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EXHIBIT 4(D)
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FORM OF
ILLINOIS POWER COMPANY,
ISSUER
AND
WILMINGTON TRUST COMPANY,
TRUSTEE
INDENTURE
DATED AS OF -----------------, 1995
SUBORDINATED DEBT SECURITIES
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions of Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. Designation and Terms of Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.02. Form of Debt Securities and Trustee's Certificate. . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.03. Denominations; Provisions for Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.04. Execution and Authentication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.05. Registration of Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.06. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Debt Securities. . . . . . . . . . . . . . . . . . . . 13
SECTION 2.08. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.09. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.10. Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.11. Global Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.02. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.03. Payment Upon Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.04. Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.05. Satisfaction of Sinking Fund Payments with Debt Securities. . . . . . . . . . . . . . . . . 18
SECTION 3.06. Redemption of Debt Securities for Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest. . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.02. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.03. Paying Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.04. Appointment to Fill Vacancy in Office of Trustee. . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.05. Compliance with Consolidation Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.06. Limitation on Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.07. Covenants as to Illinois Power Trusts. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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SECTION 4.08. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Names and Addresses of Securityholders. . . . . . . . . . . . . 23
SECTION 5.02. Preservation Of Information; Communications With Securityholders. . . . . . . . . . . . . . 23
SECTION 5.03. Reports By the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.04. Reports by the Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6.02. Collection of Indebtedness and Suits for Enforcement by Trustee. . . . . . . . . . . . . . 27
SECTION 6.03. Application of Moneys Collected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.04. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.05. Rights and Remedies Cumulative; Delay or Omission Not Waiver. . . . . . . . . . . . . . . . 30
SECTION 6.06. Control by Securityholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.07. Undertaking to Pay Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities of Trustee. . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.02. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.03. Trustee Not Responsible for Recitals or Issuance of Debt Securities. . . . . . . . . . . . 34
SECTION 7.04. May Hold Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.05. Moneys Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.06. Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.07. Reliance on Officers' Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.08. Qualification; Conflicting Interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.09. Corporate Trustee Required; Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.10. Resignation and Removal; Appointment of Successor. . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.11. Acceptance of Appointment By Successor. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business. . . . . . . . . . . . . . . . 40
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SECTION 7.13. Preferential Collection of Claims Against the Company. . . . . . . . . . . . . . . . . . . 40
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 8.02. Proof of Execution by Securityholders. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 8.03. Who May be Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 8.04. Certain Debt Securities Owned by Company Disregarded. . . . . . . . . . . . . . . . . . . . 41
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without the Consent of Securityholders. . . . . . . . . . . . . . . 42
SECTION 9.02. Supplemental Indentures With Consent of Securityholders. . . . . . . . . . . . . . . . . . 43
SECTION 9.03. Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.04. Debt Securities Affected by Supplemental Indentures. . . . . . . . . . . . . . . . . . . . 44
SECTION 9.05. Execution of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01. Company May Consolidate, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 10.02. Successor Corporation Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 10.03. Evidence of Consolidation, Etc. to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.02. Discharge of Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 11.03. Deposited Moneys to be Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.04. Payment of Moneys Held by Paying Agents. . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.05. Repayment to Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. No Recourse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Effect on Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 13.02. Actions by Successor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 13.03. Surrender of Company Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 13.04. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 13.05. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 13.06. Treatment of the Debt Securities as Debt. . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 13.07. Compliance Certificates and Opinions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 13.08. Payments on Business Days. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 13.09. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 13.10. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 13.11. Separability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 13.12. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 13.13. Acknowledgment of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. Subordination Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
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SECTION OF
TRUST INDENTURE ACT SECTION OF
OF 1939, AS AMENDED INDENTURE
------------------- ----------
310(a) . . . . . . . . . . . . . . . . . . . . . 7.09
310(b) . . . . . . . . . . . . . . . . . . . . . 7.08
. . . . . . . . . . . . . . . . . . . . 7.10
310(c) . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . 7.13(a)
311(b) . . . . . . . . . . . . . . . . . . . . . 7.13(b)
311(c) . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . 5.01
. . . . . . . . . . . . . . . . . . . . 5.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . 5.02(b)
312(c) . . . . . . . . . . . . . . . . . . . . . 5.02(c)
313(a) . . . . . . . . . . . . . . . . . . . . . 5.04(a)
313(b) . . . . . . . . . . . . . . . . . . . . . 5.04(b)
313(c) . . . . . . . . . . . . . . . . . . . . . 5.04(a)
. . . . . . . . . . . . . . . . . . . . 5.04(b)
313(d) . . . . . . . . . . . . . . . . . . . . . 5.04(c)
314(a) . . . . . . . . . . . . . . . . . . . . . 5.03
314(b) . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . 13.06
314(d) . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . 13.06
314(f) . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . 7.01(a)
. . . . . . . . . . . . . . . . . . . . 7.02
315(b) . . . . . . . . . . . . . . . . . . . . . 6.07
315(c) . . . . . . . . . . . . . . . . . . . . . 7.01
315(d) . . . . . . . . . . . . . . . . . . . . . 7.01(b)
. . . . . . . . . . . . . . . . . . . . 7.01(c)
315(e) . . . . . . . . . . . . . . . . . . . . . 6.07
316(a) . . . . . . . . . . . . . . . . . . . . . 6.06
. . . . . . . . . . . . . . . . . . . . 8.04
316(b) . . . . . . . . . . . . . . . . . . . . . 6.04
316(c) . . . . . . . . . . . . . . . . . . . . . 8.01
317(a) . . . . . . . . . . . . . . . . . . . . . 6.02
317(b) . . . . . . . . . . . . . . . . . . . . . 4.03
318(a) . . . . . . . . . . . . . . . . . . . . . 13.08
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Guarantee Agreement and shall not have any bearing on the
interpretation of its terms or provisions.
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THIS INDENTURE, dated as of _______________, 1995, between
ILLINOIS POWER COMPANY, an Illinois corporation (the "Company"), and WILMINGTON
TRUST COMPANY, a Delaware banking corporation, not in its individual capacity
but solely as trustee (the "Trustee"):
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided. This Indenture is
subject to the provisions of the Trust Indenture Act of 1939, as amended, that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions. All things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
any series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions of Terms.
The terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section and shall include the plural
as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939, as amended, or that are by
reference in such Trust Indenture Act defined in the Securities Act of 1933, as
amended (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 the
execution of this instrument.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power to vote
10% or more of the outstanding voting securities or other ownership interests
of the specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner,
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(e) any officer or director of the specified Person and (f) if the specified
Person is an individual, any entity of which the specified Person is an
officer, director or general partner.
"Authenticating Agent" means an authenticating agent with
respect to all or any of the series of Debt Securities appointed with respect
to all or such series of the Debt Securities by the Trustee pursuant to Section
2.10.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of the
Company, or any duly authorized committee of such board or any officer of the
Company duly authorized by the board of directors of the Company or a duly
authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
"Business Day" means, with respect to any series of Debt
Securities, any day other than a day on which banking institutions in New York
are authorized or required by law to close.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company. The Certificate need not comply
with the provisions of Section 13.07.
"Common Securities" means undivided beneficial interests in
the assets of an Illinois Power Trust which rank pari passu with Preferred
Securities issued by such trust; provided, however, that upon the occurrence of
an Event of Default, the rights of holders of Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and maturity
are subordinated to the rights of holders of Preferred Securities.
"Common Securities Guarantee" means any guarantee that the
Company may enter into with an Illinois Power Trust or other Persons that
operate directly or indirectly for the benefit of holders of Common Securities
of such trust.
"Company" means Illinois Power Company, a corporation duly
organized and existing under the laws of the State of Illinois, and, subject to
the provisions of Article X, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Department.
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"Custodian" means any receiver, trustee, assignee, liquidator,
or similar official under any Bankruptcy Law.
"Declaration" means, in respect of an Illinois Power Trust,
the amended and restated declaration of trust of such Illinois Power Trust or
any other governing instrument of such Trust.
"Debt Securities" means the Debt Securities authenticated and
delivered under this Indenture.
"Default" means any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.03.
"Depositary" means, with respect to Debt Securities of any
series for which the Company shall determine that such Debt Securities will be
issued as a Global Security, The Depository Trust Company, New York, New York,
another clearing agency, or any successor registered as a clearing agency under
the Exchange Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to either Section 2.01 or
2.11.
