaries was issued in violation of preemptive or other similar
rights arising by operation of law, under the charter or by-laws of
any subsidiary or under any agreement to which the Company or any
subsidiary is a party, or otherwise.
(8) Authorization of This Underwriting Agreement
and Terms Agreement. This Underwriting Agreement has been, and
the applicable Terms Agreement as of the date thereof will have been,
duly authorized, executed and delivered by the Company.
(9) Authorization of Debt Securities. The
Underwritten Debt Securities have been, or as of the date of
such Terms Agreement will have been, duly authorized by the Company
for issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Underwritten Debt Securities, when issued
and authenticated in the manner provided for in the Indenture and
delivered against payment of the consideration therefor specified in
such Terms Agreement will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement
-8-
<PAGE> 9
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles, and except
further as enforcement thereof may be limited by (A) requirements that
a claim with respect to any Debt Securities denominated other than in
U.S. dollars (or a foreign or composite currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of
payments outside the United States. Such Underwritten Debt Securities
will be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the Indenture.
(10) Authorization of the Indenture. The Indenture has been,
or prior to the issuance of the Debt Securities thereunder will have
been, duly authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, will constitute a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles.
(11) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary
is subject (collectively, "Agreements and Instruments"), except for
such defaults that would not result in a Material Adverse Effect. The
execution, delivery and performance of this Underwriting Agreement,
the applicable Terms Agreement and the Indenture, and any other
agreement or instrument entered into or issued or to be entered into
or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and
the Prospectus and the
-9-
<PAGE> 10
consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Debt Securities and the use of the proceeds
from the sale of the Underwritten Debt Securities as described under
the caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any subsidiary pursuant to any Agreements and Instruments,
except for such conflicts, breaches, defaults, events or liens,
charges or encumbrances that would not result in a Material Adverse
Effect, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(12) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Company threatened, against or affecting the
Company or any subsidiary thereof which is required to be disclosed in
the Registration Statement and the Prospectus (other than as stated
therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the assets, properties or operations
thereof or the consummation of this Underwriting Agreement, the
applicable Terms Agreement, the Indenture or the transactions
contemplated herein or therein. The aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary
thereof
-10-
<PAGE> 11
is a party or of which any of their respective assets, properties or
operations is the subject which are not described in the Registration
Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(13) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and/or filed as required.
(14) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations under this Underwriting Agreement or the applicable
Terms Agreement or in connection with the transactions contemplated
under this Underwriting Agreement, such Terms Agreement or the
Indenture, except such as have been already obtained or as may be
required under state securities laws.
(15) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them. The
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are valid
and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification
of any such Governmental Licenses which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
-11-
<PAGE> 12
(16) Investment Company Act. The Company is not, and upon
the issuance and sale of the Underwritten Debt Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act").
(17) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except such violations
as would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law and any
judicial or administrative interpretation thereof including any
judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notice of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any
of its subsidiaries relating to any Hazardous Materials or the
violation of any Environmental Laws.
(18) Compliance With Cuba Act. The Company has complied
with, and will be in compliance with, the
-12-
<PAGE> 13
provisions of that certain Florida act relating to disclosure of doing
business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder or is exempt
therefrom.
(b) Officers' Certificates. Any certificate signed by
any officer of the Company or any subsidiary and delivered to any Underwriter
or to counsel for the Underwriters in connection with the offering of the
Underwritten Debt Securities shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby on the date
of such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Debt Securities. The several
commitments of the Underwriters to purchase the Underwritten Debt Securities
pursuant to the applicable Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
(b) Option Underwritten Debt Securities. In addition,
subject to the terms and conditions herein set forth, the Company may grant, if
so provided in the applicable Terms Agreement, an option to the Underwriters,
severally and not jointly, to purchase up to the number or aggregate principal
amount, as the case may be, of the Option Underwritten Debt Securities set
forth therein at a price per Option Underwritten Debt Security equal to the
price per Initial Underwritten Debt Security. Such option, if granted, will
expire 30 days after the date of such Terms Agreement, and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Debt Securities upon notice by
__________________ to the Company setting forth the number or aggregate
principal amount, as the case may be, of Option Underwritten Debt Securities as
to which the several Underwriters are then exercising the option and the time,
date and place of payment and delivery for such Option Underwritten Debt
Securities. Any such time and date of payment and delivery (each, a "Date of
Delivery") shall be determined by __________________, but shall not be later
than seven full business days after the exercise of said option, nor in any
event
-13-
<PAGE> 14
prior to the Closing Time, unless otherwise agreed upon by __________________
and the Company. If the option is exercised as to all or any portion of the
Option Underwritten Debt Securities, each of the Underwriters, severally and
not jointly, will purchase that proportion of the total number or aggregate
principal amount, as the case may be, of Option Underwritten Debt Securities
then being purchased which the number or aggregate principal amount, as the
case may be, of Initial Underwritten Debt Securities each such Underwriter has
severally agreed to purchase as set forth in such Terms Agreements bears to the
total number or aggregate principal amount, as the case may be, of Initial
Underwritten Debt Securities, subject to such adjustments as __________________
in its discretion shall make to eliminate any sales or purchases of a
fractional number or aggregate principal amount, as the case may be, of Option
Underwritten Debt Securities.
(c) Payment. Payment of the purchase price for, and
delivery of, the Initial Underwritten Securities shall be made at the offices
of Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New
York 10004-1490, or at such other place as shall be agreed upon by
__________________ and the Company, at 10:00 A.M. (Eastern time) on the third
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10 hereof), or such other time not later than ten
business days after such date as shall be agreed upon by __________________ and
the Company (such time and date of payment and delivery being herein called
"Closing Time"). In addition, in the event that the Underwriters have
exercised their option, if any, to purchase any or all of the Option
Underwritten Debt Securities, payment of the purchase price for, and delivery
of such Option Underwritten Debt Securities shall be made at the above
mentioned offices of Winthrop, Stimson, Putnam & Roberts, or at such other
place as shall be agreed upon by __________________ and the Company.
Payment shall be made to the Company by certified or official
bank check or checks drawn in New York Clearing House funds or similar next day
funds payable to the order of the Company, against delivery to
__________________ for the respective accounts of the Underwriters of the
Underwritten Debt Securities to be purchased by them. It is understood that
each Underwriter has authorized __________________, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Debt Securities which it has
-14-
<PAGE> 15
severally agreed to purchase. __________________, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Debt Securities to be
purchased by any Underwriter whose check has not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Debt
Securities shall be in such denominations and registered in such names as
__________________ may request in writing at least one full business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be. The
Underwritten Debt Securities will be made available for examination and
packaging by __________________ in the City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants
with __________________ and with each Underwriter participating in the offering
of Underwritten Debt Securities as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434
of the 1933 Act Regulations, if and as applicable, and will notify the
Representative(s) immediately, and confirm the notice in writing, of
(i) the effectiveness of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to
the Prospectus, (ii) the receipt of any comments from the Commission,
(iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Debt Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly
effect the filings
-15-
<PAGE> 16
necessary pursuant to Rule 424 and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted for
filing under Rule 424 was received for filing by the Commission and,
in the event that it was not, it will promptly file the Prospectus.
The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give
__________________ notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under
Rule 462(b) of the 1933 Act Regulations), any Terms Agreement or any
amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish __________________ with copies of any such
documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which __________________ or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to __________________ and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of
experts, and will also deliver to __________________, without charge,
a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the
Underwriters. If applicable, the copies of the Registration Statement
and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to
each Underwriter, without charge, as many copies
-16-
<PAGE> 17
of each preliminary prospectus as such Underwriter may reasonably
request, and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably
request. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriter will be identical to
the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion
of the distribution of the Underwritten Debt Securities as
contemplated in this Underwriting Agreement and the applicable Terms
Agreement and in the Registration Statement and the Prospectus. If at
any time when the Prospectus is required by the 1933 Act or the 1934
Act to be delivered in connection with sales of the Debt Securities,
any event shall occur or condition shall exist as a result of which it
is necessary, in the opinion of counsel for the Underwriters or for
the Company, to amend the Registration Statement in order that the
Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
to amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary,
in the opinion of counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters, without charge,
-17-
<PAGE> 18
such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
Underwritten Debt Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions
(domestic or foreign) as __________________ may designate and to
maintain such qualifications in effect for a period of not less than
one year from the date of the applicable Terms Agreement; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the Underwritten Debt Securities have
been so qualified, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from
the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such
reports pursuant to the 1934 Act as are necessary in order to make
generally available to its security holders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Underwritten Debt Securities in
the manner specified in the Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect
the listing of the Underwritten Debt Securities prior to the Closing
Time, on any national securities exchange or quotation system if and
as specified in the applicable Terms Agreement.
(j) Restriction on Sale of Debt Securities. Between the date
of the applicable Terms Agreement and the Closing Time or such other
date specified in such Terms Agreement,
-18-
<PAGE> 19
the Company will not, without the prior written consent of
__________________, directly or indirectly, issue, sell, offer to
sell, grant any option for the sale of, or otherwise dispose of, the
Debt Securities specified in such Terms Agreement.
(k) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required
by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company
will pay all expenses incident to the performance of its obligations under this
Underwriting Agreement or the applicable Terms Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Underwriting Agreement, any Terms Agreement, any Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Underwritten
Debt Securities, (iii) the preparation, issuance and delivery of the
Underwritten Debt Securities and any certificates for the Underwritten Debt
Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors or agents (including transfer
agents and registrars), as well as the fees and disbursements of the Trustee
and its counsel, (v) the qualification of the Underwritten Debt Securities
under state securities laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey and any Legal
Investment Survey, and any amendment thereto, (vi) the printing and delivery to
the Underwriters of copies of each preliminary prospectus, any Term Sheet and
the Prospectus and any amendments or supplements thereto, (vii) the fees
charged by nationally statistical rating organizations for the rating of the
Underwritten Debt Securities, (viii) the fees and expenses incurred with
respect to the listing of the Underwritten Debt Securities, (ix) the filing
fees incident to, and the reasonable fees and disbursements of counsel for the
Underwriters in
-19-
<PAGE> 20
connection with, the review, if any, by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Debt Securities and (x) the fees and expenses of any
Underwriter acting in the capacity of a "qualified independent
underwriter" (as defined in Section 2(1) of Schedule E of the by-laws
of the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms
Agreement is terminated by __________________ in accordance with the provisions
of Section 5 or Section 9(b)(i) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligation of the Underwriters to purchase and pay for the Underwritten Debt
Securities pursuant to the applicable Terms Agreement are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the
Underwritten Debt Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable
(or any required post-effective amendment providing such information
shall have bene filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Company has elected to rely
upon rule 434 of the 1933 Act Regulations, a Term Sheet including the
Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
-20-
<PAGE> 21
(b) Opinion of Counsel for Company. At Closing Time,
__________________ shall have received the favorable opinion, dated as
of Closing Time, of Schiff Hardin & Waite, counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters, to the effect set forth in Exhibit B hereto
and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time,
__________________ shall have received the favorable opinion, dated as
of Closing Time, of Winthrop, Stimson, Putnam & Roberts, counsel for
the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters with respect to the matters
set forth in (1), (6), (7) to (14), as applicable, (15), (16) (solely
as to the information in the Prospectus under "Description of the
Underwritten Securities" and "Description of the Underlying
Securities", if any, or any caption purporting to describe any such
Securities), (22), (23) and the penultimate paragraph of Exhibit B
hereto. In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of
the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to __________________ (which, in the case of the
law of Illinois, shall include Schiff Hardin & Waite). Such counsel
may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of
public officials.
(d) Officers' Certificate. At Closing Time, there shall
not have been, since the date of the applicable Terms Agreement or
since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and
__________________ shall have received a certificate of the President
or a Vice President of the Company and of the chief financial officer
or chief accounting officer of the
-21-
<PAGE> 22
Company, dated as of Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and
effect as though expressly made at and as of the Closing Time, (iii)
the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Time and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the
execution of the applicable Terms Agreement, __________________ shall
have received from Price Waterhouse LLP a letter dated such date, in
form and substance satisfactory to __________________, together with
signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus.
(f) Bring-down Comfort Letter. At Closing Time,
__________________ shall have received from Price Waterhouse LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of
this Section 5, except that the specified date referred to shall be a
date not more than three business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of
Delivery, the Underwritten Debt Securities shall have the ratings
accorded by any "nationally recognized statistical rating
organization", as defined by the Commission for purposes of Rule
436(g)(2) of the 1933 Act Regulations, if and as specified in the
applicable Terms Agreement, and the Company shall have delivered to
__________________ a letter, dated as of such date, from each such
rating organization, or other evidence satisfactory to
__________________, confirming that the Underwritten Debt Securities
have such ratings. Since the time of execution of such Terms
Agreement, there shall not have occurred a downgrading in the rating
assigned to the Underwritten Debt Securities or
-22-
<PAGE> 23
any of the Company's other securities by any such rating organization,
and no such rating organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of the Underwritten Debt Securities or any of the Company's
other securities.
