FIRST SUPPLEMENTAL INDENTURE
between
ILLINOIS POWER COMPANY
and
WILMINGTON TRUST COMPANY
Dated as of January 1, 1996
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE SUBORDINATED DEBENTURES
SECTION 2.1. Designation and Principal Amount 4
SECTION 2.2. Maturity 4
SECTION 2.3. Form and Payment 4
SECTION 2.4. Global Debenture 4
SECTION 2.5. Interest 6
ARTICLE III
REDEMPTION OF THE SUBORDINATED DEBENTURES
SECTION 3.1. Special Event Redemption 7
SECTION 3.2. Optional Redemption by Company 7
SECTION 3.3. No Sinking Fund 8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period 8
SECTION 4.2. Notice of Extension 9
SECTION 4.3. Limitation of Transactions 9
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses 10
SECTION 5.2. Payment Upon Resignation or Removal 10
ARTICLE VI
SUBORDINATION
SECTION 6.1. Agreement to Subordinate 11
SECTION 6.2. Default on Senior Indebtedness 11
SECTION 6.3. Liquidation; Dissolution; Bankruptcy 12
SECTION 6.4. Subrogation 13
SECTION 6.5. Trustee to Effectuate Subordination 14
SECTION 6.6. Notice by the Company 14
SECTION 6.7. Rights of the Trustee; Holders of Senior
Indebtedness 15
SECTION 6.8. Subordination May Not Be Impaired 15
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Listing on an Exchange 16
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. Form of Debenture 16
ARTICLE IX
ORIGINAL ISSUE OF SUBORDINATED DEBENTURES
SECTION 9.1. Original Issue of Subordinated Debentures 23
ARTICLE X
MISCELLANEOUS
SECTION 10.1.Ratification of Indenture 23
SECTION 10.2.Trustee Not Responsible for Recitals 23
SECTION 10.3.Governing Law 23
SECTION 10.4.Separability 23
SECTION 10.5.Counterparts 24
FIRST SUPPLEMENTAL INDENTURE, dated as of January 1,
1996 (the "First Supplemental Indenture"), between Illinois Power
Company, an Illinois corporation (the "Company"), and Wilmington
Trust Company, not in its individual capacity but solely as trust
ee (the "Trustee") under the Indenture dated as of January 1,
1996 between the Company and the Trustee (the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the
Indenture to the Trustee to provide for the future issuance of
the Company's unsecured junior subordinated debt securities to be
issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited
aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the
Company desires to provide for the establishment of a new series
of its Debt Securities to be known as its 8% Junior Subordinated
Deferrable Interest Debentures due 2045 (the "Subordinated
Debentures"), the form and substance of such Subordinated
Debentures and the terms, provisions and conditions thereof to be
set forth as provided in the Indenture and this First
Supplemental Indenture;
WHEREAS, Illinois Power Financing I, a Delaware
statutory business trust (the "Trust"), has offered to the public
$100,000,000 aggregate liquidation amount of its 8% Trust
Originated Preferred Securities (the "Preferred Securities"),
representing undivided beneficial interests in the assets of the
Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust
to the Company of $3,100,000 aggregate liquidation amount of its
8% Trust Originated Common Securities, in $103,100,000 aggregate
principal amount of the Subordinated Debentures; and
WHEREAS, the Company has requested that the Trustee
execute and deliver this First Supplemental Indenture and all
requirements necessary to make this First Supplemental Indenture
a valid instrument in accordance with its terms, and to make the
Subordinated Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations
of the Company, have been performed, and the execution and
delivery of this First Supplemental Indenture has been duly
authorized in all respects;
NOW THEREFORE, in consideration of the purchase and
acceptance of the Subordinated Debentures by the holders thereof,
and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the Subordinated Debentures
and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning
when used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them in
the Declaration: (i) Business Day; (ii) Clearing Agency; (iii)
Delaware Trustee; (iv) Depositary; (v) Dissolution Tax Opinion;
(vi) No Recognition Opinion; (vii) Preferred Security
Certificate; (viii) Pricing Agreement; (ix) Property Trustee; (x)
Regular Trustees; (xi) Special Event; and (xii) Tax Event; and
(xiii) Underwriting Agreement;
(g) the following terms have the meanings given to them in
this Section 1.1(g):
"Additional Interest" shall have the meaning set forth
in Section 2.5.
