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EXHIBIT 4.41
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ILLINOIS POWER COMPANY
TO
XXXXXX TRUST AND SAVINGS BANK,
AS TRUSTEE
,____________________________
SUPPLEMENTAL INDENTURE NO. 1
DATED AS OF MARCH 1, 1998
TO
GENERAL MORTGAGE INDENTURE AND DEED OF TRUST
DATED AS OF NOVEMBER 1, 1992
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SUPPLEMENTAL INDENTURE No. 1 dated as of March 1, 1998 ("Supplemental Indenture
No. 1"), made by and between ILLINOIS POWER COMPANY, a corporation organized and
existing under the laws of the State of Illinois (the "Company"), party of the
first part, and XXXXXX TRUST AND SAVINGS BANK, a corporation organized and
existing under the laws of the State of Illinois (the "Trustee"), as Trustee
under the General Mortgage Indenture and Deed of Trust dated as of November 1,
1992, hereinafter mentioned, party of the second part;
WHEREAS, the Illinois Environmental Facilities Financing Act (20 ILCS
3515/1 et seq.), as amended and supplemented (the "Act"), authorizes and
empowers the Illinois Development Finance Authority, a political subdivision and
body politic and corporate, duly organized and validly existing under and by
virtue of the Constitution and laws of the State of Illinois ("IDFA") to issue
bonds for the refunding of any bonds deemed necessary in connection with any
purpose of IDFA; and
WHEREAS, pursuant to and in accordance with the provisions of the Act, a
predecessor of IDFA has heretofore made a loan to the Company for the purpose of
financing certain pollution control facilities of the Company; and
WHEREAS, such predecessor to IDFA has financed a portion of the costs of
such pollution control facilities as an authorized project under the Act by the
issuance of the Illinois Industrial Pollution Control Financing Authority
Pollution Control Revenue Bonds, 1977 Series A (Illinois Power Company Project)
in the aggregate principal amount of $18,700,000 (all of which are currently
outstanding) (the "Prior Bonds") and by loaning the proceeds therefrom to the
Company; and
WHEREAS, IDFA now intends to issue its Pollution Control Revenue Refunding
Bonds, 1998 Series A (Illinois Power Company Project) in the aggregate principal
amount of $18,700,000 (the "Series A IDFA Bonds") and to loan the proceeds
therefrom to the Company pursuant to a Loan Agreement dated as of March 1, 1998
(the "Loan Agreement") to assist the Company in refunding on or about April 1,
1998 the Prior Bonds; and
WHEREAS, the Series A IDFA Bonds will be issued by IDFA pursuant to an
Indenture of Trust (as from time to time amended or modified, the "IDFA Series A
Indenture") dated as of March 1, 1998 between IDFA and Xxxxxx Trust and Savings
Bank, as Trustee under such Indenture (together with any successor in such
capacity the "IDFA Indenture Trustee");
WHEREAS, the Company has heretofore executed and delivered its General
Mortgage Indenture and Deed of Trust dated as of November 1, 1992 as from time
to time amended (the "Indenture"), to the Trustee, for the security of the Bonds
of the Company issued and to be issued thereunder (the "Bonds"); and
WHEREAS, pursuant to the terms and provisions of the Indenture there were
created and authorized by supplemental indentures thereto bearing the following
dates, respectively, the New Mortgage Bonds of the series issued thereunder and
respectively identified opposite such dates:
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DATE OF
SUPPLEMENTAL INDENTURE IDENTIFICATION OF SERIES CALLED
---------------------- ------------------------ ------
February 15, 1993 8% Series due 2023 Bonds of the 2023 Series
March 15, 1993 6 1/8% Series due 2000 Bonds of the 2000 Series
March 15, 1993 6 3/4% Series due 2005 Bonds of the 2005 Series
July 15, 1993 7 1/2% Series due 2025 Bonds of the 2025 Series
August 1, 1993 6 1/2% Series due 2003 Bonds of the 2003 Series
October 15, 1993 5 5/8% Series due 2000 Bonds of the Second 2000
Series
November 1, 1993 Pollution Control Series Bonds of the Pollution Control
M Series M
November 1, 1993 Pollution Control Series Bonds of the Pollution Control
N Series N
November 1, 1993 Pollution Control Series Bonds of the Pollution Control
O Series O
April 1, 1997 Pollution Control Series Bonds of the Pollution Control
P Series P
April 1, 1997 Pollution Control Series Bonds of the Pollution Control
Q Series Q
April 1, 1997 Pollution Control Series Bonds of the Pollution Control
R Series R
and
WHEREAS, the Company desires to create a new series of Bonds to be issued
under the Indenture to be known as New Mortgage Bonds, Pollution Control Series
S (the "Pollution Control Series S Bonds"); and
WHEREAS, the Company, in the exercise of the powers and authority conferred
upon and reserved to it under the provisions of the Indenture, and pursuant to
appropriate resolutions of the Board of Directors, has duly resolved and
determined to make, execute and deliver to the Trustee a Supplemental Indenture
No. 1 in the form hereof for the purposes herein provided; and
WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture No. 1 a valid, binding and legal instrument have been
done, performed and fulfilled and the execution and delivery hereof have been in
all respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE No. 1 WITNESSETH:
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THAT Illinois Power Company, in consideration of the purchase and ownership
from time to time of the Bonds and the service by the Trustee, and its
successors, under the Indenture and of One Dollar to it duly paid by the Trustee
at or before the ensealing and delivery of these presents, the receipt whereof
is hereby acknowledged, hereby covenants and agrees to and with the Trustee and
its successors in the trust under the Indenture, for the benefit of those who
shall hold the Bonds as follows:
ARTICLE I.