(h) Approval of Listing. At Closing Time, the Underwritten
Debt Securities shall have been approved for listing, subject only to
official notice of issuance, if and as specified in the applicable
Terms Agreement.
(i) No Objection. If the Registration Statement or an
offering of Underwritten Debt Securities has been filed with the NASD
for review, the NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and
arrangements.
(j) Lock-up Agreements. On the date of the applicable
Terms Agreement, __________________ shall have received in form and
substance satisfactory to it, each lock-up agreement, if any,
specified in such Terms Agreement as being required to be delivered by
the persons listed therein.
(k) Over-Allotment Option. In the event that the
Underwriters are granted an over-allotment option by the Company in
the applicable Terms Agreement and the Underwriters exercise their
option to purchase all or any portion of the Option Underwritten Debt
Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished to
the Company hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, __________________
shall have received:
(1) A certificate, dated such Date of Delivery,
of the President or a Vice President of the Company and the
chief financial officer or chief accounting officer of the
Company, confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and
correct as of such Date of Delivery.
-23-
<PAGE> 24
(2) The favorable opinion of Schiff
Hardin & Waite, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Underwritten
Debt Securities and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(3) The favorable opinion of Winthrop, Stimson,
Putnam & Roberts counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Underwritten Debt
Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Price Waterhouse LLP, in form
and substance satisfactory to __________________ and dated
such Date of Delivery, substantially in the same form and
substance as the letter furnished to __________________
pursuant to Section 5(f) hereof, except that the "specified
date" on the letter furnished pursuant to this paragraph shall
be a date not more than three business days prior to such Date
of Delivery.
(l) Additional Documents. At Closing Time and at each
Date of Delivery, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Underwritten Debt Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Underwritten Debt Securities as herein contemplated shall
be satisfactory in form and substance to __________________ and
counsel for the Underwriters.
(m) Termination of Terms Agreement. If any condition
specified in this Section 5 shall not have been fulfilled when and as
required to be fulfilled, the applicable Terms Agreement (or, with
respect to the Underwriters' exercise of any applicable over-allotment
option for the purchase of Option Underwritten Debt Securities on a
Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Debt Securities on
such
-24-
<PAGE> 25
Date of Delivery) may be terminated by __________________ by notice to
the Company at any time at or prior to the Closing Time (or such Date
of Delivery, as applicable), and such termination shall be without
liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6 and 7 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel
-25-
<PAGE> 26
chosen by __________________), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through __________________ expressly for use in the Registration
Statement (or any amendment thereto), including the 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through
__________________ expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve
-26-
<PAGE> 27
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by
__________________, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement Without Consent if Failure to Reimburse. If
at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party
-27-
<PAGE> 28
shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Underwritten Debt Securities pursuant to the applicable Terms
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company, on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, in connection with the offering
of the Underwritten Debt Securities pursuant to the applicable Terms Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Underwritten Debt Securities (before
deducting expenses) received by the Company and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of such Underwritten
Debt Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
-28-
<PAGE> 29
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Debt Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act of Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number or aggregate principal amount, as the
case may be, of Initial Underwritten Debt Securities set forth opposite their
respective names in the applicable Terms Agreement, and not joint.
-29-
<PAGE> 30
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Underwriting Agreement or the applicable Terms Agreement or in
certificates of officers of the Company submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Debt Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement
(excluding the applicable Terms Agreement) may be terminated for any reason at
any time by the Company or by __________________ upon the giving of 30 days'
prior written notice of such termination to the other party hereto.
(b) Terms Agreement. __________________ may terminate
the applicable Terms Agreement, by notice to the Company, at any time at or
prior to the Closing Time or any relevant Date of Delivery, if (i) there has
been, since the time of execution of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of __________________, impracticable to
market the Underwritten Debt Securities or to enforce contracts for the sale of
the Underwritten Debt Securities, or (iii) trading in any securities of the
Company has been suspended or limited by the Commission, the New York Stock
Exchange or the Chicago Stock Exchange, or if trading generally on the New York
Stock Exchange or the American Stock Exchange or in the over-the-counter market
has been suspended or limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the
-30-
<PAGE> 31
Commission, the NASD or any other governmental authority or (iv) a banking
moratorium has been declared by either Federal or New York authorities.
(c) Liabilities. If this Underwriting Agreement or the
applicable Terms Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof, and provided further that Sections 1, 6 and 7
shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at the Closing Time or the relevant
Date of Delivery, as the case may be, to purchase the Underwritten Debt
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Securities"), then __________________ shall
have the right, within 24 hours thereafter, to make arrangements for one or
more of the non- defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
__________________ shall not have completed such arrangements within such
24-hour period, then:
(a) if the number or aggregate principal amount, as the
case may be, of Defaulted Securities does not exceed 10% of the number
or aggregate principal amount, as the case may be, of Underwritten
Debt Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such
Terms Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the
case may be, of Defaulted Securities exceeds 10% of the number or
aggregate principal amount, as the case may be, of Underwritten Debt
Securities to be purchased on such date pursuant to such Terms
Agreement, such Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option
-31-
<PAGE> 32
Underwritten Debt Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the Company
to sell, such Option Underwritten Debt Securities on such Date of
Delivery) shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i)
a termination of the applicable Terms Agreement or (ii) in the case of a Date
of Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Debt Securities, as the case may be, either __________________ or the Company
shall have the right to postpone the Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to ___________________________; and notices
to the Company shall be directed to it at Illinova Corporation, 500 South 27th
Street, Decatur, Illinois 62525, attention of [_________________].
SECTION 12. Parties. This Underwriting Agreement and the
applicable Terms Agreement shall each inure to the benefit of and be binding
upon the Company, __________________ and, upon execution of such Terms
Agreement, any other Underwriters and their respective successors. Nothing
expressed or mentioned in this Underwriting Agreement or such Terms Agreement
is intended or shall be construed to give any person, firm or corporation,
other than the Underwriters and the Company and their respective successors and
the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Underwriting Agreement or such
Terms Agreement or any provision herein or therein contained. This
-32-
<PAGE> 33
Underwriting Agreement and such Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Underwritten Debt Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING
AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
-33-
<PAGE> 34
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will become
a binding agreement between __________________ and the Company in accordance
with its terms.
Very truly yours,
ILLINOVA CORPORATION
By:______________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above
written
By:_____________________________
Authorized Signatory
-34-
<PAGE> 35
Exhibit A
ILLINOVA CORPORATION
(an Illinois Corporation)
Debt Securities
TERMS AGREEMENT
To: Illinova Corporation
500 South 27th Street
Decatur, Illinois 62525
Ladies and Gentlemen:
We understand that Illinova Corporation, an Illinois
corporation (the "Company"), proposes to issue and sell $[____________]
aggregate principal amount of its senior debt securities (the "Debt
Securities") (such securities also being hereinafter referred to as the
"Initial Underwritten Debt Securities"). Subject to the terms and conditions
set forth or incorporated by reference herein, we the underwriters named below
(the "Underwriters") offer to purchase, severally and not jointly, the
principal amount of Underwritten Debt Securities opposite our names set forth
below at the purchase price set forth below, and a proportionate share of
Option Underwritten Debt Securities set forth below, to the extent any are
purchased.
Principal Amount of Initial
Underwriter Underwritten Debt Securities
___________________________ $[______________]
[_____________________] $[______________]
Total $[______________]
The Underwritten Debt Securities shall have the following
terms:
Title: Senior Debt Securities
Rank: Senior unsecured indebtedness of the Company
Ratings:
Aggregate principal amount:
<PAGE> 36
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: [____] % of
the principal amount, plus accrued interest [amortized original issue
discount], if any, from [_________].
Purchase price per share: [___] % of principal amount, plus accrued interest
[amortized original issue discount], if any, from [___________] (payable in
next day funds).
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as
Annex I hereto entitled "ILLINOVA CORPORATION -- Senior Debt Securities --
Underwriting Agreement" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined.
Please accept this offer no later than [___] o'clock P.M. (New
York City time) on [_______] [__], 199[_] by signing a copy of this Terms
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours,
__________________
By___________________________
-2-
<PAGE> 37
Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
Accepted:
By______________________
Name:
Title:
-3-
<PAGE> 38
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Illinois.
(2) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement.
(3) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
(4) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and is
validly issued, fully paid and non-assessable and, to the best of our knowledge
and information, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding shares of capital stock of the
Subsidiaries was issued in violation of preemptive or other similar rights.
(5) The Underwriting Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered by the Company.
<PAGE> 39
(6) The Underwritten Debt Securities have been duly
authorized by the Company for issuance and sale pursuant to the Underwriting
Agreement and the applicable Terms Agreement. The Underwritten Debt
Securities, when issued and authenticated in the manner provided for in the
Indenture and delivered against payment of the consideration therefor specified
in such Terms Agreement, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles, [and except
further as enforcement thereof may be limited by (A) requirements that a claim
with respect to any Debt Securities denominated other than in U.S. dollars (or
a foreign or composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States.] The Underwritten
Debt Securities are in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the Indenture.
(7) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(8) The Underwritten Debt Securities being sold pursuant
to the applicable Terms Agreement and the Indenture in all material respects to
the statements relating thereto contained in the Prospectus and are in
substantially the form filed or incorporated by reference, as the case may be,
as an exhibit to the Registration Statement.
(9) The information in the Prospectus under "Description
of Senior Debt Securities" and "______________" has been reviewed by us and is
correct in all material respects.
-2-
<PAGE> 40
(10) The execution, delivery and performance of the
Underwriting Agreement, the applicable Terms Agreement and the Indenture and
any other agreement or instrument entered into or issued or to be entered into
or issued by the Company in connection with the transactions contemplated in
the Registration Statement and the Prospectus and the consummation of the
transactions contemplated in the Underwriting Agreement and such Terms
Agreement and in the Registration Statement and the Prospectus (including the
issuance and sale of the Underwritten Debt Securities and the use of the
proceeds from the sale of the Underwritten Debt Securities as described under
the caption "Use of Proceeds") and compliance by the Company with its
obligations thereunder do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or any other agreement or instrument,
known to us, to which the Company or any subsidiary is a party or by which it
or any of them may be bound, or to which any of the assets, properties or
operations of the Company or any subsidiary is subject, except for such
conflicts, breaches, defaults, events or liens, charges or encumbrances that
would not result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations.
(11) To the best of our knowledge and information, there
is no action, suit, proceeding, inquiry or investigation before or by any
court or governmental agency or body, domestic or foreign, now pending or
threatened, against or affecting the Company or any subsidiary thereof which
is required to be disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the assets, properties or operations thereof
or the consummation of the Underwriting Agreement, the applicable Terms
Agreement or the Indenture or the transactions contemplated therein.
-3-
<PAGE> 41
(12) All descriptions in the Prospectus of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects. To the best of our knowledge and
information, there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(13) To the best of our knowledge and information, there
are no statutes or regulations that are required to be described in the
Prospectus that are not described as required.
(14) The Registration Statement has been declared effective
under the 1933 Act. Any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b). To the best of our knowledge and information, no stop order suspending
the effectiveness of the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the Commission.
(15) The Registration Statement, the Rule 430A Information,
the Rule 434 Information and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and supporting schedules included therein and each
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1s"), as to which
no opinion need be rendered) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
(16) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules therein, as to
which no opinion need be rendered), when they were filed with the Commission
complied as to form in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder.
-4-
<PAGE> 42
(17) No filing with, or authorization, approval, consent,
license, order registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance
by the Company of its obligations under the Underwriting Agreement or the
applicable Terms Agreement or in connection with the transactions contemplated
under the Underwriting Agreement, such Terms Agreement or the Indenture other
than under the 1933 Act the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations, which have been obtained, or as may be required under state
securities or blue sky laws.
(18) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
Nothing has come to our attention that would lead us to
believe that the Registration Statement (except for financial statements and
schedules and other financial data included therein and for the Form T-1s, as
to which we make no statement), at the time the Registration Statement or any
post-effective amendment thereto (including the filing of the Company's Annual
Report on Form 10-K with the Commission) became effective or at the date of the
applicable Terms Agreement, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and schedules
and other financial data included therein as to which we make no statement), at
the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, included or includes
an untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
-5-
<PAGE> 1
EXHIBIT 4
================================================================================
INDENTURE
ILLINOVA CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO, AS TRUSTEE
Dated as of __________, 1996
__________
================================================================================
<PAGE> 2
ILLINOVA CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF
_______________, 199__
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- ------------------ -----------------
<S> <C> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.9; 5.12
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.10
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.10
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9; 3.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5; 9.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.11; 3.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1(a)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1(b)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.12
Section 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1; 4.9
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6; 4.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.7
</TABLE>
- -------------
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture and shall not have any
bearing on the interpretation of its terms or provisions.
