ILLINOIS POWER COMPANY,
Issuer
AND
WILMINGTON TRUST COMPANY,
Trustee
INDENTURE
Dated as of January 1, 1996
Subordinated Debt Securities
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. 9
SECTION 2.04. Execution and Authentication. 10
SECTION 2.05. Registration of Transfer and Exchange. 11
SECTION 2.06. Temporary Securities. 13
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Debt Securities. 13
SECTION 2.08. Cancellation. 14
SECTION 2.09. Benefits of Indenture. 14
SECTION 2.10. Authenticating Agent. 15
SECTION 2.11. Global Securities. 15
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption. 17
SECTION 3.02. Notice of Redemption. 17
SECTION 3.03. Payment Upon Redemption. 18
SECTION 3.04. Sinking Fund. 19
SECTION 3.05. Satisfaction of Sinking Fund Payments
with Debt Securities. 19
SECTION 3.06. Redemption of Debt Securities for Sinking Fund. 20
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest. 20
SECTION 4.02. Maintenance of Office or Agency. 20
SECTION 4.03. Paying Agents. 21
SECTION 4.04. Appointment to Fill Vacancy in Office of Trustee. 22
SECTION 4.05. Compliance with Consolidation Provisions. 22
SECTION 4.06. Limitation on Dividends. 22
SECTION 4.07. Covenants as to Illinois Power Trusts. 23
SECTION 4.08. Corporate Existence. 23
ARTICLE V
SECURITY HOLDERS, 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. 24
SECTION 5.03. Reports By the Company. 24
SECTION 5.04. Reports by the Trustee. 25
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. 30
SECTION 6.05. Rights and Remedies Cumulative; Delay or Omission
Not Waiver. 31
SECTION 6.06. Control by Securityholders. 31
SECTION 6.07. Undertaking to Pay Costs. 32
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities of Trustee. 32
SECTION 7.02. Certain Rights of Trustee. 34
SECTION 7.03. Trustee Not Responsible for Recitals or
Issuance of Debt Securities. 35
SECTION 7.04. May Hold Debt Securities. 36
SECTION 7.05. Moneys Held in Trust. 36
SECTION 7.06. Compensation and Reimbursement. 36
SECTION 7.07. Reliance on Officers' Certificate. 37
SECTION 7.08. Qualification; Conflicting Interests. 37
SECTION 7.09. Corporate Trustee Required; Eligibility. 37
SECTION 7.10. Resignation and Removal; Appointment of Successor. 37
SECTION 7.11. Acceptance of Appointment By Successor. 39
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business. 39
SECTION 7.13. Preferential Collection of Claims Against the Company. 41
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders. 41
SECTION 8.02. Proof of Execution by Securityholders. 42
SECTION 8.03. Who May be Deemed Owners. 42
SECTION 8.04. Certain Debt Securities Owned by Company Disregarded. 42
SECTION 8.05. Actions Binding on Future Securityholders. 43
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without the Consent of
Securityholders. 43
SECTION 9.02. Supplemental Indentures With Consent of
Securityholders. 44
SECTION 9.03. Effect of Supplemental Indentures. 45
SECTION 9.04. Debt Securities Affected by Supplemental Indentures. 45
SECTION 9.05. Execution of Supplemental Indentures. 45
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01. Company May Consolidate, Etc. 46
SECTION 10.02. Successor Corporation Substituted. 46
SECTION 10.03. Evidence of Consolidation, Etc. to Trustee. 47
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture. 47
SECTION 11.02. Discharge of Obligations. 48
SECTION 11.03. Deposited Moneys to be Held in Trust. 49
SECTION 11.04. Payment of Moneys Held by Paying Agents. 49
SECTION 11.05. Repayment to Company. 49
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. No Recourse. 50
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Effect on Successors and Assigns. 50
SECTION 13.02. Actions by Successor. 50
SECTION 13.03. Surrender of Company Powers. 50
SECTION 13.04. Notices. 51
SECTION 13.05. Governing Law. 51
SECTION 13.06. Treatment of the Debt Securities as Debt. 51
SECTION 13.07. Compliance Certificates and Opinions. 51
SECTION 13.08. Payments on Business Days. 52
SECTION 13.09. Conflict with Trust Indenture Act. 52
SECTION 13.10. Counterparts. 52
SECTION 13.11. Separability. 52
SECTION 13.12. Assignment. 52
SECTION 13.13. Acknowledgment of Rights. 53
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. Subordination Terms. 53
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
Note: This Cross-Reference Table shall not, for any purpose,
be deemed to be part of the Indenture and shall not have any
bearing on the interpretation of its terms or provisions.
THIS INDENTURE, dated as of January 1, 1996, 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,
(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 Title 11, United States 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 Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Trust Department.
"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 this 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
Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the
account of the holder of such depositary receipt; provided,
however, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable 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, in an 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 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 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 Securities of any series, there shall be established in or
pursuant to a Board Resolution of the Company, and set forth in
an Officers' Certificates, 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;
(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.
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
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, in an
Officers' Certificate or in 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 the fifteenth day of the month in which an
Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, 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 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 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.
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 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).
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."
(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.
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 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 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.
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.
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.
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 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.
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, 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.
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 the Debt Securities of
that series 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;
(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 Section 6.01(a) 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%
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 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.
(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 this 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 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 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%
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 Debt Security to receive payment of the
principal of (and premium, if any) and interest on such Debt
Security, as therein provided, on or after the respective due
dates expressed in such Debt 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 Debt Security
hereunder it is expressly understood, intended and covenanted by
the taker and holder of every Debt 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.
SECTION 6.06. Control by Securityholders.
The holders of a majority in aggregate principal amount
of the Debt 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 a majority 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. If the
Property Trustee fails to enforce its rights under this
Indenture, any holder of Preferred Securities or Common
Securities (as defined in the Declaration) may institute a legal
proceeding directly against the Company to enforce the Property
Trustee's rights under this Indenture without first instituting a
legal proceeding against the Property Trustee or any other
Person. In addition, if the Company fails to make interest or
other payments on Debt Securities of any series at the time
Outstanding when due, any holder of Preferred Securities or
Common Securities may enforce the Property Trustee's Rights
directly against the Company.
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) or interest on any Debt
Security of such series, on or after the respective due dates
expressed in such Debt 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 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 an Officers' Certificate (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 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 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 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.
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:
(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.
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 the retiring
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, 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.
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:
(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 (except
Illinois Power Trust) 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.
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;
(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% 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.
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.
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 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 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, 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 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.
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, or the Company's obligation with respect to the
Debt Securities of a series, 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 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 deposited first class postage prepaid in a
post-office letterbox addressed (until another address is filed
in writing by the Company with the Trustee), as follows: Illinois
Power Company, 500 South 27th Street, Decatur, Illinois 62525,
Attention: 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.
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.
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 or a Board Resolution relating
to such Debt Securities.
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:/s/ Cynthia G. Steward
Name: Cynthia G. Steward
Title: Controller
Attest:
By: /s/ Leah Manning Stetzner
Name: Leah Manning Stetzner
Title: Vice President, General Counsel
and Corporate Secretary
[Seal]
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By: /s/ Emmett R. Harmon
Name: Emmett R. Harmon
Title: Vice President
Attest:
By: /s/ W. Chris Sponenberg
Name: W. Chris Sponenberg
Title: Financial Services Officer
[Seal]