"Compounded Interest" shall have the meaning set forth
in Section 4.1.
"Coupon Rate" shall have the meaning set forth in
Section 2.5.
"Declaration" means the Amended and Restated
Declaration of Trust of Illinois Power Financing I, a
Delaware statutory business trust, dated as of January 11,
1996, including the Terms of Securities attached thereto as
Annex I.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Dissolution Event" means that, as a result of the
occurrence and continuation of a Special Event, the Trust
is to be terminated in accordance with the Declaration, and the
Subordinated Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the
Trust pro rata in accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Global Debenture" shall have the meaning set forth in
Section 2.4.
"Maturity Date" means the date on which the Subordinated
Debentures mature and on which the principal shall
be due and payable together with all accrued and unpaid interest
thereon including Compounded Interest and Additional Interest, if
any.
"Non Book-Entry Preferred Securities" shall have the
meaning set forth in Section 2.4.
"Optional Redemption Price" shall have the meaning set
forth in Section 3.2.
"Senior Indebtedness" means, with respect to the Company,
(i) the principal, premium, if any, and interest in
respect of (A) indebtedness of such obligor for money borrowed
and (B) indebtedness evidenced by securities, debentures, bonds
or other similar instruments issued by such obligor, including,
without limitation, indebtedness evidenced by securities issued
pursuant to the Company's Mortgage and Deed of Trust dated
November 1, 1943, as supplemented, and its General Mortgage
Indenture and Deed of Trust dated November 1, 1992, as
supplemented; (ii) all capital lease obligations of such obligor,
(iii) all obligations of such obligor issued or assumed as the
deferred purchase price of property, all conditional sale obliga
tions of such obligor and all obligations of such obligor under
any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all
obligations of such obligor for the reimbursement on any letter
of credit, banker's acceptance, security purchase facility or
similar credit transaction; (v) all obligations of the type
referred to in clauses (i) through (iv) of other Persons for the
payment of which such obligor is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the
type referred to in clauses (i) through (v) of other Persons
secured by any lien on any property or asset of such obligor
(whether or not such obligation is assumed by such obligor),
except for (1) any such indebtedness that is by its terms
subordinated to or pari passu with the Subordinated Debentures,
and (2) any indebtedness between or among such obligor and its
Affiliates, including all other debt securities and guarantees in
respect of those debt securities, issued to any other trust, or a
trustee of such trust, partnership or other entity affiliated
with the Company which is a financing vehicle of the Company (a
"Financing Entity") in connection with the issuance by such
Financial Entity of preferred securities or other securities
which rank pari passu with, or junior to, the Preferred
Securities.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE SUBORDINATED DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Debt Securities
designated the "8% Junior Subordinated Deferrable Interest
Debentures due 2045", limited in aggregate principal amount to
$103,100,000, which amount shall be as set forth in any written
order of the Company for the authentication and delivery of
Subordinated Debentures pursuant to Section 2.04 of the
Indenture.
SECTION 2.2. Maturity.
The Maturity Date is January 31, 2045.
SECTION 2.3. Form and Payment.