DESCRIPTION OF POLLUTION CONTROL SERIES S BONDS.
SECTION 1. The Company hereby creates a new series of Bonds to be known as
"Pollution Control Series S Bonds." The Pollution Control Series S Bonds shall
be executed, authenticated and delivered in accordance with the provisions of,
and shall in all respects be subject to, all of the terms, conditions and
covenants of the Indenture, as supplemented and modified. The Pollution Control
Series S Bonds shall be issued only to the IDFA Indenture Trustee as security
for the Company's obligations under the Loan Agreement relating to the Series A
IDFA Bonds. The Company shall not cause any Pollution Control Series S Bonds to
be paid or deemed to be paid prior to the payment of the Series A IDFA Bonds.
The Pollution Control Series S Bonds shall be dated as provided in Section
3.03 of Article Three of the Indenture. The Pollution Control Series S Bonds
shall mature on March 1, 2028, and shall bear interest at the rate of five and
four-tenths per cent (5.40%) per annum, payable semi-annually on March 1 and
September 1 of each year, commencing September 1, 1998, until the principal sum
is paid in full.
SECTION 2. The Pollution Control Series S Bonds and the Trustee's
Certificate of Authentication shall be substantially in the following forms
respectively:
[FORM OF FACE OF BOND)
ILLINOIS POWER COMPANY
(Incorporated under the laws of the State of Illinois)
NEW MORTGAGE BOND, POLLUTION CONTROL SERIES S
No. ________ $18,700,000
ILLINOIS POWER COMPANY, a corporation organized and existing under the laws
of the State of Illinois (the "Company"), which term shall include any successor
corporation as defined in the Indenture hereinafter referred to), for value
received, hereby promises to pay to Xxxxxx Trust and Savings Bank, as Trustee
(the "IDFA Indenture Trustee") under the Indenture of Trust dated as of March 1,
1998 (the "IDFA Series A Indenture"), relating to the Pollution Control Revenue
Refunding Bonds, 1998 Series A (the "Series A IDFA Bonds"), between the Illinois
Development Finance Authority ("IDFA") and the IDFA Indenture Trustee, or
registered assigns, the principal sum of $18,700,000 on March 1, 2028, in any
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coin or currency of the United States of America which at the time of payment is
legal tender for public and private debts, and to pay interest thereon in like
coin or currency from March 1, 1998, payable semi-annually on March 1 and
September 1 of each year, commencing September 1, 1998, at the rate of five and
four-tenths per cent (5.40%) per annum, until said principal sum is paid in
full. Both the principal of, and the interest on, this Bond are payable at the
agency of the Company in the City of Chicago, Illinois.
This Bond shall not be entitled to any benefit under the Indenture or any
indenture supplemental thereto, or become valid or obligatory for any purpose,
until the form of certificate endorsed hereon shall have been signed by or on
behalf of Xxxxxx Trust and Savings Bank, the Trustee under the Indenture, or a
successor trustee thereto under the Indenture (the "Trustee").
The provisions of this Bond are continued on the reverse hereof and such
continued provisions shall for all purposes have the same effect as though fully
set forth at this place.