"Event of Default" means, with respect to Debt Securities of a
particular series, any event specified in Section 6.01, continued for the
period of time, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Security" means, with respect to any series of
Securities, a Debt Security executed by the Company and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, all in
accordance with the Indenture, which shall be registered in the name of this
Depositary or its nominee.
"Governmental Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities) as custodian with respect to any such Governmental Obligation
or a specific payment of principal of or interest on any such Governmental
Obligation held by such custodian for the account of the holder of such
depositary receipt; provided, however, that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
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to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"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.
"Illinois Power Trust" means a Delaware business trust formed
by the Company for the purpose of purchasing Debt Securities of the Company.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof.
"Interest Payment Date", when used with respect to any
installment of interest on a Debt Security of a particular series, means the
date specified in such Debt Security or in a Board Resolution, Officers'
Certificate or in an indenture supplemental hereto with respect to such series
as the fixed date on which an installment of interest with respect to Debt
Securities of that series is due and payable.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Controller or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company that is delivered to the Trustee in accordance with
the terms hereof. Each such certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal
counsel, who may be an employee of or counsel for the Company, that is
delivered to the Trustee in accordance with the terms hereof. Each such
opinion shall include the statements provided for in Section 13.07, if and to
the extent required by the provisions thereof.
"Outstanding", when used with reference to Debt Securities of
any series, means, subject to the provisions of Section 8.04, as of any
particular time, all Debt Securities of that series theretofore authenticated
and delivered by the Trustee under this Indenture, except (a) Debt Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the
Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Debt Securities or portions thereof for the payment or redemption
of which moneys or Governmental Obligations in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent (other than
the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent); provided, however,
that if such Debt Securities or portions of such Debt Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in Section 3.02, or provision satisfactory to the
Trustee shall have been
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made for giving such notice; (c) Debt Securities in lieu of or in substitution
for which other Debt Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.07; and (d) Debt Securities, except to the
extent provided in Sections 11.01 and 11.02, with respect to which the Company
has effected defeasance and/or covenant defeasance as provided in Article XI.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, joint-stock company, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt and
guarantee as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and delivered
under Section 2.07 in lieu of a lost, destroyed or stolen Debt Security shall
be deemed to evidence the same debt as the lost, destroyed or stolen Debt
Security.
"Preferred Securities" means undivided beneficial interests in
the assets of an Illinois Power Trust which rank pari passu with Common
Securities issued by such trust; provided, however, that upon the occurrence of
an Event of Default, the rights of holders of Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the
Company may enter into with an Illinois Power Trust or other Persons that
operates directly or indirectly for the benefit of holders of Preferred
Securities of such trust.
"Property Trustee" means the entity performing the functions
of the Property Trustee of an Illinois Power Trust under the applicable
Declaration of such Illinois Power Trust.
"Responsible Officer," when used with respect to the Trustee,
means the Chairman or any Vice Chairman of the Board of Directors, the
President, any Vice President, the Secretary, the Treasurer, any trust officer,
any corporate trust officer 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 or her knowledge of and
familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended
from time to time or any successor legislation.
"Securityholder", "holder of Debt Securities", "registered
holder", or other similar term, means the Person or Persons in whose name or
names a particular Debt
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Security shall be registered on the books of the Company kept for that purpose
in accordance with the terms of this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings set forth in Section 2.05.
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock shall at the
time be owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and
one or more of its Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner.
"Trustee" means Wilmington Trust Company, not in its
individual capacity, and, subject to the provisions of Article VII, shall also
include its successors and assigns, and, if at any time there is more than one
Person acting in such capacity hereunder, "Trustee" shall mean each such
Person. The term "Trustee," as used with respect to a particular series of
Debt Securities, shall mean the trustee with respect to that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
subject to the provisions of Sections 9.01, 9.02 and 10.01, as in effect at the
date of execution of this instrument.
"Trust Securities" means Common Securities and Preferred
Securities.
"Voting Stock", as applied to stock of any Person, means
shares, interests, participations or other equivalents in the equity interest
(however designated) in such Person having ordinary voting power for the
election of a majority of the directors (or the equivalent) of such Person,
other than shares, interests, participations or other equivalents having such
power only by reason of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. Designation and Terms of Debt Securities.
The aggregate principal amount of Debt Securities that may be
authenticated and delivered under this Indenture is unlimited. The Debt
Securities may be issued in one or more series up to the aggregate principal
amount of Debt Securities of that series from time to time authorized by or
pursuant to a Board Resolution of the Company, or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of Debt
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Securities of any series, there shall be established in or pursuant to a Board
Resolution of the Company, and set forth in an Officers' Certificate of the
Company, or established in one or more indentures supplemental hereto:
(1) the title of the series of Debt Security (which shall
distinguish the Debt Securities of that series from all other
series of Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series that may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Debt Securities of
that series);
(3) the date or dates on which the principal of the Debt
Securities of that series is payable;
(4) the rate or rates at which the Debt Securities of that series
shall bear interest or the manner of calculation of such rate
or rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable
or the manner of determination of such Interest Payment Dates
and the record date for the determination of holders to whom
interest is payable on any such Interest Payment Dates;
(6) the right, if any, to defer the interest payment periods and
the duration of such extension;
(7) the period or periods within which, the price or prices at
which, and the terms and conditions upon which, Debt
Securities of that series may be redeemed, in whole or in
part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Debt Securities of that series pursuant to any sinking fund or
analogous provisions (including payments made in cash in
participation of future sinking fund obligations) or at the
option of a holder thereof and the period or periods within
which, the price or prices at which, and the terms and
conditions upon which, Debt Securities of that series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the security or subordination terms of the Debt Securities of
that series;
(10) the form of the Debt Securities of that series, including the
form of the Certificate of Authentication for such series;
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(11) if other than denominations of twenty-five U.S. dollars ($25)
or any integral multiple thereof, the denominations in which
the Debt Securities of that series shall be issuable;
(12) whether and under what circumstances the Company will pay
additional amounts on the Debt Securities of the series to any
holder who is not a United States person (including any
modification to the definition of such term) in respect of any
tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Debt Securities
rather than pay such additional amounts (and the terms of any
such option);
(13) whether the Debt Securities are issuable as a Global Security
and, in such case, the identity of the Depositary for such
series.; and
(14) any and all other terms with respect to such series (which
terms shall not be inconsistent with the terms of this
Indenture), including any terms which may be required by or
advisable under United States laws or regulations or advisable
in connection with the marketing of Debt Securities of that
series.
All Debt Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of a series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
SECTION 2.02. Form of Debt Securities and Trustee's Certificate.
The Debt Securities of any series and the Trustee's
certificate of authentication to be borne by such Debt Securities shall be
substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution and as set forth in an
Officers' Certificate, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which Debt Securities of
that series may be listed, or to conform to usage.
SECTION 2.03. Denominations; Provisions for Payment.
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The Debt Securities shall be issuable as registered Debt
Securities and in the denominations of twenty-five U.S. dollars ($25) or any
integral multiple thereof, subject to Section 2.01(11). The Debt Securities of
a particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. The principal of and the interest on
the Debt Securities of any series, as well as any premium thereon in case of
redemption thereof prior to maturity, shall be payable in the coin or currency
of the United States of America that at the time of such payment is legal
tender for public and private debt, at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, the City and State of
New York. Each Debt Security shall be dated the date of its authentication.
Interest on the Debt Securities shall be computed on the basis of a 360-day
year composed of twelve 30-day months.
Unless otherwise contemplated by Section 2.01 with respect to
any series of Debt Securities, the interest installment on any Debt Security
that is payable, and is punctually paid or duly provided for, on any Interest
Payment Date for Debt Securities of that series shall be paid to the Person in
whose name said Debt Security (or one or more Predecessor Debt Securities) is
registered at the close of business on the regular record date for such
interest installment.
In the event that any Debt Security of a particular series or
portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and prior to
such Interest Payment Date, interest on such Debt Security will be paid upon
presentation and surrender of such Debt Security as provided in Section 3.03.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered holder on the relevant regular record
date by virtue of having been such holder; and such Defaulted Interest shall be
paid by the Company, at its election, as provided in clause (1) or clause (2)
below:
(1) The Company may make payment of any Defaulted Interest on Debt
Securities to the Persons in whose names such Debt Securities
(or their respective Predecessor Debt Securities) are
registered at the close of business on a special record date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debt Security and the date of
the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such
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Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of
such Defaulted Interest which shall not be more than 15 nor
less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and,
in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and
the special record date therefor to be mailed, first class
postage prepaid, to each Securityholder at his or her address
as it appears in the Security Register (as hereinafter
defined), not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names such Debt Securities (or their
respective Predecessor Debt Securities) are registered on such
special record date and shall be no longer payable pursuant to
the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Debt Securities in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Debt Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Company to the Trustees of the proposed payment pursuant to
this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise provided in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of Debt
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Debt Securities with respect
to any Interest Payment Date for such series shall mean either the fifteenth
day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur,
if such Interest Payment Date is the first day of a month, or the last day of
the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not such
date is a Business Day.