<PAGE> 4
TABLE OF CONTENTS
----------
<TABLE>
<CAPTION>
Page
ARTICLE ONE
DEFINITIONS
<S> <C>
SECTION 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Authenticating Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Authorized Newspaper" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Bearer Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Consolidated Capitalization" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Consolidated Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Consolidated Shareholders' Equity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Consolidated Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Coupon" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Covenant Defeasance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Depositary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Dollar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"ECU" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Foreign Currency" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Holder of Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Securityholder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Illinois Power" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Issuer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Issuer Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Judgment Currency" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Non-Recourse Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Officers' Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Original Issue Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Original Issue Discount Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Periodic Offering" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Principal" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Record Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Registered Global Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Registered Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Required Currency" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Stated Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Trust Indenture Act of 1939" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Unregistered Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"United States Government Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Yield to Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
ARTICLE TWO
SECURITIES
<TABLE>
<S> <C> <C>
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.3 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.4 Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.5 Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.7 Denomination and Date of Securities; Payments of Interest . . . . . . . . . . . . . . . . . 12
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . 15
SECTION 2.10 Cancellation of Securities; Disposition Thereof . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE THREECOVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.2 Offices for Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.4 Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.5 Written Statement to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.6 Limitations upon Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.7 Luxembourg Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.8 Securityholders Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.9 Reports by the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.10 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.11 Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
</TABLE>
<PAGE> 6
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
<TABLE>
<S> <C> <C>
SECTION 4.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default . . . . . . . . . . . 23
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt . . . . . . . . . . . . . . . 25
SECTION 4.3 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.4 Suits for Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.6 Limitations on Suits by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.7 Unconditional Right of Securityholders to Institute Certain Suits . . . . . . . . . . . . . 29
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.9 Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.10 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay Costs . . . . . . . . . . . . . . . 31
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.2 Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.4 Trustee and Agents May Hold Securities or Coupons; Collections, etc. . . . . . . . . . . . 33
SECTION 5.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.6 Compensation and Indemnification of Trustee and Its Prior Claim . . . . . . . . . . . . . . 33
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc. . . . . . . . . . . . . . . . . . . 34
SECTION 5.8 Persons Eligible for Appointment as Trustee . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.9 Resignation and Removal; Appointment of Successor Trustee . . . . . . . . . . . . . . . . . 34
SECTION 5.10 Acceptance of Appointment by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business of Trustee . . . . . . . . . . 36
SECTION 5.12 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.13 Preferential Collection of Claims Against the Issuer . . . . . . . . . . . . . . . . . . . 37
SECTION 5.14 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.2 Proof of Execution of Instruments and of Holding of Securities . . . . . . . . . . . . . . 38
SECTION 6.3 Holders to be Treated as Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.5 Right of Revocation of Action Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
</TABLE>
<PAGE> 7
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
<TABLE>
<S> <C> <C>
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders . . . . . . . . . . . . . . . . 40
SECTION 7.2 Supplemental Indentures With Consent of Securityholders . . . . . . . . . . . . . . . . . . 41
SECTION 7.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.4 Documents to Be Given to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.5 Notation on Securities in Respect of Supplemental Indentures . . . . . . . . . . . . . . . 43
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer May Consolidate, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 8.2 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.2 Application by Trustee of Funds Deposited for Payment of Securities . . . . . . . . . . . . 48
SECTION 9.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.5 Indemnity for United States Government Obligations . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.6 Excess Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties and Holders
of Securities and Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 10.3 Successors and Assigns of Issuer Bound by Indenture . . . . . . . . . . . . . . . . . . . . 49
SECTION 10.4 Notices and Demands on Issuer, Trustee and Holders of Securities
and Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 10.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939 . . . . . . . . . . 51
SECTION 10.8 New York Law to Govern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.10 Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.12 Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
</TABLE>
<PAGE> 8
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
<TABLE>
<S> <C> <C>
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 11.2 Notice of Redemption; Partial Redemptions . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 11.3 Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 11.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 11.5 Mandatory and Optional Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE TWELVE
MEETINGS OF HOLDERS OF SECURITIES
SECTION 12.1 Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 12.2 Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 12.3 Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 12.4 Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 12.5 Determination of Voting; Conduct and Adjournment of Meetings . . . . . . . . . . . . . . . 58
SECTION 12.6 Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . 59
</TABLE>
<PAGE> 9
THIS INDENTURE, dated as of __________, 1996 between ILLINOVA
CORPORATION, an Illinois corporation (the "Issuer"), and THE FIRST NATIONAL
BANK OF CHICAGO, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized in accordance with the terms
of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done.
NOW, THEREFORE, in consideration of the premises and the
purchases of the Securities by the holders thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective holders from time to time of the Securities and of the Coupons, if
any, appertaining thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Article. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939 or the definitions of which in the Securities Act of 1933 are referred to
in the Trust Indenture Act of 1939, including terms defined therein by
reference to the Securities Act of 1933 (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of this Indenture. All accounting terms used herein
and not expressly defined shall have the meanings assigned to such terms in
accordance with generally accepted accounting principles, and the term
"generally accepted accounting principles" means such accounting principles as
are generally accepted at the time of any computation. The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"Assets" shall have the meaning set forth in Section
3.6(b)(4).
"Authenticating Agent" shall have the meaning set forth in
Section 5.12.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom, will, if practicable, be
the Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The
<PAGE> 10
City of New York, the United Kingdom or in Luxembourg, as applicable. If it
shall be impractical in the opinion of the Trustee to make any publication of
any notice required hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval of the Trustee
shall constitute a sufficient publication of such notice.
"Bearer Security" means any Security established pursuant to
Section 2.1 which is payable to bearer, including, without limitation, unless
the context otherwise indicates, a Security in temporary or permanent global
bearer form.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board or other individuals duly authorized
to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that
in the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Consolidated Capitalization" shall have the meaning set forth
in Section 3.6(b)(1).
"Consolidated Indebtedness" shall have the meaning set forth
in Section 3.6(b)(5).
"Consolidated Shareholders' Equity" shall have the meaning set
forth in Section 3.6(b)(2).
"Consolidated Subsidiary" shall have the meaning set forth in
Section 3.6(b)(3).
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which
this Indenture is dated, located in the City of New York, New York.
"Coupon" means any interest coupon appertaining to a Security.
"Covenant Defeasance" shall have the meaning set forth in
Section 9.1(C).
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Issuer pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
2
<PAGE> 11
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as
such in Section 4.1.
"Foreign Currency" means a currency issued by the government
of a country other than the United States.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the Person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Illinois Power" means Illinois Power Company, a subsidiary of
the Issuer.
"Indebtedness" means indebtedness which is for money borrowed
from others. For purposes of Section 3.6 only, "Indebtedness" shall have the
meaning set forth in Section 3.6.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Issuer" means Illinova Corporation, an Illinois corporation,
and, subject to Article Eight, its successors and assigns.
"Issuer Order" means a written statement, request or order of
the Issuer signed in its name by the Chairman of the Board, the President, a
Vice President, a Secretary or a Treasurer of the Issuer.
"Judgment Currency" shall have the meaning set forth in
Section 10.12.
"Non-Recourse Indebtedness" means indebtedness of the Issuer
or Illinois Power in respect of which the recourse of the holder of such
indebtedness, whether direct or indirect and whether contingent or otherwise,
is effectively limited to specified assets, and with respect to which neither
the Issuer or Illinois Power provides any credit support.
3
<PAGE> 12
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Controller, Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Issuer and delivered to the Trustee. Each such certificate
shall comply with Section 314 of the Trust Indenture Act of 1939 and include
the statements provided for in Section 10.5, if applicable.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer and who shall
be satisfactory to the Trustee. Each such opinion shall comply with Section
314 of the Trust Indenture Act of 1939 and include the statements provided for
in Section 10.5, if applicable.
"Original Issue Date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security which is
issued at a price lower than the principal amount payable upon the Stated
Maturity thereof and that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 4.1.
"Outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
(a) securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) securities, or portions thereof, for the payment or
redemption of which moneys or United States Government Obligations (as provided
for in Section 9.1) in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Issuer) or shall have
been set aside, segregated and held in trust by the Issuer for the Holders of
such Securities (if the Issuer shall act as its own paying agent), provided
that if such Securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and
(c) securities which shall have been paid or in
substitution for which other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.9 (except with respect to any
such Security as to which proof satisfactory to the Trustee is presented such
Security is held by a Person in whose hands such Security is a legal, valid and
binding obligation of the Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or
whether a quorum is present at a meeting of Holders of Securities, (1) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.1,
and (2) the principal amount of a Security denominated in a foreign currency or
currencies, including composite currencies, shall be the Dollar equivalent,
determined on the date of original issuance of such Security in the manner
provided
4
<PAGE> 13
as contemplated by Section 2.3, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent on the date of original
issuance of such Security of the amount determined as provided in clause (1)
above) of such Security.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Principal" whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium,
if any".
"Record Date" shall have the meaning set forth in Section 2.7.
"Registered Global Security", means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.4, and bearing the legend prescribed
in Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Required Currency" shall have the meaning set forth in
Section 10.12.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president, (whether or not designated by numbers or words added before or
after the title "vice president") the cashier, the secretary, the treasurer,
any trust officer, any senior trust officer, any assistant trust officer, any
assistant vice president, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means any corporation at least a majority of the
outstanding securities of which having ordinary voting power shall be owned by
the Issuer and/or another Subsidiary or Subsidiaries.
5
<PAGE> 14
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990, as in force at the date as of which this
Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Five, shall
also include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a
Registered Security.
"United States Government Obligations" shall have the meaning
set forth in Section 9.1(A).
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each
series and the Coupons, if any, to be attached thereto shall be substantially
in such form (not inconsistent with this Indenture) as shall be established by
or pursuant to one or more Board Resolutions (as set forth in a Board
Resolution or, to the extent established pursuant to rather than set forth in a
Board Resolution, an Officers' Certificate detailing such establishment) or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
"This is one of the Securities referred to in the
within-mentioned Indenture.
-------------------------------------
as Trustee
6
<PAGE> 15
By
-----------------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Securities of such
series may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication to be borne by the Securities of each such
series, an alternative Certificate of Authentication substantially as follows:
"This is one of the Securities referred to in the
within-mentioned Indenture.
------------------------------------,
as Trustee
By
----------------------------------,
as Authenticating Agent
By
----------------------------------,
Authorized Officer"
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in
one or more series, and each such series shall rank equally and pari passu with
all other unsecured and unsubordinated debt of the Issuer, unless the Issuer
is required to secure the Securities pursuant to the debt provisions described
under Article III. There shall be established in or pursuant to one or more
Board Resolutions (and, to the extent established pursuant to rather than set
forth in a Board Resolution, in an Officers' Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series:
(1) the designation of the Securities of the series,
which shall distinguish the Securities of the series from the
Securities of all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 7.5 or
11.3);
(3) if other than Dollars, the coin or currency in which
the Securities of that series are denominated (including, but not
limited to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from which such
interest shall accrue, on which such interest shall be payable and (in
the case of Registered Securities) on which a record shall be taken
for the determination of Holders to whom interest is payable and/or
the method by which such rate or rates or date or dates shall be
determined;
7
<PAGE> 16
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than
as provided in Section 3.2);
(7) the right, if any, of the Issuer to redeem
Securities, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem,
repurchase or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which and the period or
periods within which and any terms and conditions upon which
Securities of the series shall be redeemed, repurchased or repaid, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof in the case of Registered Securities, or
$1,000 and $5,000 in the case of Unregistered Securities, the
denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the maturity
thereof;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or currency in
which payment of the principal of or interest on the Securities of
such series shall be payable;
(12) if the principal of or interest on the Securities of
such series are to be payable, at the election of the Issuer or a
Holder thereof, in a coin or currency other than that in which the
Securities are denominated, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(13) if the amount of payments of principal of and
interest on the Securities of the series may be determined with
reference to an index based on a coin or currency other than that in
which the Securities of the series are denominated, the manner in
which such amounts shall be determined;
(14) whether the Securities of the series will be issuable
as Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities
(with or without Coupons), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if other than as
provided in Section 2.8, the terms upon which Unregistered Securities
of any series may be exchanged for Registered Securities of such
series and vice versa;
(15) whether and under what circumstances the Issuer will
pay additional amounts on the Securities of the series held by a
Person who is not a United States Person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so,
whether the Issuer will have the option to redeem such Securities
rather than pay such additional amounts;
8
<PAGE> 17
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(17) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Securities of such series;
(18) any other Events of Default or covenants with respect
to the Securities of such series; and
(19) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officers' Certificate
referred to above or as set forth in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution, such Officers' Certificate or
in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities.