IN WITNESS WHEREOF, Illinois Power Company has caused this Bond to be
signed (manually or by facsimile signature) in its name by an Authorized
Executive Officer, as defined in the aforesaid Indenture, and its corporate seal
(or a facsimile thereof) to be hereto affixed and attested (manually or by
facsimile signature) by an Authorized Executive Officer, as defined in such
Indenture on the date hereof.
Dated __________, 1998 ILLINOIS POWER COMPANY,
By . . . . . . . . . . . . . . . . .
Authorized Executive Officer
ATTEST:
. . . . . . . . . . . . . . . . . .
Authorized Executive Officer
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Bonds of the series designated therein referred to in
the within-mentioned Indenture and the Supplemental Indenture No. 1 dated as of
March 1, 1998.
XXXXXX TRUST AND SAVINGS BANK,
Trustee,
By . . . . . . . . . . . . . . . . .
Authorized Signatory
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[FORM OF REVERSE OF BOND]
This Bond is one of a duly authorized issue of Bonds of the Company (the
"Bonds") in unlimited aggregate principal amount, of the series hereinafter
specified, all issued and to be issued under and equally secured by the General
Mortgage Indenture and Deed of Trust (the "Indenture"), dated as of November 1,
1992, executed by the Company to Xxxxxx Trust and Savings Bank (the "Trustee"),
as Trustee, to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the properties mortgaged and pledged, the
nature and extent of the security, the rights of registered owners of the Bonds
and of the Trustee in respect thereof, and the terms and conditions upon which
the Bonds are, and are to be, secured. The Bonds may be issued in series, for
various principal sums, may mature at different times, may bear interest at
different rates and may otherwise vary as provided in the Indenture. This Bond
is one of a series designated as the "New Mortgage Bonds, Pollution Control
Series S" (the "Pollution Control Series S Bonds") of the Company, unlimited in
aggregate principal amount, issued under and secured by the Indenture and
described in the supplemental indenture no. 1 dated as of March 1, 1998 (the
"Supplemental Indenture No. 1 of March 1, 1998"), between the Company and the
Trustee, supplemental to the Indenture.
This Pollution Control Series S Bond is subject to redemption in accordance
with the terms of Article II of the Supplemental Indenture No. 1 of March 1,
1998.
In case an Event of Default, as defined in the Indenture, shall occur, the
principal of all Bonds at any such time outstanding under the Indenture may be
declared or may become due and payable, upon the conditions and in the manner
and with the effect provided in the Indenture. The Indenture provides that such
declaration may be rescinded under certain circumstances.
ARTICLE II.
REDEMPTION.
SECTION 1. The Pollution Control Series S Bonds shall, subject to the
provisions of the Indenture, be redeemable on the same terms, on the same dates
and in the same manner as the Series A IDFA Bonds shall be redeemed under the
terms of the IDFA Series A Indenture.
SECTION 2. The Pollution Control Series S Bonds shall be redeemed in whole
whenever the Trustee receives a written notice from the IDFA Indenture Trustee
stating that the principal of any bonds then outstanding under the IDFA Series A
Indenture has been declared to be immediately due and payable pursuant to the
provisions of Section 802 thereof. Such redemption shall be on any date not
more than one (1) business day after the receipt of such notice from the
trustee under the IDFA Series A Indenture. Any such redemption shall be at the
redemption price of 100% of the principal amount of the Bonds to be redeemed,
together with accrued interest to the date selected for redemption. A demand
from the IDFA Indenture Trustee shall be executed on behalf of such IDFA
Indenture Trustee by its President or a Vice President or a Trust Officer and
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shall be deemed received by the Trustee when delivered at its corporate trust
office in Chicago, Illinois. The Trustee may conclusively rely as to the truth
of the statements contained therein upon any such demand.
SECTION 3. Subject to the provisions of the Indenture, notice of
redemption of Pollution Control Series S Bonds shall be sent by the Company by
certified mail, postage prepaid, not later than the date fixed for redemption to
the registered owners of such Bonds at their addresses as the same shall appear,
if at all, on the transfer register of the Company. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given whether or not the holders receive such notice, but failure to give notice
by mail, or any defect in such notice, to the holder of any such Bonds
designated for redemption shall not affect the validity of the redemption of any
other such Bond.
ARTICLE III.
ISSUE OF POLLUTION CONTROL
SERIES S BONDS.