Subject to the foregoing provisions of this Section, each Debt
Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debt Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by
such other Debt Security.
SECTION 2.04. Execution and Authentication.
The Debt Securities shall be signed on behalf of the Company
by its Chairman, President or one of its Vice Presidents, under its corporate
seal attested by its
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Secretary or one of its Assistant Secretaries. Signatures may be in the form
of a manual or facsimile signature. The Company may use the facsimile
signature of any Person who shall have been a President or Vice President
thereof, or of any Person who shall have been a Secretary or Assistant
Secretary thereof, notwithstanding the fact that at the time the Debt
Securities shall be authenticated and delivered or disposed of such Person
shall have ceased to be the President or a Vice President, or the Secretary or
an Assistant Secretary, of the Company. The seal of the Company may be in the
form of a facsimile of such seal and may be impressed, affixed, imprinted or
otherwise reproduced on the Debt Securities. The Debt Securities may contain
such notations, legends or endorsements required by law, stock exchange rule or
usage. Each Debt Security shall be dated the date of its authentication by the
Trustee.
A Debt Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating
Agent. Such signature shall be conclusive evidence that the Debt Security so
authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debt Securities of any
series executed by the Company to the Trustee for authentication, together with
a written order of the Company for the authentication and delivery of such Debt
Securities, signed by its President or any Vice President and its Treasurer or
any Assistant Treasurer, and the Trustee in accordance with such written order
shall authenticate and deliver such Debt Securities.
In authenticating such Debt Securities and accepting the
additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the form and terms thereof have been established in conformity with the
provisions of this Indenture.
The Trustee shall not be required to authenticate such Debt
Securities if the issue of such Debt Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Debt Securities
and this Indenture or otherwise in a manner that is not reasonably acceptable
to the Trustee.
SECTION 2.05. Registration of Transfer and Exchange.
(a) Debt Securities of any series may be exchanged upon
presentation thereof at the Corporate Trust Office or such
other location designated by the Company pursuant to Section
4.02 for other Debt Securities of such series of authorized
denominations, and for a like aggregate principal amount, upon
payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in
this Section. In respect of any Debt Securities so
surrendered for exchange, the Company shall execute, the
Trustee shall
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authenticate and such office or agency shall deliver in
exchange therefor the Debt Security or Debt Securities of the
same series that the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously
outstanding.
(b) The Company shall keep, or cause to be kept, at the Corporate
Trust Office or such other location designated by the Company
pursuant to Section 4.02 a register or registers (herein
referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company
shall register the Debt Securities and the transfers of Debt
Securities as in this Article provided and which at all
reasonable times shall be open for inspection by the Trustee.
The registrar for the purpose of registering Securities and
transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the "Security Registrar").
Upon surrender for transfer of any Debt Security at the
Corporate Trust Office or such other location designated by the Company
pursuant to Section 4.02, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Debt Security or Debt Securities of the same
series as the Debt Security presented for a like aggregate principal amount.
All Debt Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied (if
so required by the Company or the Security Registrar) by a written instrument
or instruments of transfer, in form satisfactory to the Company or the Security
Registrar, duly executed by the registered holder or by such holder's duly
authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debt Securities, or issue of new
Debt Securities in case of partial redemption of any series,
but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debt Securities during a period
beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of less than all the
Outstanding Debt Securities of the same series and ending at
the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Debt Securities of
any series or portions thereof called for redemption. The
provisions of this Section 2.05 are, with respect to any
Global Security, subject to Section 2.11 hereof.
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SECTION 2.06. Temporary Securities.
Pending the preparation of definitive Debt Securities of any
series, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Debt Securities (printed, lithographed or typewritten) of
any authorized denomination. Such temporary Debt Securities shall be
substantially in the form of the definitive Debt Securities in lieu of which
they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be determined by the
Company. Every temporary Debt Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Debt
Securities of such series. Without unnecessary delay the Company will execute
and furnish definitive Debt Securities of such series and thereupon any or all
temporary Debt Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the Corporate Trust Office or such
location designated by the Company pursuant to Section 4.02 and such Corporate
Trust Office or location shall deliver in exchange for such temporary Debt
Securities an equal aggregate principal amount of definitive Debt Securities of
such series, unless the Company advises the Trustee to the effect that
definitive Debt Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Debt Securities of
such series shall be entitled to the same benefits under this Indenture as
definitive Debt Securities of such series authenticated and delivered
hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Debt Securities.
In case any temporary or definitive Debt Security shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company's request, the Trustee
(subject as aforesaid) shall authenticate and deliver, a new Debt Security of
the same series, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Debt Security, or in lieu of and in
substitution for the Debt Security so destroyed, lost or stolen. In every case
the applicant for a substituted Debt Security shall furnish to the Company and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's Debt Security
and of the ownership thereof. The Trustee may authenticate any such
substituted Debt Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any
substituted Debt Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. In case any Debt Security that has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debt Security, pay or authorize
the payment of the same (without surrender thereof except in the case of a
mutilated Debt Security) if the applicant for such payment shall furnish to the
Company
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and the Trustee such security or indemnity as they may require to save them
harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Debt Security and of the ownership thereof.
Every replacement Debt Security issued pursuant to the
provisions of this Section shall constitute an additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Debt Security shall be found at any time, or be enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities of the same series duly
issued hereunder. All Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debt Securities,
and shall preclude (to the extent lawful) 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 2.08. Cancellation.
All Debt Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be cancelled by it, and no Debt Securities
shall be issued in lieu thereof except as expressly required or permitted by
any of the provisions of this Indenture. On request of the Company at the time
of such surrender, the Trustee shall deliver to the Company canceled Debt
Securities held by the Trustee. In the absence of such request the Trustee may
dispose of canceled Debt Securities in accordance with its standard procedures
and deliver a certificate of disposition to the Company. If the Company shall
otherwise acquire any of the Debt Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Debt Securities unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.09. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, express
or implied, shall give or be construed to give to any Person, other than the
parties hereto and the holders of the Debt Securities (and, with respect to the
provisions of Article XIV, the holders of Senior Indebtedness) any legal or
equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of the parties
hereto and of the holders of the Debt Securities (and, with respect to the
provisions of Article XIV, the holders of Senior Indebtedness).
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SECTION 2.10. Authenticating Agent.
So long as any of the Debt Securities of any series remain
Outstanding, there may be an Authenticating Agent for any or all such series of
Debt Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debt Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Debt Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. All references
in this Indenture to the authentication of Debt Securities by the Trustee shall
be deemed to include authentication by an Authenticating Agent for such series.
Each Authenticating Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and that is otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by federal or state authorities. If
at any time any Authenticating Agent shall cease to be eligible in accordance
with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The Trustee
may at any time (and upon request by the Company shall) terminate the agency of
any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that
the Debt Securities of a particular series are to be issued as
a Global Security or Securities, then the Company shall
execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i)
shall represent, and shall be denominated in an amount equal
to the aggregate principal amount of, all of the Outstanding
Debt Securities of such series, (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Debt Security
may be transferred, in whole but not in part, only to another
nominee of the Depositary or to a successor Depositary or to a
nominee of such successor Depositary."