The Issuer may deliver Securities of any series having attached thereto
appropriate Coupons, if any, executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section) or pursuant to such procedures acceptable to
the Trustee and to such recipients as may be specified from time to time by an
Issuer Order. The maturity date, original issue date, interest rate and any
other terms of the Securities of such series and Coupons, if any, appertaining
thereto shall be specified in or pursuant to such Issuer Order and procedures.
If provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the Issuer or
its duly authorized agent, which instructions shall be promptly confirmed in
writing. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs 2, 3 and 4
below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 5.1)
shall be fully protected in relying upon, unless and until such documents have
been superceded or revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities and Coupons, if
any, are not to be delivered to the Issuer, provided that, with
respect to Securities of a series subject to a Periodic Offering, (a)
such Issuer Order may be delivered by the Issuer to the Trustee prior
to the delivery to the Trustee of such Securities for authentication
and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an
aggregate principal amount not exceeding the aggregate principal
amount established for such series, pursuant to an Issuer Order or
pursuant to procedures acceptable to the Trustee as may be specified
from time to time by an Issuer Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates and any other
terms of Securities of such series shall
9
<PAGE> 18
be determined by an Issuer Order or pursuant to such procedures and
(d) if provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or agents,
which oral instructions shall be promptly confirmed in writing;
(2) any Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by
or pursuant to which the forms and terms of the Securities and
Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or
forms and terms of the Securities and Coupons, if any, stating that
the form or forms and terms of the Securities and Coupons, if any,
have been established pursuant to Sections 2.1 and 2.3 and comply with
this Indenture, and covering such other matters as the Trustee may
reasonably request; and
(4) at the option of the Issuer, either an Opinion of
Counsel, or a letter addressed to the Trustee permitting to it to rely
on an Opinion of Counsel, substantially to the effect that:
(a) the forms of the Securities and Coupons, if
any, have been duly authorized and established in conformity
with the provisions of this Indenture;
(b) in the case of an underwritten offering, the
terms of the Securities have been duly authorized and
established in conformity with the provisions of this
Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities have been
established pursuant to a Board Resolution, an Officers'
Certificate or a supplemental indenture in accordance with
this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer
Order shall have been established, all such terms will have
been duly authorized by the Issuer and will have been
established in conformity with the provisions of this
Indenture;
(c) when the Securities and Coupons, if any, have
been executed by the Issuer and authenticated by the Trustee
in accordance with the provisions of this Indenture and
delivered to and duly paid for by the purchasers thereof, they
will have been duly issued under this Indenture and will be
valid and legally binding obligations of the Issuer,
enforceable in accordance with their respective terms, and
will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of,
and the performance by the Issuer of its obligations under,
the Securities and Coupons, if any, will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Issuer or any agreement or
other instrument binding upon the Issuer or any of its
Subsidiaries that is material to the Issuer and its
Subsidiaries, considered as one enterprise, or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Issuer or any Subsidiary, and no consent, approval or
authorization of any governmental body or agency is required
for the performance by the Issuer of its obligations under the
Securities and Coupons, if any, except such as are specified
and have been obtained and such as may be required by the
securities or blue sky laws of the various states in
connection with the offer and sale of the Securities.
10
<PAGE> 19
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the State of New York and the federal law of the United States, upon
opinions of other counsel (copies of which shall be delivered to the Trustee),
in which case the opinion shall state that such counsel believes he and the
Trustee are entitled so to rely. Such counsel may also state that, insofar as
such opinion involves factual matters, he has relied, to the extent he deems
proper, upon certificates of officers of the Issuer and its subsidiaries and
certificates of public officials.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i)
shall represent and shall be denominated in an amount equal to all or part of
the aggregate principal amount of the Securities of such series issued and not
yet canceled, (ii) shall be registered in the name of the Depositary for such
Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
Each Depositary must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation.
SECTION 2.5 Execution of Securities. The Securities and,
if applicable, each Coupon appertaining thereto shall be signed on behalf of
the Issuer by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal (except in the case of Coupons) which may,
but need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the
11
<PAGE> 20
Issuer, such Security or Coupon nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Security or Coupon had not
ceased to be such officer of the Issuer; and any Security or Coupon may be
signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of this Indenture
any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. No Coupon shall
be entitled to the benefits of this Indenture or shall be valid and obligatory
for any purpose until the certificate of authentication on the Security to
which such Coupon appertains shall have been duly executed by the Trustee. The
execution of such certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to
the benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments
of Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series
are not so established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with the approval
of the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in or
pursuant to the resolution or resolutions of the Board of Directors of the
Issuer referred to in Section 2.3. The Securities of each series shall bear
interest, if any, from the date, and such interest shall be payable on the
dates, established as contemplated by Section 2.3.
Unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 2.3, the Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the Persons in whose names Outstanding
Registered Securities for such series are registered at the close of business
on a subsequent record date (which shall be not less than five Business Days
prior to the date of payment of such defaulted interest) established by notice
given by mail by or on behalf of the Issuer to the Holders of Registered
Securities not less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment date (except a
date for payment of defaulted interest) for the Securities of any series shall
mean the date specified as such in the terms of the Registered Securities of
such series established as contemplated by Section 2.3, or, if no such date is
so established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the next preceding calendar month or, if such
interest payment date is the fifteenth day of a calendar month, the first day
of such calendar month, whether or not such record date is a Business Day.
12
<PAGE> 21
SECTION 2.8 Registration, Transfer and Exchange. The
Issuer will keep or cause to be kept at each office or agency to be maintained
for the purpose as provided in Section 3.2 for each series of Securities a
register in which, subject to such reasonable regulations as it may prescribe,
it will provide for the registration of Registered Securities of such series
and the registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by the
Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.2 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified pursuant to
Section 2.3, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section
3.2, with, in the case of Unregistered Securities that have Coupons attached,
all unmatured Coupons and all matured Coupons in default thereto appertaining,
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of
any series, maturity date, interest rate and original issue date are issued in
more than one authorized denomination, except as otherwise specified pursuant
to Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series, maturity date, interest rate and original issue date
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2
or as specified pursuant to Section 2.3, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Issuer shall
so require, of the charges hereinafter provided. Unless otherwise specified
pursuant to Section 2.3, Registered Securities of any series may not be
exchanged for Unregistered Securities of such series. Whenever any Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive. All Securities and Coupons surrendered upon
any exchange or transfer provided for in this Indenture shall be promptly
canceled and disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Issuer.
13
<PAGE> 22
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Global Security representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of
a series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary with respect to such Registered Securities. If
a successor Depositary for such Registered Securities is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of
such ineligibility, the Issuer's election pursuant to Section 2.3 that such
Registered Securities be represented by one or more Registered Global
Securities shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officers' Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
Coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities
representing such Registered Securities in exchange for such Registered Global
Security or Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of
one or more Registered Global Securities shall no longer be represented by a
Registered Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without Coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Global
Security or Securities representing such Registered Securities, in exchange for
such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global Security, the
Depositary for such Registered Global Security may surrender such Registered
Global Security in exchange in whole or in part for Securities of the same
series in definitive
14
<PAGE> 23
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any
authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security
in a denomination equal to the difference, if any, between the
principal amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in authorized
denominations, such Registered Global Security shall be canceled by the Trustee
or its agent. Securities in definitive registered form without Coupons issued
in exchange for a Registered Global Security pursuant to this Section 2.8 shall
be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee or
an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series
of Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely on
an Officers' Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Issuer (such as,
for example, the inability of the Issuer to deduct from its income, as computed
for Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall authenticate and
deliver a new Security of the same series, maturity date, interest rate and
original issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated
or defaced Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or
stolen, or in exchange or substitution for the Security to which such
mutilated, defaced, destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so mutilated, defaced,
destroyed, lost or stolen. In every case the applicant for a substitute
Security or Coupon shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
them to indemnify and defend and to save each of them harmless and, in every
case of destruction, loss or theft,
15
<PAGE> 24
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof and in the case of mutilation or
defacement shall surrender the Security and related Coupons to the Trustee or
such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or its agent)
connected therewith. In case any Security or Coupon which has matured or is
about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of
issuing a substitute Security, pay or authorize the payment of the same or the
relevant Coupon (without surrender thereof except in the case of a mutilated or
defaced Security or Coupon), if the applicant for such payment shall furnish to
the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the
Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security or Coupon shall be at any time enforceable by anyone and shall
be entitled to all the benefits of (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any and
all other Securities or Coupons of such series duly authenticated and delivered
hereunder. All Securities and Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or
destroyed, lost or stolen Securities and Coupons and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition
Thereof. All Securities and Coupons surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or any
agent of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if surrendered to
the Trustee, shall be canceled by it; and no Securities or Coupons shall be
issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee or its agent shall dispose of canceled
Securities and Coupons held by it and deliver a certificate of disposition to
the Issuer. If the Issuer or its agent shall acquire any of the Securities or
Coupons, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities or Coupons unless and until the
same are delivered to the Trustee or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the
preparation of definitive Securities for any series, the Issuer may execute and
the Trustee shall authenticate and deliver temporary Securities for such series
(printed, lithographed, typewritten or otherwise reproduced, in each case in
form satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered
Securities with or without Coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the
16
<PAGE> 25
concurrence of the Trustee as evidenced by the execution and authentication
thereof. Temporary Securities may contain such references to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be
executed by the Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. Without unreasonable delay the Issuer shall execute and
shall furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by the Issuer for that
purpose pursuant to Section 3.2 and, in the case of Unregistered Securities, at
any agency maintained by the Issuer for such purpose as specified pursuant to
Section 2.3, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations and,
in the case of Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of
such series, unless otherwise established pursuant to Section 2.3. The
provisions of this Section are subject to any restrictions or limitations on
the issue and delivery of temporary Unregistered Securities of any series that
may be established pursuant to Section 2.3 (including any provision that
Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The
Issuer covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay or cause to be paid the principal of, and
interest on, each of the Securities of such series (together with any
additional amounts payable pursuant to the terms of such Securities) at the
place or places, at the respective times and in the manner provided in such
Securities and in the Coupons, if any, appertaining thereto and in this
Indenture. The interest on Securities with Coupons attached (together with any
additional amounts payable pursuant to the terms of such Securities) shall be
payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If
any temporary Unregistered Security provides that interest thereon may be paid
while such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant to
the terms of such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Securities for notation thereon of the payment of
such interest, in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities (together with
any additional amounts payable pursuant to the terms of such Securities) shall
be payable only to or upon the written order of the Holders thereof entitled
thereto and, at the option of the Issuer, may be paid by wire transfer or by
mailing checks for such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the registry books of the
Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any
Registered Securities are authorized for issuance pursuant to this Indenture or
are outstanding hereunder, the Issuer will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Registered
Securities of each series may be presented for payment, where the Securities of
each series may be presented for exchange
17
<PAGE> 26
as is provided in this Indenture and, if applicable, pursuant to Section 2.3
and where the Registered Securities of each series may be presented for
registration of transfer as in this Indenture provided.
The Issuer will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in, or by mail to
an address in, the United States unless pursuant to applicable United States
laws and regulations then in effect such payment can be made without adverse
tax consequences to the Issuer. Notwithstanding the foregoing, payments in
Dollars of Unregistered Securities of any series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of the Issuer
maintained in the Borough of Manhattan, The City of New York if such payment in
Dollars at each agency maintained by the Issuer outside the United States for
payment on such Unregistered Securities is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City
of New York, an office or agency where notices and demands to or upon the
Issuer in respect of the Securities of any series, the Coupons appertaining
thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of location thereof.
In case the Issuer shall fail to maintain any agency required by this Section
to be located in the Borough of Manhattan, The City of New York, or shall fail
to give such notice of the location or of any change in the location of any of
the above agencies, presentations and demands may be made and notices may be
served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 5.9, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall
appoint a paying agent other than the Trustee with respect to the Securities of
any series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section:
18
<PAGE> 27
(a) that it will hold all sums received by it as such
agent for the payment of the principal of or interest on the
Securities of such series (whether such sums have been paid to it by
the Issuer or by any other obligor on the Securities of such series)
in trust for the benefit of the Holders of the Securities of such
series, or Coupons appertaining thereto, if any, or of the Trustee,
(b) that it will give the Trustee notice of any failure
by the Issuer (or by any other obligor on the Securities of such
series) to make any payment of the principal of or interest on the
Securities of such series when the same shall be due and payable, and
(c) that it will at any time during the continuance of
any such failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal
of or interest on the Securities of such series, deposit with the paying agent
a sum sufficient to pay such principal or interest so becoming due, and (unless
such paying agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series or the Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 9.1, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all
series of Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by the Issuer or
any paying agent hereunder, as required by this Section, such sums to be held
by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.3 and 9.4.
SECTION 3.5 Written Statement to Trustee. The Issuer
will furnish to the Trustee on or before May 31 in each year (beginning with
May 31, 1997) a brief certificate (which need not comply with Section 10.5)
from the principal executive, financial or accounting officer of the Issuer as
to his or her knowledge of the Issuer's compliance with all conditions and
covenants under the Indenture (such compliance to be determined without regard
to any period of grace or requirement of notice provided under the Indenture).
