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EXHIBIT 4.39
SUPPLEMENTAL INDENTURE, dated as of _____________, _______ (the "Supplemental
Indenture), 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 Company has heretofore executed and delivered its General
Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (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:
Date of Supplemental Identification
Indenture of Series Called
-------------------- -------------- ------
February 15, 1993 8% Series due Bonds of the 2023 Series
March 15, 1993 6 1/2% Series due Bonds of the 2000 Series
March 15, 1993 6 3/4% Series due Bonds of the 2005 Series
July 15, 1993 7 1/2% Series due Bonds of the 2025 Series
August 1, 1993 6 1/2% Series due Bonds of the 2003 Series
October 15, 1993 55/8% Series due 2000 Bonds of the Second 2000 Series
November 1, 1993 Pollution Control Series M Bonds of the Pollution Control Series M
November 1, 1993 Pollution Control Series N Bonds of the Pollution Control Series N
November 1, 1993 Pollution Control Series O Bonds of the Pollution Control Series O
April 1, 1997 Pollution Control Series P Bonds of the Pollution Control Series P
April 1, 1997 Pollution Control Series Q Bonds of the Pollution Control Series Q
April 1, 1997 Pollution Control Series R Bonds of the Pollution Control Series R
March 1, 1998 Pollution Control Series S Bonds of the Pollution Control Series S
March 1, 1998 Pollution Control Series T Bonds of the Pollution Control Series T
WHEREAS, the Company desires to create a new series of Bonds to be
issued under the Indenture, to be known as New Mortgage Bonds, ____% Series due
____ (the "New Mortgage Bonds of the ____ Series"); 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 in the form hereof for the purposes herein provided; and
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WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture 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 INDENTURE WITNESSETH:
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 NEW MORTGAGE BONDS OF THE ____ SERIES.
SECTION 1. The Company hereby creates a new series of Bonds to be known
as "New Mortgage Bonds of the ____ Series." The New Mortgage Bonds of the ____
Series 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 commencement of the first interest period shall be ___________,
______. All New Mortgage Bonds of the ____ Series shall mature _____________,
and shall bear interest at the rate of ______________ per cent (______%) per
annum, payable semi-annually on the first day of _________ and the first day of
___________ in each year. The person in whose name any of the New Mortgage Bonds
of the ____ Series are registered at the close of business on any record date
(as hereinafter defined) with respect to any interest payment date shall be
entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such New Mortgage Bonds of the ____ Series
upon any transfer or exchange subsequent to the record date and prior to such
interest payment date; provided, however, that if and to the extent the Company
shall default in the payment of the interest due on such interest payment date,
such defaulted interest shall be paid as provided in Section 3.07 of the
Indenture.
The term "record date" as used in this Section with respect to any
interest payment date shall mean the _________ or ___________, as the case may
be, next preceding the semi-annual interest payment date, or, if such _________
or _________ shall be a legal holiday or a day on which banking institutions in
the City of Chicago, Illinois, are authorized by law to close, then the next
preceding day which shall not be a legal holiday or a day on which such
institutions are so authorized to close.
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SECTION 2. The New Mortgage Bonds of the _____ Series shall be issued
only as registered Bonds without coupons of the denomination of $1,000, or any
integral multiple of $1,000, appropriately numbered. The New Mortgage Bonds of
the ______ Series may be exchanged, upon surrender thereof, at the agency of the
Company in the City of Chicago, Illinois, for one or more new New Mortgage Bonds
of the ____ Series of other authorized denominations, for the same aggregate
principal amount, subject to the terms and conditions set forth in the
Indenture.
New Mortgage Bonds of the ____ Series may be exchanged or transferred
without expense to the registered owner thereof except that any taxes or other
governmental charges required to be paid with respect to such transfer or
exchange shall be paid by the registered owner requesting such transfer or
exchange as a condition precedent to the exercise of such privilege.
SECTION 3. The New Mortgage Bonds of the ____ Series and the Trustee's
Certificate of Authentication shall be substantially in the following forms
respectively:
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[FORM OF FACE OF BOND]
ILLINOIS POWER COMPANY
(Incorporated under the laws of the State of Illinois)
NEW MORTGAGE BOND, ____% SERIES DUE ____
No.____________ $_______________
ILLINOIS POWER COMPANY, a corporation organized and existing under the
laws of the State of Illinois (the "Company", which term shall include any
successor corporation as defined in the Indenture hereinafter referred to), for
value received, hereby promises to pay to ________ or registered assigns, the
sum of __________ Dollars ($_________) on the _____ day of ___________, in any
coin or currency of the United States of America which at the time of payment is
legal tender for public and private debts, and to pay interest thereon in like
coin or currency from _____________, payable semi-annually, on the _______ days
of ___________ and _____________ in each year, at the rate of _____________ per
cent (_____%) per annum, until the Company's obligation with respect to the
payment of such principal shall be discharged as provided in the Indenture
hereinafter mentioned. The interest so payable on any ____________ or
___________ will, subject to certain exceptions provided in the Supplemental
Indenture dated as of ____________, _______, be paid to the person in whose name
this Bond is registered at the close of business on the immediately preceding
________ or __________, as the case may be. Both principal of, and 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 provisions of this New Mortgage 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.