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(b) Except as provided in clause (c), notwithstanding the
provisions of Section 2.05, the Global Security or Securities
of a series may be transferred, in whole but not in part and
in the manner provided in Section 2.05, only to another
nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company
or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Debt
Securities notifies the Company that it is unwilling or unable
to continue as Depositary for such series or if at any time
the Depositary for such series shall no longer be registered
or in good standing under the Exchange Act, or other
applicable statute or regulation, at a time when the
Depositary is required to be so registered to act as such
Depositary and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as
the case may be, this Section 2.11 shall no longer be
applicable to the Debt Securities of such series and the
Company will execute, and subject to Section 2.05, the Trustee
will authenticate and deliver the Debt Securities of such
series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security or
Securities of such series in exchange for such Global Security
or Securities. In addition, the Company may at any time
determine that the Debt Securities of any series shall no
longer be represented by a Global Security or Securities and
that the provisions of this Section 2.11 shall no longer apply
to the Debt Securities of such series. In such event, the
Company will execute and, subject to Section 2.05, the
Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company, will authenticate and
deliver the Debt Securities of such series in definitive
registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities of such series in
exchange for such Global Security or Securities. Upon the
exchange of the Global Security or Securities for such Debt
Securities in definitive registered form without coupons, in
authorized denominations, the Global Security or Securities
shall be canceled by the Trustee. Such Debt Securities in
definitive registered form issued in exchange for the Global
Security or Securities pursuant to this Section 2.11(c) shall
be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Debt
Securities to the Depositary for delivery to the Persons in
whose names such Debt Securities are so registered.
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ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption.
The Company may redeem the Debt Securities of any series
issued hereunder on and after the dates and in accordance with the terms
established for such series pursuant to Section 2.01.
SECTION 3.02. Notice of Redemption.
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Debt
Securities of any series in accordance with the right reserved
so to do, the Company shall, or shall cause the Trustee to,
give notice of such redemption to holders of the Debt
Securities of such series to be redeemed by mailing, first
class postage prepaid, a notice of such redemption not less
than 30 days and not more than 90 days before the date fixed
for redemption of that series to such holders at their last
addresses as they shall appear upon the Security Register
unless a shorter period is specified in the Debt Securities to
be redeemed. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly
given, whether or not the registered holder receives the
notice. In any case, failure duly to give such notice to the
holder of any Debt Security of any series designated for
redemption in whole or in part, or any defect in the notice,
shall not affect the validity of the proceedings for the
redemption of any other Debt Securities of such series or any
other series. In the case of any redemption of Debt
Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance
with any such restriction. Each such notice of redemption
shall specify the date fixed for redemption and the redemption
price at which Debt Securities of that series are to be
redeemed, and shall state that payment of the redemption price
of such Debt Securities to be redeemed will be made at the
Corporate Trust Office, upon presentation and surrender of
such Debt Securities, that interest accrued to the date fixed
for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and
that the redemption is for a sinking fund, if such is the
case. If less than all the Debt Securities of a series are to
be redeemed, the notice to the holders of Debt Securities of
that series to be redeemed in whole or in part shall specify
the particular Debt Securities to be so redeemed. In case any
Debt Security is to be redeemed in part only, the notice that
relates to such Debt Security shall state the portion of the
principal amount thereof to be redeemed, and shall state that
on and after the redemption date, upon surrender of such Debt
Security, a new Debt Security
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or Debt Securities of such series in principal amount equal to
the unredeemed portion thereof will be issued.
(b) If less than all the Debt Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days'
notice in advance of the date fixed for redemption as to the
aggregate principal amount of Debt Securities of the series to
be redeemed, and thereupon the Trustee shall select, by lot or
in such other manner as it shall deem appropriate and fair in
its discretion and that may provide for the selection of a
portion or portions (equal to [twenty-five U.S. dollars ($25)]
or any integral multiple thereof) of the principal amount of
such Debt Securities of a denomination larger than $25, the
Debt Securities to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Debt
Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its President
or any Vice President, instruct the Trustee or any paying
agent to call all or any part of the Debt Securities of a
particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such
notice to be in the name of the Company or its own name as the
Trustee or such paying agent may deem advisable. In any case
in which notice of redemption is to be given by the Trustee or
any such paying agent, the Company shall deliver or cause to
be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register,
transfer books or other records, or suitable copies or
extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required
under the provisions of this Section.
SECTION 3.03. Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Debt Securities or portions
of Debt Securities of the series to be redeemed specified in
such notice shall become due and payable on the date and at
the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for
redemption, and interest on such Debt Securities or portions
of Debt Securities shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the
payment of such redemption price and accrued interest with
respect to any such Debt Security or portion thereof. On
presentation and surrender of such Debt Securities on or after
the date fixed for redemption at the place of payment
specified in the notice, said Debt Securities shall be paid
and redeemed at the applicable redemption price for such
series, together with interest accrued thereon to the date
fixed for redemption (but if the date fixed
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for redemption is an Interest Payment Date, the interest
installment payable on such date shall be payable to the
registered holder at the close of business on the applicable
record date pursuant to Section 2.03).
(b) Upon presentation of any Debt Security of such series that is
to be redeemed in part only, the Company shall execute and the
Trustee shall authenticate and the office or agency where the
Debt Security is presented shall deliver to the holder
thereof, at the expense of the Company, a new Debt Security or
Debt Securities of the same series, of authorized
denominations in principal amount equal to the unredeemed
portion of the Debt Security so presented.
SECTION 3.04. Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be
applicable to any sinking fund for the retirement of Debt Securities of a
series, except as otherwise specified as contemplated by Section 2.01 for Debt
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Debt 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 Debt Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of Debt Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 3.05. Each sinking
fund payment shall be applied to the redemption of Debt Securities of any
series as provided for by the terms of Debt Securities of such series.
SECTION 3.05. Satisfaction of Sinking Fund Payments with Debt Securities.
The Company (i) may deliver Outstanding Debt Securities of a
series (other than any Debt Securities previously called for redemption) and
(ii) may apply as a credit Debt Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of
such Debt Securities as provided for by the terms of such series, provided that
such Debt Securities have not been previously so credited. Such Debt
Securities shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Debt Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
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SECTION 3.06. Redemption of Debt Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any series of Debt Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Debt
Securities of that series pursuant to Section 3.05 and the basis for such
credit and will, together with such Officers' Certificate, deliver to the
Trustee any Debt Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date, the Trustee shall select the Debt
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 3.02. Such notice having been duly given, the redemption of such
Debt Securities shall be made upon the terms and in the manner stated in
Section 3.03.
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid
the principal of (and premium, if any) and interest on the Debt Securities of
that series at the time and place and in the manner provided herein and
established with respect to such Debt Securities.
SECTION 4.02. Maintenance of Office or Agency.
So long as any series of the Debt Securities remain
Outstanding, the Company agrees to maintain an office or agency with respect to
each such series and at such other location or locations as may be designated
as provided in this Section 4.02, where (i) Debt Securities of that series may
be presented for payment, (ii) Debt Securities of that series may be presented
as hereinabove authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the Debt Securities of
that series and this Indenture may be given or served, such designation to
continue with respect to such office or agency until the Company shall, by
written notice signed by its President or a Vice President and delivered to the
trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, notices and demands.
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SECTION 4.03. Paying Agents.
(a) If the Company shall appoint one or more paying agents for all
or any series of the Debt Securities, other than the Trustee,
the Company will cause each such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this
Section:
(1) that it will hold all sums held by it as such agent
for the payment of the principal of (and premium, if
any) or interest on the Debt Securities of that
series (whether such sums have been paid to it by the
Company or by any other obligor of such Debt
Securities) in trust for the benefit of the Persons
entitled thereto;
(2) that it will give the Trustee notice of any failure
by the Company to make any payment of the principal
of (and premium, if any) or interest on the Debt
Securities of that series when the same shall be due
and payable;
(3) that it will, at any time during the continuance of
any failure referred to in the preceding paragraph
(a)(2) above, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent
as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect
to any series of the Debt Securities, it will on or before
each due date of the principal of (and premium, if any) or
interest on Debt Securities of that series, set aside,
segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and
premium, if any) or interest so becoming due on Debt
Securities of that series until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any
failure by it to take such action. Whenever the Company shall
have one or more paying agents for any series of Debt
Securities, it will, prior to each due date of the principal
of (and premium, if any) or interest on any Debt Securities of
that series, deposit with the paying agent a sum sufficient to
pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of this action or failure so to
act.
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Notwithstanding anything in this Section to the contrary, (i)
the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 11.05, and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums to be held by
the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by any
paying agent to the Trustee, such paying agent shall be released from all
further liability with respect to such money.
SECTION 4.04. Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.05. Compliance with Consolidation Provisions.
The Company will not, while any of the Debt Securities remain Outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article X are complied with.
SECTION 4.06. Limitation on Dividends.