SECTION 3.6 Limitations upon Liens. (a) After the date
hereof and so long as any Securities are Outstanding, the Issuer will not
pledge, mortgage, hypothecate or grant a security interest in, or permit any
mortgage, pledge, security interest or other lien upon, any capital stock of
any Subsidiary now or hereafter owned by the Issuer, to secure any Indebtedness
(hereinafter defined) without making effective provision whereby the
Outstanding Securities shall (so long as such other Indebtedness shall be so
secured) be equally and ratably secured with any and all such other
Indebtedness and any other indebtedness similarly entitled to be equally and
ratably secured; provided, however, that this restriction shall not apply to
nor prevent the creation or existence of:
19
<PAGE> 28
(1) any mortgage, pledge, security interest, lien or
encumbrance upon any such capital stock created at the time of the
acquisition of such capital stock by the Issuer or within one year
after such time to secure all or a portion of the purchase price for
capital stock;
(2) any mortgage, pledge, security interest, lien or
encumbrance upon any such capital stock existing thereon at the time
of the acquisition thereof by the Issuer (whether or not the
obligations secured thereby are assumed by the Issuer); or
(3) any extension, renewal or refunding of any mortgage,
pledge, security interest, lien or encumbrance permitted by
Subsections (1) or (2) above on substantially the same capital stock
theretofore subject thereto or any portion thereof.
For purposes of this Section 3.6, "Indebtedness" means all
indebtedness, whether or not represented by bonds, debentures, notes or other
securities, created or assumed by the Issuer for the repayment of money
borrowed. All indebtedness for money borrowed secured by a lien upon property
owned by the Issuer and upon which indebtedness for money borrowed the Issuer
customarily pays interest, although the Issuer has not assumed or become liable
for the payment of such indebtedness for money borrowed, shall for purposes of
this Section 3.6 be deemed to be indebtedness of the Issuer. All indebtedness
for money borrowed of others guaranteed as to payment of principal by the
Issuer or in effect guaranteed by the Issuer through a contingent agreement to
purchase such indebtedness for money borrowed shall for purposes of this
Section 3.6 be deemed to be Indebtedness of the Issuer, but no other contingent
obligation of the Issuer in respect of indebtedness for money borrowed or other
obligations incurred by others shall for purposes of this Section 3.6 be deemed
to be Indebtedness of the Issuer.
In case the Issuer or any Subsidiary shall propose to pledge,
mortgage, hypothecate or grant a security interest in any capital stock of any
Subsidiary owned by the Issuer to secure any Indebtedness, other than as
permitted by Subsections (a)(1) to (a)(3), inclusive, of this Section 3.6, the
Issuer will prior thereto give written notice thereof to the Trustee, and the
Issuer will prior to or simultaneously with such pledge, mortgage,
hypothecation or grant of security interest, by supplemental indenture executed
to the Trustee (or to the extent legally necessary to another trustee or an
additional or separate trustee), in form satisfactory to the Trustee,
effectively secure (for so long as other Indebtedness shall be so secured) all
the Securities equally and ratably with such Indebtedness and with any other
indebtedness for money borrowed similarly entitled to be equally and ratably
secured.
(b) Except as otherwise specified as contemplated by
Section 2.3 for Securities of any series, the provisions of subsection (a) of
this Section 3.6 shall not apply in the event that the Issuer or any Subsidiary
shall pledge, mortgage, hypothecate or grant a security interest in or other
lien upon any capital stock of any Subsidiary now or hereafter owned by the
Issuer to secure any Indebtedness which would otherwise be subject to the
foregoing restriction up to an aggregate amount which, together with all other
Indebtedness (other than mortgages, pledges, security interests, liens or
encumbrances permitted by Subsection (a) of this Section 3.6) which would
otherwise be subject to the foregoing restriction, does not at the time exceed
5% of Consolidated Capitalization.
20
<PAGE> 29
For purposes of this Section 3.6:
(1) The term "Consolidated Capitalization" means
the sum obtained by adding (i) Consolidated Shareholders'
Equity, (ii) Consolidated Indebtedness for money borrowed
(exclusive of any thereof which is due and payable within one
year of the date such sum is determined) and, without
duplication, (iii) any preference or preferred stock of the
Issuer or any Consolidated Subsidiary which is subject to
mandatory redemption or sinking fund provisions.
(2) The term "Consolidated Shareholders' Equity"
means the total Assets of the Issuer and its Consolidated
Subsidiaries less all liabilities of the Issuer and its
Consolidated Subsidiaries. As used in this definition,
"liabilities" means all obligations which would, in accordance
with generally accepted accounting principles, be classified
on a balance sheet as liabilities, including without
limitation, (i) indebtedness secured by property of the Issuer
or any of its Consolidated Subsidiaries whether or not the
Issuer or such Consolidated Subsidiary is liable for the
payment thereof unless, in the case that the Issuer or such
Consolidated Subsidiary is not so liable, such property has
not been included among the Assets of the Issuer or such
Consolidated Subsidiary on such balance sheet, (ii) deferred
liabilities, and (iii) indebtedness of the Issuer or any of
its Consolidated Subsidiaries that is expressly subordinated
in right and priority of payment to other liabilities of the
Issuer or such Consolidated Subsidiary. As used in this
definition, "liabilities" includes preference for preferred
stock of the Issuer or any Consolidated Subsidiary only to the
extent of any such preference or preferred stock that is
subject to mandatory redemption or sinking fund provisions.
(3) The term "Consolidated Subsidiary" means at
any date any Subsidiary the financial statements of which
under generally accepted accounting principles would be
consolidated with those of the Issuer in its consolidated
financial statements as of such date.
(4) The "Assets" of any Person means the whole or
any part of its business, property, assets, cash and
receivables.
(5) The term "Consolidated Indebtedness" means
total indebtedness as shown on the consolidated balance sheet
of the Issuer and its Consolidated Subsidiaries.
SECTION 3.7 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 4.11, 5.9(a), 5.10, 7.2, 9.4,
11.2 or 11.5, the party making such publication in the Borough of Manhattan,
The City of New York and London shall also, to the extent that notice is
required to be given to Holders of Securities of any series by applicable
Luxembourg law or stock exchange regulation, as evidenced by an Officers'
Certificate delivered to such party, make a similar publication in Luxembourg.
SECTION 3.8 Securityholders Lists.
(a) If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer 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 the Securities
of such series pursuant
21
<PAGE> 30
to Section 312 of the Trust Indenture Act of 1939 (i) semi-annually
not more than 15 days after each record date for the payment of
interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.3 for
non-interest bearing securities in each year, and (ii) at such other
times as the Trustee may request in writing, within thirty days after
receipt by the Issuer of any such request as of a date not more than
15 days prior to the time such information is furnished.
(b) If three or more Holders of Securities (herein after
referred to as "applicants") apply in writing to the Trustee, and furnish to
the Trustee reasonable proof that each such applicant has owned a Security for
a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities with respect to their rights under this Indenture or
under the Securities and is accompanied by a copy of the form of proxy or other
communication that such applicants propose to transmit to such other Holders,
then the Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the
information preserved at the time by the Trustee in
accordance with Section 3.8(a), or
(ii) inform such applicants as to the approximate
number of Holders of Securities whose names and
addresses appear in the information preserved at the
time by the Trustee in accordance with Section
3.8(a), and as to the approximate cost of mailing to
such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities whose name and address appear in
the information preserved at the time by the Trustee in accordance with Section
3.8(a) a copy of the form of proxy or other communication that is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders of Securities or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any of
such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders of Securities with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise, the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities or coupons, by receiving
and holding the same, agrees with the Issuer and the Trustee that neither the
Issuer nor the Trustee nor any agent of either them shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 3.8(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 3.8(b).
22
<PAGE> 31
SECTION 3.9 Reports by the Issuer. The Issuer covenants to
file with the Trustee, within 15 days after the Issuer is required to file the
same with the Commission, copies of the annual reports and of the information,
documents, and other reports which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934.
SECTION 3.10 Reports by the Trustee. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted on or before April 15 in each year following the date hereof, so
long as any Securities are outstanding hereunder, and shall be dated as of a
date convenient to the Trustee no more than 60 nor less than 45 days prior
thereto.
SECTION 3.11 Waiver of Certain Covenants. The Issuer may
omit in any particular instance to comply with any term, provision or condition
set forth in Section 3.6 with respect to the Securities of any series if before
the time for such compliance the Holders of a majority in principal amount of
the Outstanding Securities of such series shall either waive such compliance in
such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Issuer and the duties of the
Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities of
any series wherever used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any instalment of interest
upon any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; or
(b) default in the payment of all or any part of the
principal on any of the Securities of such series as and when the same
shall become due and payable either at maturity, upon any redemption,
by declaration or otherwise; or
(c) default in the performance, or breach, of any
covenant or warranty of the Issuer in the Securities of such series
(other than a covenant or warranty in respect of the Securities of
such series a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with) and continuance of
such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Issuer by the Trustee
or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of all series
affected thereby, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
23
<PAGE> 32
(d) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Issuer a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization arrangement, adjustment or composition of or in respect
of the Issuer under the Federal bankruptcy law or any other applicable
Federal or state law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Issuer or of
any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(e) the institution by the Issuer of proceedings to be
adjudicated a bankrupt or insolvent or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Federal bankruptcy law or any other applicable
Federal or state law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Issuer or of
any substantial part of its property, or the making by it of a general
assignment for the benefit of creditors;
(f) the acceleration of the maturity of any indebtedness
for borrowed money of the Issuer or Illinois Power or the failure to
pay any portion of such indebtedness when due and payable after the
expiration of any applicable grace period (in each case, other than
the Securities of such series or Non-Recourse Indebtedness) having an
aggregate principal amount outstanding in excess of $25,000,000, if
such acceleration is not rescinded or annulled, such failure to pay is
not cured, or such indebtedness shall not have been discharged, within
15 days after written notice thereof to the Issuer by either the
Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series; or
(g) any other Event of Default provided in the
supplemental indenture under which such series of Securities is issued
or in the form of Security for such series;
provided, however, that, except as otherwise may be established for a series of
Senior Debt Securities, the occurrence of any of the events described in the
foregoing clause (c) or (g) shall not constitute an Event of Default if such
occurrence is the result of changes in generally accepted accounting principles
as recognized by the American Institute of Certified Public Accountants at the
date as of which this Indenture is executed and a certificate to such effect is
delivered to the Trustee by the Issuer's independent public accountants.
If an Event of Default described in clauses (a), (b), (c) or
(g) (if the Event of Default under clause (c) or (g), as the case may be, is
with respect to less than all series of Securities then Outstanding) occurs and
is continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding
hereunder (voting as a single class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (c) or (g) (if the Event of Default under
clause (c) or (g), as the case may be, is with respect to all series of
Securities then Outstanding), (d) or (e) occurs and is continuing, then and in
each and every such case, unless the principal of all the Securities shall have
already become due
24
<PAGE> 33
and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion of the principal
as may be specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of each such
series (or of all the Securities, as the case may be) which shall have become
due otherwise than by acceleration (with interest upon such principal and, to
the extent that payment of such interest is enforceable under applicable law,
on overdue installments of interest, at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of each such series (or at the respective rates of
interest or Yields to Maturity of all the Securities, as the case may be) to
the date of such payment or deposit) and such amount as shall be sufficient to
cover reasonable compensation to the Trustee and each predecessor Trustee, its
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and if any and all Events of Default under
the Indenture, other than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein--then and in every such case the Holders
of a majority in aggregate principal amount of all the Securities of each such
series, or of all the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to each such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and payable as
a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
SECTION 4.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt. The Issuer covenants that (a) in case default shall be
made in the payment of any instalment of interest on any of the Securities of
any series when such interest shall have become due and payable, and such
default shall have continued for a period of 30 days or (b) in case default
shall be made in the payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and payable,
whether upon maturity of the Securities of such series or upon any redemption
or by declaration or otherwise -- then upon demand of the Trustee, the Issuer
will pay to the Trustee for the benefit of the Holders of the Securities
25
<PAGE> 34
of such series the whole amount that then shall have become due and payable on
all Securities of such series, and such Coupons, for principal or interest, as
the case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the registered
Holders, whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any 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 proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings
or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of any series
are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such
other obligor,
26
<PAGE> 35
(b) unless prohibited by applicable law and regulations,
to vote on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or Person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized
by each of the Securityholders to make payments to the Trustee, and,
in the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons appertaining
to such Securities, may be enforced by the Trustee without the possession of
any of the Securities of such series or Coupons appertaining to such Securities
or the production thereof on any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and compensation of the
Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities or Coupons
appertaining to such Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
SECTION 4.3 Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities and Coupons
appertaining to such Securities in respect of which monies have been collected
and stamping (or otherwise noting) thereon the payment, or issuing Securities
of such series in reduced principal amounts in exchange for the presented
Securities of like series if only partially paid, or upon surrender thereof if
fully paid:
27
<PAGE> 36
FIRST: To the payment of costs and expenses applicable to
such series in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their respective
agents and attorneys and of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made ratably to
the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and unpaid
upon all the Securities of such series for principal and interest, with
interest upon the overdue principal, and (to the extent that such interest has
been collected by the Trustee) upon overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series; and in
case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities of such series, then to the payment of such
principal and interest or Yield to Maturity, without preference or priority of
principal over interest or Yield to Maturity, or of interest or Yield to
Maturity over principal, or of any instalment of interest over any other
instalment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal and accrued
and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other Person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, 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 this 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.