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IN WITNESS WHEREOF, Illinois Power Company has caused this New Mortgage
Bond to be signed (manually or by facsimile signature) in its name by an
Authorized Executive Officer, as defined in the 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 this
Indenture.
Dated ________________, _______ 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 dated as of November 1, 1992 and Supplemental
Indenture dated as of ______________, _______.
XXXXXX TRUST AND SAVINGS BANK,
Trustee,
By__________________________________
Authorized Signatory
[FORM OF REVERSE OF BOND]
This New Mortgage Bond of the _______ Series 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 a 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
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times, may bear interest at different rates and may otherwise vary as provided
in the Indenture. This New Mortgage Bond of the _______ Series is one of a
series designated as the "New Mortgage Bonds, ______% Series Due ________" (the
"New Mortgage Bonds of the ________ Series") of the Company, unlimited in
aggregate principal amount, issued under and secured by the Indenture and
described in the supplemental indenture dated as of ____________, _______ (the
"Supplemental Indenture dated as of __________, _______"), between the Company
and the Trustee, supplemental to the Indenture.
The New Mortgage Bonds of the ________ Series are not subject to
redemption prior to maturity.
In case an Event of Default, as defined in the Indenture, shall occur,
the principal of all the New Mortgage Bonds of the ________ Series 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.
ISSUE OF NEW MORTGAGE BONDS OF THE _____ SERIES.
SECTION 1. The Company hereby exercises the right to obtain the
authentication of $___________ principal amount of Bonds pursuant to the terms
of Section 4.02 of the Indenture.
All such Bonds shall be New Mortgage Bonds of the _____ Series.
SECTION 2. Such New Mortgage Bonds of the _____ Series may be
authenticated and delivered prior to the filing for recordation of this
Supplemental Indenture.
ARTICLE III.
REDEMPTION.
New Mortgage Bonds of the _____ Series [are] [are not] subject to
redemption prior to maturity [as follows].
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:
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The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental
Indenture 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 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.
ARTICLE V.
MISCELLANEOUS PROVISIONS.
This Supplemental Indenture 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.
IN WITNESS WHEREOF, Illinois Power Company has caused this Indenture 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
Indenture 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 Indenture 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 Indenture to be attested by its
Secretary or one of its Assistant Secretaries; all as of the _____ day of
__________, _______.
ILLINOIS POWER COMPANY
By__________________________________
(CORPORATE SEAL) [President/Vice President]
ATTEST:
__________________________________
[Secretary/Assistant Secretary]
XXXXXX TRUST AND SAVINGS BANK, Trustee
By__________________________________
(CORPORATE SEAL) [President/Vice President]
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ATTEST:
__________________________________
[Secretary/Assistant Secretary]
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STATE OF ILLINOIS )
) SS.:
COUNTY OF __________ )
BE IT REMEMBERED, that on this _____ day of ____________, _______,
before me, the undersigned ____________, a Notary Public within and for the
County and State aforesaid, personally came _____________________________ and
_________________________ 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
_________________ and _____________, respectively, 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, ________ County, Illinois
My Commission Expires _______________.
(NOTARIAL SEAL)
STATE OF ILLINOIS )
)
COUNTY OF ______ ) SS.:
BE IT REMEMBERED, that on this ____ day of _________, ______, before
me, the undersigned ________________, a Notary Public within and for the County
and State aforesaid, personally came _________________________ and
___________________________, 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 ______________ and ________________,
respectively, and as the free and voluntary act of said Xxxxxx Trust and Savings
Bank for the uses and purposes therein set forth.
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IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
__________________________________________________
Notary Public, __________ County, Illinois
My Commission Expires ____________.
(NOTARIAL SEAL)
Return To: This Instrument Was Prepared By:
ILLINOIS POWER COMPANY Xxxxxx Xxxxxx & Xxxxx
Attention: ________________ 7200 Sears Tower
000 X. 00xx Xxxxxx Xxxxxxx, XX 00000
Xxxxxxx, XX 00000
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