(a) If Debt Securities are issued to an Illinois Power Trust or a
trustee of such trust in connection with the issuance of Trust
Securities by such Illinois Power Trust and (i) there shall
have occurred any event that would constitute an Event of
Default or (ii) the Company shall be in default with respect
to its payment or any obligations under the Preferred
Securities Guarantee or Common Securities Guarantee relating
to such Trust Securities, then (x) the Company shall not
declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase or make a liquidation payment
with respect to, any of its capital stock, provided, however,
the Company may declare and pay a stock dividend where the
dividend stock is the same stock as that on which the dividend
is being paid, (y) the Company shall not make any payment of
interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including
guarantees) issued by the Company which rank pari passu with
or junior to such Debt Securities and (z) the Company shall
not make guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Securities Guarantee).
(b) If Debt Securities are issued to an Illinois Power Trust or a
trustee of such trust in connection with the issuance of Trust
Securities by such Illinois Power Trust and the Company shall
have given notice of its election to defer
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payments of interest on such Debt Securities by extending the
interest payment period as provided in any indenture
supplemental hereto and such period, or any extension thereof,
shall be continuing, then (i) the Company shall not declare or
pay any dividend, or make any distributions with respect to,
or redeem, purchase or make a liquidation payment with respect
to, any of its capital stock, provided, however, the Company
may declare and pay a stock dividend where the dividend stock
is the same stock as that on which the dividend is being paid,
(ii) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by
the Company which rank pari passu with or junior to such Debt
Securities and (iii) the Company shall not make any guarantee
payments with respect to the foregoing (other than pursuant to
the Preferred Securities Guarantee).
SECTION 4.07. Covenants as to Illinois Power Trusts.
In the event Debt Securities are issued to an Illinois Power
Trust in connection with the issuance of Trust Securities by such trust, for so
long as such Trust Securities remain outstanding, the Company will (i) maintain
100% direct or indirect ownership of the Common Securities of such trust;
provided, however, that any permitted successor of the Company under this
Indenture may succeed to the Company's ownership of the Common Securities, (ii)
not cause, as sponsor of such trust, or permit, as holder of Common Securities
of such trust, the dissolution, winding-up or termination of such trust, except
in connection with a distribution of Debt Securities as provided in the
Declaration and in connection with certain mergers, consolidations or
amalgamations permitted by the Declaration and (iii) use its reasonable efforts
to cause such trust (a) to remain a business trust, except in connection with a
distribution of Debt Securities, the redemption of all of the Trust Securities
of such Illinois Power Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Illinois Power
Trust, and (b) to otherwise continue to be classified for United States federal
income tax purposes as a grantor trust.
SECTION 4.08. Corporate Existence.
The Company will, subject to the provisions of Article X, at
all times maintain its corporate existence and right to carry on business and
will duly procure all renewals and extensions thereof, and, to the extent
necessary or desirable in the operation of its business, will use its best
efforts to maintain, preserve and renew all of its rights, powers, privileges
and franchises.
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ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Names and Addresses of
Securityholders.
The Company will furnish or cause to be furnished to the
Trustee (a) on a quarterly basis on each regular record date (as defined in
Section 2.03) a list, in such form as the Trustee may reasonably require, of
the names and addresses of the holders of each series of Debt Securities as of
such regular record date, provided that the Company shall not be obligated to
furnish or cause to furnish such list at any time that the list shall not
differ in any respect from the most recent list furnished to the Trustee by the
Company and (b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished; provided, however, that in either case, no such list
need be furnished for any series for which the Trustee shall be the Security
Registrar.
SECTION 5.02. Preservation Of Information; Communications With
Securityholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and
addresses of the holders of Debt Securities contained in the
most recent list furnished to it as provided in Section 5.01
and as to the names and addresses of holders of Debt
Securities received by the Trustee in its capacity as Security
Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b)
of the Trust Indenture Act with other Securityholders with
respect to their rights under this Indenture or under the Debt
Securities.
SECTION 5.03. Reports By the Company.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the
Company may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the
Company is not required to file information,
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documents or reports pursuant to either of such sections, then
to file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic
information, documents and reports that may be required
pursuant to Section 13 of the Exchange Act, in respect of a
security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules
and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations
prescribed from to time by the Commission, such additional
information, documents and reports with respect to compliance
by the Company with the conditions and covenants provided for
in this Indenture as may be required from time to time by such
rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable overnight delivery service
that provides for evidence of receipt, to the Securityholders,
as their names and addresses appear upon the Security
Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the
Commission.
SECTION 5.04. Reports by the Trustee.
(a) On or before July 15 in each year in which any of the Debt
Securities are Outstanding, the Trustee shall transmit by
mail, first class postage prepaid, to the Securityholders, as
their names and addresses appear upon the Security Register, a
brief report dated as of the preceding May 15, if and to the
extent required under Section 313(a) of the Trust Indenture
Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with
the Company, with each stock exchange upon which any Debt
Securities are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any
Debt Securities become listed on any stock exchange.
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default.
(a) Whenever used herein with respect to Debt Securities of a
particular series, "Event of Default" means any one or more of
the following events that has occurred and is continuing:
(1) the Company defaults in the payment of any
installment of interest upon any of the Debt
Securities of that series, as and when the same shall
become due and payable, and continuance of such
default for a period of 30 days; provided, however ,
that a valid extension of an interest payment period
by the Company in accordance with the terms of any
indenture supplemental hereto, shall not constitute a
default in the payment of interest for this purpose;
(2) the Company defaults in the payment of the principal
of (or premium, if any, on) any of the Debt
Securities of that series as and when the same shall
become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any
payment required by any sinking or analogous fund
established with respect to that series;
(3) the Company fails to observe or perform any other of
its covenants or agreements with respect to that
series contained in this Indenture or otherwise
established with respect to that series of Debt
Securities pursuant to Section 2.01 for a period of
90 days after the date on which written notice of
such failure, requiring the same to be remedied and
stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by
the Trustee, by registered or certified mail, or to
the Company and the Trustee by the holders of at
least 25% in principal amount of the Debt Securities
of that series at the time Outstanding;
(4) the Company, pursuant to or within the meaning of any
Bankruptcy Law, (i) commences a voluntary case, (ii)
consents to the entry of an order for relief against
it in an involuntary case, (iii) consents to the
appointment of a Custodian of it or for all or
substantially all of its property or (iv) makes a
general assignment for the benefit of its creditors;
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(5) a court of competent jurisdiction enters an order
under any Bankruptcy Law that (i) is for relief
against the Company in an involuntary case, (ii)
appoints a Custodian of the Company for all or
substantially all of its property, or (iii) orders
the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days; or
(6) in the event Debt Securities are issued to an
Illinois Power Trust or other trust of the Company in
connection with the issuance of Trust Securities by
such trust, such trust shall have voluntarily or
involuntarily dissolved, wound-up its business or
otherwise terminated its existence except in
connection with (i) the distribution of Debt
Securities to holders of Trust Securities in
liquidation of their interests in such trust, (ii)
the redemption of all outstanding Trust Securities of
such trust, and (iii) mergers, consolidations or
amalgamations, each as permitted by the Declaration
of such trust.
(b) If an Event of Default described in clauses 1, 2, 3 or 6 of
this Section 6.01 with respect to Debt Securities of any
series at the time outstanding occurs and is continuing,
unless the principal of all the Debt Securities of that series
shall have already become due and payable, either the Trustee
or the holders of not less than 25% in aggregate principal
amount of the Debt Securities of that series then Outstanding
hereunder, by notice in writing to the Company (and to the
Trustee, if given by such Securityholders), may declare the
principal of all the Debt Securities of that series to be due
and payable immediately, and upon any such declaration the
same shall become and be immediately due and payable,
notwithstanding anything contained in this Indenture or in the
Debt Securities of that series or established with respect to
that series pursuant to Section 2.01 to the contrary. If an
Event of Default specified in clause (4) or (5) of this
Section 6.01 occurs or is continuing, then the principal
amount of all the Debt Securities shall ipso facto become and
be immediately due and payable without any declaration or
other act on the part of the Trustee or any Securityholder.
At any time after the principal of the Debt Securities of that
series shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided, the
holders of 66 2/3% in aggregate principal amount of the Debt
Securities of that series then Outstanding hereunder, by
written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if: (i) the
Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon
all the Debt Securities of that series and the principal of
(and premium, if any, on) any and all Debt Securities of that
series that shall have become due otherwise than by
acceleration (with interest upon such principal and
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premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of
interest, at the rate per annum expressed in the Debt
Securities of that series to the date of such payment or
deposit) and the amount payable to the Trustee under Section
7.06, and (ii) any and all Events of Default with respect to
such series, other than the nonpayment of principal on Debt
Securities of that series that shall not have become due by
their terms, shall have been remedied or waived as provided in
Section 6.06. No such rescission and annulment shall extend
to or shall affect any subsequent default or impair any right
consequent thereon.