SECTION 4.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 4.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon appertaining thereto
shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian
28
<PAGE> 37
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of each
affected series then Outstanding (treated as a single class) shall have made
written request upon the Trustee to institute such action or proceedings in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 4.9;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security or Coupon with every other taker and Holder and
the Trustee, that no one or more Holders of Securities of any series or Coupons
appertaining to such Securities shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities or Coupons
appertaining to such Securities, or to obtain or seek to obtain priority over
or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series and
Coupons appertaining to such Securities. For the protection and enforcement of
the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
SECTION 4.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in this Indenture
and any provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on such Security or
Coupon on or after the respective due dates expressed or provided for in such
Security or Coupon, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 4.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section 4.6 and the last
paragraph of Section 2.9, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or Coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 4.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 4.9 Control by Holders of Securities. The
Holders of a majority in aggregate principal amount of the Securities of each
series affected (with all such series voting as a single class) at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions
29
<PAGE> 38
of Section 5.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith by its board of directors, the executive committee, or a trust
committee of directors or Responsible Officers of the Trustee shall determine
that the action or proceedings so directed would involve the Trustee in
personal liability or if the Trustee in good faith shall so determine that the
actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 5.1) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities as provided in Section 4.1, the
Holders of a majority in aggregate principal amount of the Securities of all
series at the time Outstanding with respect to which an Event of Default shall
have occurred and be continuing (voting as a single class) may on behalf of the
Holders of all such Securities waive any past default or Event of Default
described in Section 4.1 and its consequences, except a default (1) in the
payment of the principal of or any premium or interest on any Security of such
series, or (2) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Security
affected. In the case of any such waiver, the Issuer, the Trustee and the
Holders of all such Securities shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of such series
in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act of 1939, unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "defaults" for the
purpose of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the
payment of any sinking fund instalment on such 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 or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
30
<PAGE> 39
SECTION 4.12 Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder
of any Security or Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Securityholder or group of Securityholders of any series holding in the
aggregate more than 10% in aggregate principal amount of the Securities of such
series, or, in the case of any suit relating to or arising under clause (c) or
(g) of Section 4.1 (if the suit relates to Securities of more than one but less
than all series), l0% in aggregate principal amount of Securities then
Outstanding and affected thereby, or in the case of any suit relating to or
arising under clause (c) or (g) (if the suit under clause (c) or (g) relates to
all the Securities then Outstanding), (d) or (e) of Section 4.1, 10% in
aggregate principal amount of all Securities then Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security or any date fixed for redemption.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of Securities
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee
with respect to the Securities of any series shall be
determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
31
<PAGE> 40
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Indenture;
(b) 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; and
(c) 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 pursuant to Section 4.9 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.
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 shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and
subject to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 Certain Rights of the Trustee. In
furtherance of and subject to the Trust Indenture Act of 1939, subject to
Section 5.1:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate
or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, Coupon,
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 Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written
advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee
32
<PAGE> 41
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default,
the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, Coupon, Security, or other
paper or document unless requested in writing so to do by the Holders
of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided that, if
the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against
such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes
no representation as to the validity or sufficiency of this Indenture or of the
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. The Trustee or any agent of the Issuer or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Trustee or such agent.
SECTION 5.5 Moneys Held by Trustee. Subject to the
provisions of Section 9.4 hereof, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Neither the Trustee nor
any agent of the Issuer or the Trustee shall be under any liability for
interest on any moneys received by it hereunder.
SECTION 5.6 Compensation and Indemnification of Trustee
and Its Prior Claim. The Issuer 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
33
<PAGE> 42
of a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on
behalf of it 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 agents and other persons not regularly in its employ) except
any such expense, disbursement or advance as may result from its negligence or
bad faith. The Issuer also covenants to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the
premises. The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness
shall be a senior claim to that of the Securities 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 Securities or Coupons, and the Securities
are hereby subordinated to such senior claim.
SECTION 5.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 5.1 and 5.2, whenever in the
administration of the trusts 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 any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this Indenture upon
the faith thereof.
SECTION 5.8 Persons Eligible for Appointment as Trustee.
The Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State or the District of Columbia having a combined capital
and surplus of at least $5,000,000, and which is eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of a Federal, State or District of Columbia 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.
SECTION 5.9 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and (i) if any
Unregistered Securities of a series affected are then Outstanding, by giving
notice of such resignation to the Holders thereof, by publication at least once
in an Authorized Newspaper in the Borough of Manhattan, The City of New York,
and at least once in an Authorized Newspaper in London (and, if required by
Section 3.7, at least once in an Authorized Newspaper in Luxembourg), (ii) if
any Unregistered Securities of a series affected are then Outstanding, by
mailing notice of such resignation to the Holders thereof who have filed their
names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act of 1939 at such addresses as were so furnished to the Trustee and
(iii) by mailing notice of such resignation to the Holders of then Outstanding
Registered Securities of each series affected at their addresses as they shall
appear on
34
<PAGE> 43
the registry books. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument in duplicate, executed by authority of
the Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any series 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, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 4.12,
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.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act of
1939 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who
has been a bona fide Holder of a Security or Securities of
such series for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written
request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting
with respect to any series of Securities, or shall be adjudged
a bankrupt or insolvent, or a receiver or liquidator 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 Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series 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 with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal
amount of the Securities of each series at the time Outstanding may at
any time remove the Trustee with respect to Securities of such series
and appoint a successor trustee with respect to the Securities of such
series by delivering to the Trustee so removed, to the successor
trustee so appointed and to the Issuer the evidence provided for in
Section 6.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with
respect to any series and any appointment of a successor trustee with
respect to such series pursuant to any of the provisions of
35
<PAGE> 44
this Section 5.9 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 5.10.
SECTION 5.10 Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in Section 5.9 shall
execute and deliver to the Issuer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee with respect to all or any applicable series shall
become effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
9.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 5.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor
trustee with respect to the Securities of any series as to which the
predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such trustees
co-trustees of the same trust and that each such trustee shall be trustee of a
trust or trusts under separate indentures.
Upon acceptance of appointment by any successor trustee as
provided in this Section 5.10, the Issuer shall give notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once
in an Authorized Newspaper in London (and, if required by Section 3.7, at least
once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof
who have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act of 1939, by mailing such notice to such
Holders at such addresses as were so furnished to the Trustee (and the Trustee
shall make such information available to the Issuer for such purpose) and (c)
to the Holders of Registered Securities of each series affected, by mailing
such notice to such Holders at their addresses as they shall appear on the
registry books. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 5.9.
If the Issuer fails to give such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or
Succession to Business of Trustee. 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
36
<PAGE> 45
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of
Section 5.8, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time
any of the Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor trustee or to authenticate
Securities of any series in the name of any predecessor trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 5.12 Disqualification; Conflicting Interests. If
the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act of 1939, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act of 1939 and this Indenture.
SECTION 5.13 Preferential Collection of Claims Against the
Issuer. The Trustee shall comply with Section 311(a) of the Trust Indenture
Act of 1939, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act of 1939. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act of 1939 to the
extent included therein.
SECTION 5.14 Appointment of Authenticating Agent. As long
as any Securities of a series remain Outstanding, the Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an
authenticating agent (the "Authenticating Agent") which shall be authorized to
act on behalf of the Trustee to authenticate Securities, including Securities
issued upon exchange, registration of transfer, partial redemption or pursuant
to Section 2.9. Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee. Whenever reference is made in this Indenture to the authentication
and delivery of Securities of any series by the Trustee or to the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
for such series and a certificate of authentication executed on behalf of the
Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $5,000,000 (determined as provided in Section 5.8 with respect to the
Trustee) and subject to supervision or examination by Federal or State
authority.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent with respect to all series
37
<PAGE> 46
of Securities for which it served as Authenticating Agent without the execution
or filing of any paper or any further act on the part of the Trustee or such
Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall
cease to be eligible shall, resign by giving written notice of resignation to
the Trustee and to the Issuer. The Trustee may at any time terminate the
Agency of any Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 5.12 with respect to one or more series of
Securities, the Trustee may upon receipt of an Issuer Order appoint a successor
Authenticating Agent and the Issuer shall provide notice of such appointment to
all Holders of Securities of such series in the manner and to the extent
provided in Section 5.10. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect as
if originally named as Authenticating Agent. The Issuer agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation.
The Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
Sections 5.2, 5.3, 5.4, 5.6, 5.8, 5.12 and 6.3 shall be
applicable to any Authenticating Agent.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Sections 5.1 and 5.2) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and of
Holding of Securities. Subject to Sections 5.1 and 5.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in the
following manner:
(a) The fact and date of the execution by any Holder of
any instrument may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the Person executing
such instruments acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such
notary or other such officer. Where such execution is by or on behalf
of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of
the Person executing the same. The fact of the holding by any Holder
of an Unregistered Security of any series, and the identifying number
of such Security and the date of his holding the same, may be proved
by the production of such Security or by a certificate executed by
38
<PAGE> 47
any trust company, bank, banker or recognized securities dealer
wherever situated satisfactory to the Trustee, if such certificate
shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a
Security of such series bearing a specified identifying number was
deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the Person named in such certificate.
Any such certificate may be issued in respect of one or more
Unregistered Securities of one or more series specified therein. The
holding by the Person named in any such certificate of any
Unregistered Securities of any series specified therein shall be
presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding
(1) another certificate bearing a later date issued in respect of the
same Securities shall be produced, or (2) the Security of such series
specified in such certificate shall be produced by some other Person,
or (3) the Security of such series specified in such certificate shall
have ceased to be Outstanding. The fact and date of the execution of
any such instrument and the amount and numbers of Securities of any
series held by the Person so executing such instrument and the amount
and numbers of any Security or Securities for such series may also be
proven in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee for such series or in any other manner
which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership
of such Securities shall be proved by the Security register or by a
certificate of the Security registrar.
SECTION 6.3 Holders to be Treated as Owners. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and the Holder of
any Coupon as the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all other
purposes and neither the Issuer, the Trustee, nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary. All such payments
so made to any such Person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Unregistered Security or Coupon.
SECTION 6.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to
which such determination is being made or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made 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 Securities which the Trustee knows are
so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee
39
<PAGE> 48
is not the Issuer or any other obligor upon the Securities or any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice.
Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 5.1 and 5.2, the Trustee shall
be entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 6.1, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action, any Holder
of a Security the serial number of which is shown by the evidence to be
included among the serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such
action so far as concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in regard thereto
is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all
series, as the case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Issuer, the Trustee and the
Holders of all the Securities affected by such action.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Officers' Certificate), and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to
the Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Issuer pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and
the Trustee shall consider to be for the protection of the Holders of
Securities or Coupons, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein
40
<PAGE> 49
set forth; provided, 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 an
Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of
a majority in aggregate principal amount of the Securities of such
series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make any other provisions as
the Issuer may deem necessary or desirable, provided that no such
action shall materially adversely affect the interests of the Holders
of the Securities or Coupons;
(e) to establish the form or terms of Securities of any
series or of the Coupons appertaining to such Securities as permitted
by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 5.10.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Six) of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution of
its Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order),
and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Securities of each such series or of the Coupons
appertaining to such Securities; provided, that no such supplemental indenture
shall (a) extend the final maturity of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof, or make the
principal thereof (including any amount in respect of original issue discount)
or interest thereon payable in any coin or currency other than that provided in
the Securities and Coupons or in accordance with the terms thereof, or reduce
the amount of the principal of an Original Issue Discount Security that would
be due and payable upon an acceleration of the maturity thereof pursuant to
Section 4.1 or the amount thereof
41
<PAGE> 50
provable in bankruptcy pursuant to Section 4.2, or alter the provisions of
Section 10.11 or 10.12 or impair or affect the right of any Securityholder to
institute suit for the payment thereof or, if the Securities provide therefor,
any right of repayment at the option of the Securityholder, in each case without
the consent of the Holder of each Security so affected, or (b) reduce the
aforesaid percentage of Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order) certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section 6.1,
the Trustee shall join with the Issuer 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
Securityholders 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 thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the Security register, (ii) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act of 1939, by mailing a notice thereof by first-class
mail to such Holders at such addresses as were so furnished to the Trustee and
(iii) if any Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof at
least once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York and at least once in an Authorized Newspaper in London (and, if
required by Section 3.7, at least once in an Authorized Newspaper in
Luxembourg), and in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series
42
<PAGE> 51
affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 7.4 Documents to Be Given to Trustee. The
Trustee, subject to the provisions of Sections 5.1 and 5.2, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Seven complies with
the applicable provisions of this Indenture.