SECTION 1. The Company hereby exercises the right to obtain the
authentication of $18,700,000 principal amount of additional Bonds pursuant to
the terms of Section 4.02 of the Indenture, all of which shall be Pollution
Control Series S Bonds.
SECTION 2. Such Pollution Control Series S Bonds may be authenticated and
delivered prior to the filing for recordation of this Supplemental Indenture No.
1.
ARTICLE IV.
THE TRUSTEE.
The Trustee hereby accepts the trusts hereby declared and provided, and
agrees to perform the same upon the terms and conditions in the Indenture set
forth and upon the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture No. 1 or
the due execution hereof by the Company or for or in respect of the recitals
contained herein, all of which recitals are made by the Company solely. In
general, each and every term and condition contained in Article Eleven of the
Indenture shall apply to this Supplemental Indenture No. 1 with the same force
and effect as if the same were herein set forth in full, with such omissions,
variations and modifications thereof as may be appropriate to make the same
conform to this Supplemental Indenture No. 1.
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ARTICLE V.
MISCELLANEOUS PROVISIONS.
This Supplemental Indenture No. 1 may be simultaneously executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, said Illinois Power Company has caused this
Supplemental Indenture No. 1 to be executed on its behalf by an Authorized
Executive Officer as defined in the Indenture, and its corporate seal to be
hereto affixed and said seal and this Supplemental Indenture No. 1 to be
attested by an Authorized Executive Officer as defined in the Indenture; and
said Xxxxxx Trust and Savings Bank, in evidence of its acceptance of the trust
hereby created, has caused this Supplemental Indenture No. 1 to be executed on
its behalf by its President or one of its Vice Presidents and its corporate seal
to be hereto affixed and said seal and this Supplemental Indenture No. 1 to be
attested by its Secretary or one of its Assistant Secretaries; all as of the
first day of March, 1998.
ILLINOIS POWER COMPANY
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President -- Finance
(CORPORATE SEAL)
ATTEST:
/s/ Xxxx Xxxxxxx Stetzner
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Xxxx Xxxxxxx Stetzner
Vice President, General Counsel
and Corporate Secretary
XXXXXX TRUST AND SAVINGS BANK, Trustee
By /s/ X. Xxxxxxxxx
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X. Xxxxxxxxx
Vice President
(CORPORATE SEAL)
ATTEST:
/s/ X. Xxxxxx
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X. Xxxxxx
Assistant Secretary
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STATE OF ILLINOIS ) SS.
COUNTY OF MACON )
BE IT REMEMBERED, that on this 2nd day of March, 1998, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came Xxxxxx X. Xxxxxxx, Vice President -- Finance and Xxxx Xxxxxxx
Stetzner, Vice President, General Counsel and Corporate Secretary, of Illinois
Power Company, a corporation duly organized, incorporated and existing under the
laws of the State of Illinois, who are personally known to me to be such
officers, and who are personally known to me to be the same persons who executed
as such officers the within instrument of writing, and such persons duly
acknowledged that they signed, sealed and delivered the said instrument as their
free and voluntary act as such officers and as the free and voluntary act of
said Illinois Power Company for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
____________________________________________
Notary Public, Macon County, Illinois
My Commission Expires on ___________________.
(NOTARIAL SEAL)
STATE OF ILLINOIS ) SS.
COUNTY OF XXXX )
BE IT REMEMBERED, that on 27th day of February, 1998, before me, the
undersigned Xxxxxxxx Xxxxxxxxx, a Notary Public within and for the County and
State aforesaid, personally came X. Xxxxxxxxx, Vice President and X. Xxxxxx,
Assistant Secretary, of Xxxxxx Trust and Savings Bank, a corporation duly
organized, incorporated and existing under the laws of the State of Illinois,
who are personally known to me to be the same persons who executed as such
officers the within instrument of writing, and such persons duly acknowledged
that they signed, sealed and delivered the said instrument as their free and
voluntary act as such Vice President and Assistant Secretary, and as the free
and voluntary act of said Xxxxxx Trust and Savings Bank for the uses and
purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
____________________________________________
Notary Public, Xxxx County, Illinois
My Commission Expires on May 21, 2001.
(NOTARIAL SEAL)
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Return To: This Instrument Was Prepared By:
ILLINOIS POWER COMPANY Xxxxxx Xxxxxx & Xxxxx
Real Estate Dept. F-14 7200 Sears Tower
000 X. 00xx Xxxxxx Xxxxxxx, XX 00000
Xxxxxxx, XX 00000
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