(c) In case the Trustee shall have proceeded to enforce any right
with respect to Debt Securities of that series under this
Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and
powers of the Company and the Trustee shall continue as though
no such proceedings had been taken.
SECTION 6.02. Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Company covenants that (1) in case it shall default in the
payment of any installment of interest on any of the Debt
Securities of a series, or any payment required by any sinking
or analogous fund established with respect to that series as
and when the same shall have become due and payable, and such
default shall have continued for a period of 90 days, or (2)
in case it shall default in the payment of the principal of
(or premium, if any, on) any of the Debt Securities of a
series when the same shall have become due and payable,
whether upon maturity of the Debt Securities of a series or
upon redemption or upon declaration or otherwise, then, upon
demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Debt Securities of that
series, the whole amount that then shall have become due and
payable on all such Debt Securities for principal (and
premium, if any) or interest, or both, as the case may be,
with interest upon the overdue principal (and premium, if any)
and (to the extent that payment of such interest is
enforceable under applicable law and, if the Debt Securities
are held by an Illinois Power Trust, without duplication of
any other amounts paid by such trust in respect thereof) upon
overdue installments of interest at the rate per annum
expressed in the Debt Securities of that series; and, in
addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection and the amount
payable to the Trustee under Section 7.06.
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(b) If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute
any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and
may enforce any such judgment or final decree against the
Company or other obligor upon the Debt Securities of that
series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of
the Company or other obligor upon the Debt Securities of that
series, wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement,
composition or judicial proceedings affecting the Company or
its creditors or property, the Trustee shall have power to
intervene in such proceedings and take any action therein that
may be permitted by the court and shall (except as may be
otherwise provided by law) be entitled to file such proofs of
claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of
the holders of Debt Securities of such series allowed for the
entire amount due and payable by the Company under the
Indenture at the date of institution of such proceedings and
for any additional amount that may become due and payable by
the Company after such date, and to collect and receive any
moneys or other property payable or deliverable on any such
claim, and to distribute the same after the deduction of the
amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the holders of Debt Securities
of such series to make such payments to the Trustee, and, in
the event that the Trustee shall consent to the making of such
payments directly to such Securityholders, to pay to the
Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect
to Debt Securities of that series, may be enforced by the
Trustee without the possession of any of such Debt Securities,
or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment shall, after
provision for payment to the Trustee of any amounts due under
Section 7.06, be for the ratable benefit of the holders of the
Debt Securities of such series.
In case of an Event of Default, 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
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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.
Nothing contained herein shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Debt Securities of that 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.
SECTION 6.03. Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article
with respect to a particular series of Debt Securities 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 premium, if any) or
interest, upon presentation of the Debt Securities of that series, and notation
thereon of the payment, if only partially paid, and upon surrender thereof if
fully paid:
FIRST: To the payment of costs and expenses of collection and
of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article XIV; and
THIRD: To the payment of the amounts then due and unpaid upon
Debt Debt Securities of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Debt Securities for principal (and premium,
if any) and interest, respectively.
SECTION 6.04. Limitation on Suits.
No holder of any Security of any series shall have any right
by virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless (i) such holder previously shall have given to
the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Debt Securities of such series specifying such
Event of Default, as hereinbefore provided; (ii) the holders of not less than
25% in aggregate principal amount of the Debt Securities of such series then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as trustee hereunder; (iii) such
holder or holders shall have offered to the Trustee such
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reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; (iv) the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding; and (v) during such 60
day period, the holders of not less than 66 2/3% in principal amount of the
Debt Securities of that series do not give the Trustee a direction inconsistent
with the request.
Notwithstanding anything contained herein to the contrary, any
other provisions of this Indenture, the right of any holder of any Security to
receive payment of the principal of (and premium, if any) and interest on such
Security, as therein provided, on or after the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without
the consent of such holder, and by accepting a Security hereunder it is
expressly understood, intended and covenanted by the taker and holder of every
Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Debt Securities of such series shall have any
right in any manner whatsoever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of the holders of any
other of such Debt 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 Debt Securities of such series. 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 6.05. Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and
remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any other powers and
remedies available to the Trustee or the holders of the Debt
Securities, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements
contained in this Indenture or otherwise established with
respect to such Debt Securities.
(b) No delay or omission of the Trustee or of any holder of any of
the Debt Securities 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 default or an
acquiescence therein; and, subject to the provisions of
Section 6.04, every power and remedy given by this Article or
by law to the Trustee or the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
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SECTION 6.06. Control by Securityholders.
The holders of not less than 66 2/3% in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in
accordance with Section 8.04, shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that such direction shall not be in conflict with
any rule of law or with this Indenture or be unduly prejudicial to the rights
of holders of Debt Securities of any other series at the time Outstanding
determined in accordance with Section 8.04. Subject to the provisions of
Section 7.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so directed would
involve the Trustee in personal liability. The holders of not less than 66
2/3% in aggregate principal amount of the Debt Securities of any series at the
time Outstanding affected thereby, determined in accordance with Section 8.04,
may on behalf of the holders of all of the Debt Securities of such series waive
any past default in the performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series and its
consequences, except (i) a default in the payment of the principal of, or
premium, if any, or interest on, any of the Debt Securities of that series as
and when the same shall become due by the terms of such Debt Securities
otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal and any
premium has been deposited with the Trustee (in accordance with Section
6.01(c)) or (ii) a default in the covenants contained in Section 4.06(b). Upon
any such waiver, the default covered thereby shall be deemed to be cured for
all purposes of this Indenture and the Company, the Trustee and the holders of
the Debt Securities of such series 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.
SECTION 6.07. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Debt Securities by such holder's 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 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, holding more than 10% in aggregate principal amount
of the Outstanding Debt Securities of any series, or to any suit instituted by
any Securityholder for the enforcement of the payment of the principal of (or
premium, if any)
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or interest on any Security of such series, on or after the respective due
dates expressed in such Security or established pursuant to this Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
with respect to the Debt Securities of a series and after the
curing of all Events of Default with respect to the Debt
Securities of that series that may have occurred, shall
undertake to perform with respect to the Debt Securities of
such series such duties and only such duties as are
specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the
Trustee. In case an Event of Default with respect to the Debt
Securities of a series has occurred (that has not been cured
or waived), the Trustee shall exercise with respect to Debt
Securities of that series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) no provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct,
except that:
(1) prior to the occurrence of an Event of Default with
respect to the Debt Securities of a series and after
the curing or waiving of all such Events of Default
with respect to that series that may have occurred:
(A) the duties and obligations of the Trustee
shall, with respect to the Debt Securities of
such series, be determined solely by the
express provisions of this Indenture, and the
Trustee shall not be liable with respect to
the Debt Securities of such series except for
the performance of such duties and
obligations as are specifically set forth in
this Indenture, and no implied covenants or
obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to
the Debt Securities of such series
conclusively rely, as to the truth of the
statements and the correctness of the
opinions expressed therein, upon any
certificates or opinions furnished to the
Trustee and conforming to the requirements of
this Indenture; but in the case of any such
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certificates or opinions that 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
requirement of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee, was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good
faith in accordance with the direction of the holders
of not less than a majority in principal amount of
the Debt Securities of any series at the time
Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with
respect to the Debt Securities of that series; and
(4) None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability
in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of
such funds or liability is not reasonably assured to
it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured
to it.
SECTION 7.02. Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security or other paper or
document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
Resolution or Officers'(unless other evidence in respect
thereof is specifically prescribed herein);
(c) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and
complete authorization and
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protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders,
pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with
respect to a series of the Debt Securities (that has not been
cured or waived) to exercise with respect to Debt Securities
of that series such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill
in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(e) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to
be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security, or other papers or
documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the
Outstanding Debt Securities of the particular series affected
thereby (determined as provided in Section 8.04); provided,
however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such
costs, expenses or liabilities as a condition to so
proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand;
(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 and the Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
(h) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence be herein
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specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate; and
(i) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it.
SECTION 7.03. Trustee Not Responsible for Recitals or Issuance of Debt
Securities.
(a) The recitals contained herein and in the Debt Securities shall
be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debt Securities or of
the proceeds of such Debt Securities, or for the use or
application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any
moneys received by any paying agent other than the Trustee.