SECTION 7.5 Notation on Securities in Respect of
Supplemental Indentures. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as to
any action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Issuer, authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer May Consolidate, etc., Only on Certain
Terms. The Issuer shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into
which the Issuer is merged or the Person which acquires by conveyance,
transfer or lease the properties and assets of the Issuer
substantially as an entirety shall expressly assume, by a supplemental
indenture hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and interest on all the Securities and Coupons, if any,
according to their tenor, and the performance of every covenant of
this Indenture on the part of the Issuer to be performed or observed;
(b) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall have happened
and be continuing;
(c) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with; and
(d) the Issuer has delivered to the Trustee such other
documents as the Trustee may, in its discretion, reasonably require.
43
<PAGE> 52
SECTION 8.2 Successor Corporation Substituted. In case of
any such consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor Person, such successor Person shall succeed to and
be substituted for the Issuer, with the same effect as if it had been named
herein. Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Issuer prior to such succession any or all of
the Securities issuable hereunder which together with any Coupons appertaining
thereto theretofore shall not have been signed by the Issuer and delivered to
the Trustee; and, upon the order of such successor Person, instead of the
Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities together with any Coupons appertaining thereto which previously shall
have been signed and delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities which such successor Person thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All of the
Securities so issued together with any Coupons appertaining thereto shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phrasing and form (but not in substance) may be made
in the Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor Person which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. (A)
If at any time (a) the Issuer shall have paid or caused to be paid the
principal of and interest on all the Securities of any series Outstanding
hereunder and all unmatured Coupons appertaining thereto (other than Securities
of such series and Coupons appertaining thereto which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 2.9) as
and when the same shall have become due and payable, or (b) the Issuer shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Securities of such series and Coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.9) or (c) in the case of any series of Securities
where the exact or maximum amount (including the currency of payment) of
principal of and interest due on which can be determined at the time of making
the deposit referred to in clause (ii) below, (i) all the Securities of such
series and all unmatured Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any paying agent to
the Issuer in accordance with Section 9.4) or, in the case of any series of
Securities the payments on which may only be made in Dollars, direct
obligations of the United States of America,
44
<PAGE> 53
backed by its full faith and credit ("United States Government Obligations"),
maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash, or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
(A) the principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due and
payable and (B) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and
the Securities of such series; and if, in any such case, the Issuer shall also
pay or cause to be paid all other sums payable hereunder by the Issuer with
respect to the Securities of such series, then this Indenture with respect to
the Securities of such series shall cease to be of further effect (except as to
(i) rights of registration of transfer and exchange of Securities of such
series and of Coupons appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them, and
(vi) the obligations of the Issuer under Section 3.2) and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture
with respect to the Securities of such series; provided, that the rights of
Holders of the Securities and Coupons to receive amounts in respect of
principal of and interest on the Securities and Coupons held by them shall not
be delayed longer than required by then-applicable mandatory rules or policies
of any securities exchange upon which the Securities are listed. The Issuer
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided in a Board
Resolution, Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 2.3. In addition to discharge of the Indenture pursuant to
the next preceding paragraph, in the case of any series of Securities the exact
or maximum amounts (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the deposit
referred to in clause (a) below, the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such a series and
the Coupons appertaining thereto on the 91st day after the date of the deposit
referred to in subparagraph (a) below, and the provisions of this Indenture
with respect to the Securities of such series and Coupons appertaining thereto
shall no longer be in effect (except as to (i) rights of registration of
transfer and exchange of Securities of such series and of Coupons appertaining
thereto and the Issuer's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities or
Coupons, (iii) rights of Holders of Securities and Coupons appertaining thereto
to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee hereunder, (v)
the rights of the Holders of Securities of such series and Coupons appertaining
thereto as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of the
Issuer under Section 3.2) and the Trustee, at the expense of the Issuer, shall
at the Issuer's request, execute proper instruments acknowledging the same, if
45
<PAGE> 54
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities
of such series and Coupons appertaining thereto (i) cash in an amount,
or (ii) in the case of any series of Securities the payments on which
may only be made in Dollars, United States Government Obligations,
maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and
interest on all Securities of such series and Coupons appertaining
thereto on each date that such principal or interest is due and
payable and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms
of the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation
of, or constitute a default under, any agreement or instrument to
which the Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such
series and Coupons appertaining thereto will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times, as would have been the case if such deposit, defeasance and
discharge had not occurred;
(d) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with;
(e) no Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
the Securities shall have occurred and be continuing on the date of
such deposit or, insofar as subsections 4.1(d) and (e) are concerned,
at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period); and
(f) Such covenant defeasance contemplated by this
provision shall not cause any Securities then listed on any registered
national securities exchange under the Securities Exchange Act of
1934, as amended, to be delisted.
(C) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided in a Board
Resolution, Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 2.3. In the case of any series of Securities the exact or
maximum amounts (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the deposit
referred to in clause (a) below, the Issuer shall be released from its
obligations under Sections 3.6 and 8.1 with respect to the Securities of any
such series, and any Coupons appertaining thereto, Outstanding on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that, with
respect to the Outstanding
46
<PAGE> 55
Securities of any series, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in such
Sections, whether directly or indirectly by reason of any reference elsewhere
herein to such Sections or by reason of any reference in such Sections to any
other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 4.1, but the remainder
of this Indenture and such Securities and Coupons shall be unaffected thereby.
The following shall be the conditions to application of this subsection C of
this Section 9.1:
(a) The Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities
of such series and Coupons appertaining thereto, (i) cash in an
amount, or (ii) in the case of any series of Securities the payments
on which may only be made in Dollars, United States Government
Obligations maturing as to principal and interest at such times and in
such amounts as will insure the availability of cash or (iii) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal and interest is
due and payable and (B) any mandatory sinking fund payments on the day
on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series.
(b) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
the Securities shall have occurred and be continuing on the date of
such deposit or, insofar as subsections 4.1(d) and (e) are concerned,
at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(c) Such covenant defeasance shall not cause the Trustee
to have a conflicting interest as described in Section 310 of the
Trust Indenture Act of 1939 with respect to any securities of the
Issuer.
(d) Such covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Issuer is a party or by
which it is bound.
(e) Such covenant defeasance shall not cause any
Securities then listed on any registered national securities exchange
under the Securities Exchange Act of 1934, as amended, to be delisted.
(f) The Issuer shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel to the effect that the
Holders of the Securities of such series and Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance
had not occurred.
47
<PAGE> 56
(g) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the covenant defeasance
contemplated by this provision have been complied with.
SECTION 9.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 9.4, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 9.1 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of or interest on
any Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Securities
of such series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being required
to make any such repayment with respect to moneys deposited with it for any
payment (a) in respect of Registered Securities of any series, shall at the
expense of the Issuer, mail by first-class mail to Holders of such Securities
at their addresses as they shall appear on the Security register, and (b) in
respect of Unregistered Securities of any series, shall at the expense of the
Issuer cause to be published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and once in an Authorized Newspaper in London
(and if required by Section 3.7, once in an Authorized Newspaper in
Luxembourg), notice, that such moneys remain and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
SECTION 9.5 Indemnity for United States Government
Obligations. The Issuer shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the United States Government
Obligations deposited pursuant to Section 9.1 or the principal or interest
received in respect of such obligations.
SECTION 9.6 Excess Funds. The Trustee shall deliver to
the Issuer from time to time upon Issuer Order any United States Government
Obligations or money held by it as provided in Section 9.1 which, as expressed
in the opinion of a nationally recognized firm of independent public
accountants
48
<PAGE> 57
expressed in a written certification thereof delivered to the Trustee (which
may include the applicable such opinion delivered to the Trustee pursuant to
Section 9.1), are then in excess of the amount thereof which then would have
been required to be deposited for the purpose for which such obligations or
money were deposited or received.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
SECTION 10.2 Provisions of Indenture for the Sole Benefit
of Parties and Holders of Securities and Coupons. Nothing in this Indenture,
in the Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any Person, other than the parties hereto
and their successors and the Holders of the Securities or Coupons, if any, any
legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities or Coupons, if any.
SECTION 10.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. 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 Securities or Coupons to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is filed by the Issuer with the Trustee) to Illinova Corporation, 500
South 27th Street, Decatur, Illinois 62525, Attention: _________. Any notice,
direction, request or demand by the Issuer or any Holder of Securities or
Coupons to or upon the Trustee shall be deemed to have been sufficiently given
or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Trustee is filed by the Trustee with the Issuer) to The First National Bank of
Chicago, c/o First Chicago Trust Company of New York, 14 Wall Street, 8th
Floor, Window 2, New York, NY 10005, Attn: Corporate Trust Administration.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at his last address as it
appears in the Security register. In any case where notice to such Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to
49
<PAGE> 58
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.5 Officers' Certificates and Opinions of
Counsel; Statements to Be Contained Therein. Upon any application or demand by
the Issuer to the Trustee to take any action under any of the provisions of
this Indenture, the Issuer 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.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an opinion as to whether or not such covenant or condition has
been complied with and (d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
50
<PAGE> 59
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest on or principal of the
Securities of any series or any Coupons appertaining thereto or the date fixed
for redemption or repayment of any such Security or Coupon shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption
or repayment, and no interest shall accrue for the period after such date.
SECTION 10.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture by operation of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939 (an "incorporated provision"), such incorporated
provision shall control.
SECTION 10.8 New York Law to Govern. This Indenture and
each Security and Coupon shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of such State, except as may otherwise be required by mandatory
provisions of law.
SECTION 10.9 Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 10.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officers' Certificate delivered pursuant to
Section 2.3 of this Indenture with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at the
time Outstanding and, at such time, there are Outstanding Securities of any
series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such series which
shall be deemed to be Outstanding for the purpose of taking such action shall
be that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate as of the date of initial issuance of such Securities. For
purposes of this Section 10.11, Market Exchange Rate as of any date shall mean
the noon Dollar buying rate in New York City for cable transfers of that
currency on such date as published by the Federal Reserve Bank of New York;
provided, however, in the case of ECUs, Market Exchange Rate shall mean the
rate of exchange determined by the Commission of the European Communities (or
any successor thereto) as published in the Official Journal of the European
Communities (such publication or any successor publication, the "Journal"). If
such Market Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York or, in the
case of ECUs, the rate of exchange as published in the Journal, as of the most
recent available date, or quotations or, in the case of ECUs, rates of exchange
from one or more major banks in The City of New York or in the country of issue
of the currency in question, which for purposes of the ECU shall be Brussels,
Belgium, or such other quotations or, in the case of ECU, rates of exchange as
the Trustee shall deem appropriate. The provisions
51
<PAGE> 60
of this paragraph shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other than Dollars
in connection with any action taken by Holders of Securities pursuant to the
terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 10.12 Judgment Currency. The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which a final unappealable judgment is entered, unless
such day is not a New York Banking Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which a final unappealable judgment is
entered, and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance
with subsection (a)), in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in the
Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable
and (iii) shall not be affected by judgment being obtained for any other sum
due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
2.3 for Securities of such series.
SECTION 11.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such series at their last addresses as they
shall appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act of 1939, shall be given by mailing notice
52
<PAGE> 61
of such redemption, by first class mail, postage prepaid, at least 30 days and
not more than 60 prior to the date fixed for redemption, to such Holders at
such addresses as were so furnished to the Trustee (and, in the case of any
such notice given by the Issuer, the Trustee shall make such information
available to the Issuer for such purpose). Notice of redemption to all other
Holders of Unregistered Securities shall be published in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and in an
Authorized Newspaper in London (and, if required by Section 3.7, in an
Authorized Newspaper in Luxembourg), in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 nor
more than 60 days prior to the date fixed for redemption. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to
give notice by mail, or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security of
such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the numbers of
the certificate for such Security being redeemed, the place or places of
payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with Coupons attached thereto, of all
Coupons appertaining thereto maturing after the date fixed for redemption, that
such redemption is pursuant to the mandatory or optional sinking fund, or both,
if such be the case, that interest accrued to the date fixed for redemption
will be paid as specified in such notice and that on and after said date
interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.4) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 70 days prior to
the date fixed for redemption an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction on such
redemption or subject to compliance with a condition precedent, the Issuer
shall deliver to the Trustee, prior to the giving of any notice of redemption
to Holders pursuant to this Section, an Officers' Certificate stating that such
restriction or condition precedent has been complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The
Trustee shall promptly notify the Issuer in writing of the Securities of such
series selected for redemption and, in the case of any Securities of such
series selected
53
<PAGE> 62
for partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.3 Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the Securities or
portions of Securities 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 on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in Sections 5.5 and
9.4, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3
and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, the surrender of such missing Coupon or Coupons
may be waived by the Issuer and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be excluded from
eligibility for selection for redemption if they are identified by registration
and certificate number in an Officers' Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or hypothecated
by either (a) the Issuer or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer.