SECTION 7.04. May Hold Debt Securities.
The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of Debt
Securities with the same rights it would have if it were not Trustee, paying
agent or Security Registrar.
SECTION 7.05. Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys
received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder
except such as it may agree with the Company to pay thereon.
SECTION 7.06. Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation
(which shall not be limited by any provision of law in regard
to the compensation of a trustee of an
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express trust), as the Company and the Trustee may from time
to time agree in writing, for all services rendered by it in
the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of
the Trustee, and, except as otherwise expressly provided
herein, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of
its counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants
to indemnify the Trustee (and its officers, agents, directors
and employees) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith
on the part of the Trustee and arising out of or in connection
with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim
of liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse
the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a lien prior to
that of the Debt 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 Debt
Securities.
SECTION 7.07. Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action 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 to be taken by it under the provisions of this
Indenture upon the faith thereof.
SECTION 7.08. Qualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
and the Company shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
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SECTION 7.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Debt
Securities issued hereunder which shall at all times be a corporation organized
and doing business under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a corporation or other
Person permitted to act as trustee by the Commission, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least fifty million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any
time resign with respect to the Debt Securities of one or more
series by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class
postage prepaid, to the Securityholders of such series, as
their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Debt
Securities of 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 resigning Trustee and one
copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with
respect to Debt Securities of such series, or any
Securityholder of that series who has been a bona fide holder
of a Debt Security or Debt Securities for at least six months
may, subject to the provisions of Section 6.08, on behalf of
himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court
may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
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(1) the Trustee shall fail to comply with the provisions
of subsection (a) of Section 7.08 after written
request therefor by the Company or by any
Securityholder who has been a bona fide holder of a
Debt Security or Debt Securities for at least six
months; or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.09 and shall fail to
resign after written request therefor by the Company
or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or
commence a voluntary bankruptcy proceeding, or a
receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer
shall take charge or control of the Trustee or of its
property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in
any such case, the Company may remove the Trustee
with respect to all Debt Securities and appoint a
successor trustee 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 the provisions
of Section 6.08, unless the Trustee's duty to resign
is stayed as provided herein, any Securityholder who
has been a bona fide holder of a Debt Security or
Debt Securities for at least six months may, on
behalf of that holder and all others similarly
situated, petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint
a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debt Securities of any series at the time Outstanding may at
any time remove the Trustee with respect to such series by so
notifying the Trustee and the Company and may appoint a
successor Trustee for such series with the consent of the
Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debt Securities of a
series pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may
be appointed with respect to the Debt Securities of one or
more series or all of such series, and at any time there shall
be only one Trustee with respect to the Debt Securities of any
particular series.
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SECTION 7.11. Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee
with respect to all Debt Securities, every such successor
trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and
such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor trustee
all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor trustee
with respect to the Debt Securities of one or more (but not
all) series, the Company, the retiring Trustee and each
successor trustee with respect to the Debt Securities of one
or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the
rights, powers, trusts and duties of theretiring Trustee with
respect to the Debt Securities of that or those series to
which the appointment of such successor trustee relates, (2)
shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debt
Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts 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, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any
other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee
hereunder; and upon the execution and delivery of such
supplemental indenture, the resignation or removal of the
retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Debt
Securities of that or those series to which the appointment of
such successor trustee relates have no further responsibility
for the exercise of rights and powers or for the performance
of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee,
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without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debt Securities of that
or those series to which the appointment of such successor
trustee relates; but, on request of the Company or any
successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to
the Debt Securities of that or those series to which the
appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such
rights, powers and trusts referred to in paragraph (a) or (b)
of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be
qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of
the succession of such trustee hereunder by mail, first class
postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance
of appointment by the successor trustee, the successor
trustee shall cause such notice to be transmitted at the
expense of the Company.
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Debt Securities
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Debt
Securities so authenticated with the same effect as if such successor trustee
had itself authenticated such Debt Securities.
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SECTION 7.13. Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of
a majority or specified percentage in aggregate principal amount of the Debt
Securities of a particular series may take any action (including the making of
any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage of that series have
joined therein may be evidenced by any instrument or any number of instruments
of similar tenor executed by such holders of Debt Securities of that series in
Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders (entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action) may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Debt Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding Debt Securities of
that series shall be computed as of the record date; provided, however, that no
such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 8.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the
execution of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any Person of
any of the Debt Securities shall be sufficient if made in the following manner:
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(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable
to the Trustee.
(b) The ownership of Debt Securities shall be proved by the Debt
Security Register of such Debt Securities or by a certificate
of the Debt Security Registrar thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03. Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of
any Debt Security, the Company, the Trustee, any paying agent and any Debt
Security Registrar may deem and treat the Person in whose name such Debt
Security shall be registered upon the books of the Company as the absolute
owner of such Debt Security (whether or not such Debt Security shall be overdue
and notwithstanding any notice of ownership or writing thereon made by anyone
other than the Debt Security Registrar) for the purpose of receiving payment of
or on account of the principal of, premium, if any, and (subject to Section
2.03) interest on such Debt Security and for all other purposes; and neither
the Company nor the Trustee nor any paying agent nor any Debt Security
Registrar shall be affected by any notice to the contrary.
SECTION 8.04. Certain Debt Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate
principal amount of Debt Securities of a particular series have concurred in
any direction, consent waiver under this Indenture, the Debt Securities of that
series that are owned by the Company or any other obligor on the Debt
Securities of that series or by any Person directly or indirectly controlling
or controlled by or under common control with the Company or any other obligor
on the Debt Securities of that series 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 Debt Securities of such series that the
Trustee actually knows are so owned shall be so disregarded. The Debt
Securities so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right so to act with respect to
such Debt Securities and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
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SECTION 8.05. Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the
holders of a majority or specified percentage in aggregate principal amount of
the Debt Securities of a particular series in connection with such action, any
holder of a Debt Security of that series that is shown by the evidence to be
included in the Debt Securities the holders of which have consented to such
action may, by filing written notice with the Trustee, and upon proof of
holding as provided in Section 8.02, revoke such action so far as concerns such
Debt Security. Except as aforesaid, any such action taken by the holder of any
Debt Security shall be conclusive and binding upon such holder and upon all
future holders and owners of such Debt Security, and of any Debt Security
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debt Security. Any action taken by the holders of a majority or
specified percentage in aggregate principal amount of the Debt Securities of a
particular series in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all the Debt Securities of
that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without the Consent of
Securityholders.
In addition to any supplemental indenture otherwise authorized
by this Indenture, the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Securityholders, for one or more of the following
purposes:
(1) to cure any ambiguity, defect or inconsistency herein or in
the Debt Securities of any series;
(2) to comply with Article X;
(3) to provide for uncertificated Debt Securities in addition to
or in place of certificated Debt Securities;
(4) to add to the covenants of the Company for the benefit of the
holders of all or any series of Debt Securities (and if such
covenants are to be for the benefit of less than all series of
Debt Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the
Company;
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(5) to add to, delete from, or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes
of issue, authentication and delivery of Debt Securities, as
herein set forth;
(6) to make any change that does not adversely affect the rights
of any Securityholder in any material respect; or
(7) to provide for the issuance of and establish the form and
terms and conditions of the Debt Securities of any series as
provided in Section 2.01, to establish the form of any
certifications required to be furnished pursuant to the terms
of this Indenture or any series of Debt Securities, or to add
to the rights of the holders of any series of Debt Securities.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Debt Securities at the time Outstanding
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of
the holders of not less than 66 2/3% in aggregate principal amount of the Debt
Securities of each series affected by such supplemental indenture or indentures
at the time Outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) 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 not
covered by Section 9.01 the rights of the holders of the Debt Securities of
such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Debt Security then
Outstanding and affected thereby, (i) extend the fixed maturity of any Debt
Securities of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the holder of each
Debt Security so affected or (ii) reduce the aforesaid percentage of Debt
Securities, the holders of which are required to consent to any such
supplemental indenture.
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It shall not be necessary for the consent of the
Securityholders of any series affected thereby 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.
SECTION 9.03. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debt Securities of the series 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 9.04. Debt Securities Affected by Supplemental Indentures.
Debt Securities of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, may
bear a notation in form approved by the Company, provided such form meets the
requirements of any Securities exchange upon which such series may be listed,
as to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Debt Securities of that series so modified as to
conform, in the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any, such supplemental indenture
may be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Debt Securities of that series then Outstanding.
SECTION 9.05. Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
required to consent thereto as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to enter into such supplemental
indenture. The Trustee, subject to the provisions of Section 7.01, may receive
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and conforms
to, the terms of this Article and that it is proper for the Trustee under the
provisions of this Article to join in the execution thereof.
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Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice, setting
forth in general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Debt Security Register. Any failure of the Trustee to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01. Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the Debt
Securities shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or its successor
or successors) authorized to acquire and operate the same; provided, however,
the Company hereby covenants and agrees that, upon any such consolidation,
merger, sale, conveyance, transfer or other disposition, the due and punctual
payment of the principal of (premium, if any) and interest on all of the Debt
Securities of all series in accordance with the terms of each series, according
to their tenor and the due and punctual performance and observance of all the
covenants and conditions of this Indenture with respect to each series or
established with respect to such series pursuant to Section 2.01 to be kept or
performed by the Company, shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act, as then in
effect) satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired such
property.
SECTION 10.02. Successor Corporation Substituted.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of,
premium, if any, and interest on all of the Debt Securities of
all series Outstanding and the due and punctual performance of
all of the covenants and conditions of this Indenture or
established with respect to each series of the Debt
Securities pursuant to Section 2.01 to be performed by the
Company, with respect to each series, such successor
corporation shall succeed
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to and be substituted for the Company, with the same effect
as if it had been named as the Company herein.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition, such changes in phraseology and
form (but not in substance) may be made in the Debt Securities
thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the Debt
Securities shall prevent the Company from merging into itself
or acquiring by purchase or otherwise all or any part of the
property of any other Person (whether or not affiliated with
the Company).
SECTION 10.03. Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other disposition, and any
such assumption, comply with the provisions of this Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Debt Securities of a series theretofore
authenticated (other than any Debt Securities that shall have been destroyed,
lost or stolen and that shall have been replaced or paid as provided in Section
2.07 and Debt Securities for whose payment money or Governmental Obligations
have theretofore been deposited in trust or segregated and held in trust by the
Company (and thereupon repaid to the Company or discharged from such trust, as
provided in Section 11.05)); or (b) all such Debt Securities of a particular
series 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 the
Company shall deposit or cause to be deposited with the Trustee as trust funds
the entire amount in moneys or Governmental Obligations 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 at maturity or upon redemption all Debt
Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder with respect to such series by the Company; then if the
Company has delivered
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to the Trustee an Opinion of Counsel based on the fact that (x) the Company 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
United States federal income tax law, in either case to the effect that, and
such opinion shall confirm that, the holders of the Debt Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred, this Indenture shall thereupon cease
to be of further effect with respect to such series except for the provisions
of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive
until the date of maturity or redemption date, as the case may be, and Sections
7.06 and 11.05, that shall survive to such date and thereafter, and the
Trustee, on demand of the Company and at the cost and expense of the Company
shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.
SECTION 11.02. Discharge of Obligations.
If at any time all Debt Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the
Company by depositing irrevocably with the Trustee as trust funds the entire
amount in moneys or Governmental Obligations 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 at maturity or
upon redemption under arrangements satisfactory to the Trustee for the giving
of notice of redemption all such Debt Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if the Company shall also pay or cause
to be paid all other sums payable hereunder by the Company with respect to such
series, then after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee then, if the Company has delivered
to the Trustee an Opinion of Counsel based on the fact that (x) the Company 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
United States federal income tax law, in either case to the effect that, and
such opinion shall confirm that, the holders of the Debt Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred, the obligations of the Company,
under this Indenture with respect to such series shall cease to be of further
effect except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02,
4.03, 7.06, 7.10 and 11.05 hereof that shall survive until such Debt Securities
shall mature and be paid. Thereafter, Sections 7.06 and 11.05 shall survive.
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SECTION 11.03. Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the
Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall
be available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the
particular series of Debt Securities for the payment or redemption of which
such moneys or Governmental Obligations have been deposited with the Trustee.
SECTION 11.04. Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this
Indenture, all moneys or Governmental Obligations then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be
paid to the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys or Governmental Obligations.
SECTION 11.05. Repayment to Company.
Any moneys or Governmental Obligations deposited with any
paying agent or the Trustee, or then held by the Company, in trust for payment
of principal of or premium or interest on the Debt Securities of a particular
series that are not applied but remain unclaimed by the holders of such Debt
Securities for at least two years after the date upon which the principal of
(and premium, if any) or interest on such Debt Securities shall have
respectively become due and payable, shall be repaid to the Company on May 31
of each year or (if then held by the Company) shall be discharged from such
trust; and thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental Obligations,
and the holder of any of the Debt Securities entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company
for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. No Recourse.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Debt Security, or for any claim based
thereon or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment
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or penalty or otherwise; it being expressly understood that this Indenture and
the obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, stockholders, officers or directors as such, of the
Company or of any predecessor or successor corporation, or any of them, because
of the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debt Securities or implied herefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debt Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debt Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company shall bind successors
and assigns of the Company, whether so expressed or not.
SECTION 13.02. Actions by Successor.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the corresponding board, committee or officer of any corporation that
shall at the time be the lawful successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of
2/3 (two-thirds) of the Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power
so surrendered shall terminate both as to the Company and as to any successor
corporation.
SECTION 13.04. Notices.
Except as otherwise expressly provided herein, any notice or
demand that by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Debt Securities to or on
the Company may be given or served by being
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deposited first class postage prepaid in a post-office letterbox addressed
(until another address is filed in writing by the Company with the Trustee), as
follows: Illinois Power Company, 000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Treasurer. Any notice, election, request or demand by the
Company or any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the Corporate Trust Office of the Trustee.
SECTION 13.05. Governing Law.
This Indenture and each Debt Security shall be deemed to be a
contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 13.06. Treatment of the Debt Securities as Debt.
It is intended that the Debt Securities will be treated as
indebtedness and not as equity for federal income tax purposes. The provisions
of this Indenture shall be interpreted to further this intention.
SECTION 13.07. Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include (1) a
statement that the Person making such certificate or opinion
has read such covenant or condition; (2) a brief statement as
to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the
opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such Person, such condition
or covenant has been complied with.
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SECTION 13.08. Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a
Board Resolution, and as set forth in an Officers' Certificate, or established
in one or more indentures supplemental to this Indenture, in any case where the
date of maturity of interest or principal of any Debt Security or the date of
redemption of any Debt Security shall not be a Business Day, then payment of
interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of
maturity or redemption, and no interest shall accrue for the period after such
nominal date.
SECTION 13.09. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.10. 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 13.11. Separability.
In case any one or more of the provisions contained in this
Indenture or in the Debt Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Debt Securities, but this Indenture and such Debt
Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of
its respective rights or obligations under this Indenture to a direct or
indirect wholly-owned Subsidiary of the Company, provided that, in the event of
any such assignment, the Company will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
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SECTION 13.13. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Debt
Securities held by an Illinois Power Trust or a trustee of such trust, if the
Property Trustee of such Trust fails to enforce its rights under this Indenture
as the holder of the series of Debt Securities held as the assets of such
Illinois Power Trust, any holder of Preferred Securities may, after a period of
30 days has elapsed from such holder's written request to such Property Trustee
to enforce such rights, institute legal proceedings directly against the
Company to enforce such Property Trustee's rights under this Indenture without
first instituting any legal proceedings against such Property Trustee or any
other person or entity.
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. Subordination Terms.
The payment by the Company of the principal of, premium, if
any, and interest on any series of Debt Securities issued hereunder shall be
subordinated to the extent set forth in an indenture supplemental hereto
relating to such Debt Securities.
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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 the day and year first above written.
ILLINOIS POWER COMPANY
By:_____________________________________
Name:
Title:
Attest: __________________________
Secretary
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By:_____________________________________
Name:
Title:
Attest: __________________________
Secretary
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STATE OF ILLINOIS)
COUNTY OF MACON ) SS
On the _____ day of _______________, 1995, before me personally came
_______________ to be known, who, being by me duly sworn, did depose and say
that he is the _____________ of ILLINOIS POWER COMPANY 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 the 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.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of
office this _____ day of _______________, 1995.
________________________________________
Notary Public
STATE OF _________)
COUNTY OF _______ ) SS
On the _____ day of _______________, 1995, before me personally came
_______________ to be known, who, being by me duly sworn, did depose and say
that he is the _____________ of WILMINGTON TRUST COMPANY 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 the 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.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of
office this _____ day of _______________, 1995.
________________________________________
Notary Public
56