54
<PAGE> 63
SECTION 11.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer may
at its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an
Officers' Certificate (which need not contain the statements required by
Section 10.5) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that none
of the Securities of such series has theretofore been so credited, (c) stating
that no defaults in the payment of interest or Events of Default with respect
to such series have occurred (which have not been waived or cured) and are
continuing and (d) stating whether or not the Issuer intends to exercise its
right to make an optional sinking fund payment with respect to such series and,
if so, specifying the amount of such optional sinking fund payment which the
Issuer intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee
with such Officers' Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officers' Certificate shall be irrevocable
and upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of
the Issuer, on or before any such 60th day, to deliver such Officers'
Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU)
or a lesser sum in Dollars (or the equivalent thereof in any Foreign Currency
or ECU) if the Issuer shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Issuer makes no such
55
<PAGE> 64
request then it shall be carried over until a sum in excess of $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) is available. The Trustee
shall select, in the manner provided in Section 11.2, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be, and shall (if requested in
writing by the Issuer) inform the Issuer of the serial numbers of the
Securities of such series (or portions thereof) so selected. Securities shall
be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers' Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment
date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such Officers' Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing) shall cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 11.2 (and with the effect provided in Section 11.3) for the
redemption of Securities of such series in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund
moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series shall be
applied, together with other moneys, if necessary, sufficient for the purpose,
to the payment of the principal of, and interest on, the Securities of such
series at maturity.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article Four and held for
the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 4.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE TWELVE
MEETINGS OF HOLDERS OF SECURITIES
SECTION 12.1 Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any or all series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders or
Securities of such series.
56
<PAGE> 65
SECTION 12.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of any series for any purpose specified in
Section 12.1, to be held at such time and at such place as the Trustee
shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 10.4, not less than
20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Issuer, pursuant to a Board
Resolution, or the Holders of at least 10 percent in aggregate
principal amount of the Outstanding Securities of any series shall
have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 12.1,
by written request setting forth in reasonable detail the action
proposed to be taken at the meeting and if the Trustee shall not have
made the first publication of the notice of such meeting within 20
days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Issuer or
the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place
for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in Subsection (a) of this Section.
SECTION 12.3 Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Issuer and its
counsel.
SECTION 12.4 Quorum; Action. The Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of a
series shall constitute a quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken at such meeting
with respect to a consent or waiver which this Indenture expressly provides may
be given by the Holders of a specified percentage, which is greater than a
majority in aggregate principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in aggregate
principal amount of the Outstanding Securities of such series shall constitute
a quorum. In the absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the request of the
Holders of Securities of such series, be dissolved. In any other case, the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided
in Section 12.2(a), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the aggregate principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
57
<PAGE> 66
Except as limited by the proviso to Section 7.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
7.2, any resolution with respect to any consent or waiver which this Indenture
expressly provides may be given by the Holders of a specified percentage, which
is greater than a majority in aggregate principal amount of the Outstanding
Securities of the series may be adopted at a meeting or an adjourned meeting
duly convened and at which a quorum is present as aforesaid only by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series; and provided,
further, that, except as limited by the proviso to Section 7.2, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in aggregate principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in aggregate principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of
Holder of Securities of any series duly held in accordance with this Section
shall be binding on all of the Holders of Securities of a series and the
related coupons, whether or not present or represented at the meeting.
SECTION 12.5 Determination of Voting; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of Securities of a series in
regard to proof of the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 6.1 and the appointment of any proxy shall be
proved in the manner specified in Section 6.1 or by having the
signature of the person executing the proxy witnessed or guaranteed by
any trust company, bank or banker authorized by Section 6.1 to certify
to the holding of Bearer Securities. Such regulations may provide
that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in
Section 6.1 or other proof.
(b) Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Issuer or by Holders of Securities as provided in
Section 12.2(b), in which case the Issuer or the Holders of Securities
of the series calling the meeting, as the case may be, shall appoint a
temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities
of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series and each proxy shall be entitled to one vote for each $1,000
principal of the Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to
58
<PAGE> 67
be not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security of such series or as a
proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 12.2 at which a quorum is present may
be adjourned from time to time by Persons entitled to vote a majority
in aggregate principal amount of the Outstanding Securities of such
series represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 12.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make the file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 12.2 and, if
applicable, Section 12.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuer, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
--------------------------------
59
<PAGE> 68
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of __________, 1996.
ILLINOVA CORPORATION
By:
-----------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By
----------------------------------
Assistant Secretary
TRUSTEE
By:
-----------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By
----------------------------------
60
<PAGE> 69
STATE OF ILLINOIS )
) ss.:
COUNTY OF, )
----------------
On this ____ of _________, 1996 before me personally came ___________, to me
personally known, who, being by me duly sworn, did depose and say that he is
__________ of Illinova Corporation, one of the corporations described in and
which executed the above instrument; that he knows 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 he signed his name thereto by like authority.
[NOTARIAL SEAL]
----------------------------------------
Notary Public
61
<PAGE> 1
[SCHIFF HARDIN & WAITE LETTERHEAD]
EXHIBIT 5
---------
Robert J. Regan
(312) 258-5606
December 12, 1996
Illinova Corporation
500 S. 27th Street
Decatur, IL 62525-1805
Ladies and Gentlemen:
We are acting as counsel to Illinova Corporation, an Illinois corporation
(the "Company"), in connection with its filing of a Registration Statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "1933 Act"), relating to the registration of $300,000,000
aggregate principal amount of the Company's debt securities (the "Debt
Securities") to be issued from time to time pursuant to Rule 415 under the 1933
Act.
As counsel to the Company, we have examined (i) the Registration Statement
and the exhibits thereto, (ii) the Company's Articles of Incorporation and
By-Laws, each as amended to date, (iii) a form of Indenture (the "Indenture")
between the Company and The First National Bank of Chicago, as Trustee, and
(iv) such certificates, documents and records of the Company and such matters
of law as we deemed necessary to enable us to render this opinion. We also
have assumed the continued exemption of the contemplated transactions from the
requirements of the Public Utility Holding Company Act of 1935, as amended, the
genuineness of all signatures, the authenticity of all documents submitted to
us as original counterparts, and the conformity to the originals of all
documents submitted to us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly organized and existing under and
by virtue of the laws of the State of Illinois.
2. The Company has corporate power and authority to execute and deliver
the Indenture and to issue and sell the Debt Securities.
<PAGE> 2
Illinova Corporation
December 12, 1996
Page Two
3. The Debt Securities will be legal, valid and binding obligations of the
Company enforceable in accordance with their terms and entitled to the benefits
of the Indenture, except to the extent enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), when: (a) the Registration Statement, as it may be amended,
shall have become effective under the 1933 Act, no stop order shall have been
issued by the Securities and Exchange Commission relating thereto, and any
applicable state securities or Blue Sky laws shall have been complied with; (b)
the Company's Board of Directors, or a duly authorized committee thereof, shall
have taken such action as may be necessary to authorize the issuance by the
Company of the Debt Securities on the terms set forth in or contemplated by the
Registration Statement, as it may be amended, and the exhibits thereto; (c) the
Indenture shall have been qualified under the Trust Indenture Act of 1939, as
amended, the Indenture and any supplemental indentures thereto shall have been
appropriately executed and delivered by the Company and the Trustee, the terms
of the Debt Securities shall have been duly established, and the Debt
Securities shall have been issued and authenticated in accordance with the
applicable provisions of the Indenture and any supplemental indentures thereto
and all necessary corporate authorizations; and (d) the Company shall have
received the consideration payable for the Debt Securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus.
We are members of the Illinois bar and limit in all respects our opinion
set forth above to the laws of the State of Illinois and Federal law.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ ROBERT J. REGAN
-----------------------
Robert J. Regan
RJR:ck
<PAGE> 1
EXHIBIT 12
ILLINOVA CORPORATION
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SUPPLEMENTAL** 12 MONTHS
---------------------------------------------------------------------------------------
ENDED
1991 1992 1993 1993 1994 1995 SEP-96
-------- -------- -------- -------------- -------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings Available for
Fixed Charges:
Net Income (Loss).......... $ 78,378 $ 93,234 ($81,874) ($81,874) $151,786 $151,601 $173,171
Add:
Income Taxes:
Current............. 29,369 22,930 25,260 25,260 58,354 98,578 194,950
Deferred -- Net..... 45,990 63,739 82,057 82,057 71,177 34,137 (54,158)
Allocated income
taxes............... (1,348) (6,632) (12,599) (12,599) (8,285) (11,851) (13,354)
Investment tax credit
-- deferred......... (11) (519) (782) (782) (11,331) (6,894) (6,894)
Income tax effect of
disallowed costs.... -- -- (70,638) (70,638) -- -- --
Interest on long-term
debt................ 176,179 160,795 154,110 154,110 135,115 125,581 114,414
Amortization of debt
expense and premium-
net, and other
interest charges.... 9,004 12,195 17,007 17,007 15,826 29,558 29,547
One-third of all
rentals (Estimated
to be representative
of the interest
component).......... 4,996 5,117 5,992 5,992 5,847 5,221 4,711
Interest on in-core
fuel................ 8,862 8,278 6,174 6,174 7,185 6,716 5,624
Disallowed Clinton
plant costs......... -- -- -- 270,956 -- -- --
-------- -------- -------- -------- -------- -------- --------
Earnings (loss) available
for fixed charges........ $351,419 $359,137 $124,707 $395,663 $425,674 $432,647 $448,011
======== ======== ======== ======== ======== ======== ========
Fixed charges:
Interest on long-term
debt................... $176,179 $160,795 $154,110 $154,110 $135,115 $125,581 $114,414
Amortization of debt
expense and
premium-net, and other
interest charges....... 25,553 25,785 27,619 27,619 25,381 38,147 36,556
One-third of all rentals
(Estimated to be
representative of the
interest component).... 4,996 5,117 5,992 5,992 5,847 5,221 4,711
-------- -------- -------- -------- -------- -------- --------
Total Fixed Charges........ $206,728 $191,697 $187,721 $187,721 $166,343 $168,949 $155,681
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed
charges.................. 1.70 1.87 0.66* 2.11 2.56 2.56 2.88
======== ======== ======== ======== ======== ======== ========
</TABLE>
- -------------------------
* Earnings are inadequate to cover fixed charges. Additional earnings
(thousands) of $63,014 for 1993, are required to attain a one-to-one ratio of
Earnings to Fixed Charges.
** Supplemental ratio of earnings to fixed charges presented to exclude
nonrecurring item -- Disallowed Clinton plant costs.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated February 2, 1996, which appears on page A-10 of the 1995 Annual Report to
Shareholders of Illinova Corporation in the appendix to the Illinova
Corporation Proxy Statement, which is incorporated by reference in Illinova
Corporation's Annual Report on Form 10-K for the year ended December 31, 1995.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
PRICE WATERHOUSE LLP
St. Louis, Missouri
December 13, 1996
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED
TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
_________________________________
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
___________________________________
ILLINOVA CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
ILLINOIS 37-1319890
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
500 SOUTH 27TH STREET
DECATUR, ILLINOIS 62525
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 3rd day of December, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
* EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK
OF CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA INC. FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 3, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Illinova
Corporation and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S><C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400 <-
DOLLAR AMOUNT IN ------------ ------
THOUSANDS RCFD BIL MIL THOU
---------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . . 0081 3,572,641 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities (from Schedule RC-B, column A). . . . 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)....... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell . . . . . . . . . 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . . RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . 2125 18,745,928 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding . . . . 2155 632,259 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . 2143 156,715 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . 2170 49,335,206 12.
</TABLE>
__________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S><C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
---------------- ------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1). . . . . . . . . . . . . . . . RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . . . RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . . RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase . . . . . RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . RCON 2840 104,546 15.a.
b. Trading Liabilities............................................ RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year . . . . . . RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding . . RCFD 2920 632,259 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) . . RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves . . . . . . . . . RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments . . . . RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27) . . . . . RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . RCFD 3300 49,335,206 29.
</TABLE>
<TABLE>
<S><C>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number
auditors as of any date during 1995 . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 6724.... N/A M.1.
</TABLE>
<TABLE>
<S><C>
1 = Independent audit of the bank conducted in accordance 4. = Directors'examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
___________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