The Subordinated Debentures shall be issued in fully
registered certificated form without interest coupons. Principal
and interest on the Subordinated Debentures will be payable, the
transfer of such Subordinated Debentures will be registrable and
such Subordinated Debentures will be exchangeable for
Subordinated Debentures bearing identical terms and provisions,
at the office or agency of the Trustee; provided, however, that
payment of interest may be made at the option of the Company by
check mailed to the holder at such address as shall appear in the
Security Register. Notwithstanding the foregoing, so long as the
holder of any Subordinated Debentures is the Property Trustee,
the payment of the principal of and interest (including Compound
ed Interest and Additional Interest, if any) on such Subordinated
Debentures held by the Property Trustee will be made at such
place and to such account as may be designated by the Property
Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event:
(i) the Subordinated Debentures may be presented to the
Trustee by the Property Trustee in exchange for a global
Subordinated Debenture in an aggregate principal amount equal to
the aggregate principal amount of all outstanding Subordinated
Debentures (a "Global Debenture"), to be registered in the name
of the Depositary, or its nominee, and delivered by the Trustee
to the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Regular
Trustees. The Company, upon any such presentation, shall execute
a Global Debenture in such aggregate principal amount and deliver
the same to the Trustee for authentication and delivery in
accordance with the Indenture and this First Supplemental
Indenture. Payments on the Subordinated Debentures issued as a
Global Debenture will be made to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Subordinated Debentures may be presented
to the Trustee by the Property Trustee and any Preferred Security
Certificate which represents Preferred Securities other than
Preferred Securities held by the Clearing Agency or its nominee
("Non Book-Entry Preferred Securities") will be deemed to
represent beneficial interests in Subordinated Debentures
presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Preferred Securities until such
Preferred Security Certificates are presented to the Security
Registrar for transfer or reissuance at which time such Preferred
Security Certificates will be cancelled and a Debenture,
registered in the name of the holder of the Preferred Security
Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the
Preferred Security Certificate cancelled, will be executed by the
Company and delivered to the Trustee for authentication and
delivery in accordance with the Indenture and this First
Supplemental Indenture. On issue of such Subordinated
Debentures, Subordinated Debentures with an equivalent aggregate
principal amount that were presented by the Property Trustee to
the Trustee will be deemed to have been cancelled.
(b) Except as provided in clause (c) below, a Global
Debenture may be transferred, in whole but not in part, only to
another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary 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, 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, the Company will execute, and, subject to Article II
of the Indenture, the Trustee, upon written notice from the
Company, will authenticate and deliver the Subordinated
Debentures in definitive registered form, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture in exchange for such
Global Debenture. In addition, the Company may at any time
determine that the Subordinated Debentures shall no longer be
represented by a Global Debenture. In such event the Company
will execute, and subject to Section 2.11(c) of the Indenture,
the Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company, will authenticate and deliver
the Subordinated Debentures in definitive registered form, in
authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Debenture in exchange
for such Global Debenture. Upon the exchange of the Global
Debenture for such Subordinated Debentures in definitive
registered form, in authorized denominations, the Global
Debenture shall be cancelled by the Trustee. Such Subordinated
Debentures in definitive registered form issued in exchange for
the Global Debenture 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 Subordinated Debentures to the Depositary for delivery to
the Persons in whose names such Subordinated Debentures are so
registered.
SECTION 2.5. Interest.
(a) Each Subordinated Debenture will bear interest at the
rate of 8% per annum (the "Coupon Rate") from the original date
of issuance until the principal thereof becomes due and payable,
and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue
installment of interest, at the Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV)
quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year (each, an "Interest Payment Date"),
commencing March 31, 1996, to the Person in whose name such
Subordinated Debenture or any predecessor Subordinated Debenture
is registered, at the close of business on the regular record
date for such interest installment, which, in respect of any
Subordinated Debentures of which the Property Trustee is the
holder of a Global Debenture, shall be the close of business on
the Business Day next preceding that Interest Payment Date.
Notwithstanding the foregoing sentence, if the Preferred
Securities are no longer in book-entry only form or, except if
the Subordinated Debentures are held by the Property Trustee, the
Subordinated Debentures are not represented by a Global
Debenture, the Company may select a regular record date for such
interest installment which shall be any date at least one
Business Day before an Interest Payment Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months.
Except as provided in the following sentence, the amount of
interest payable for any period shorter than a full quarterly
period for which interest is computed, will be computed on the
basis of the actual number of days elapsed in such a 30-day
period. In the event that any date on which interest is payable
on the Subordinated Debentures is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
date.
(c) If, at any time while the Property Trustee is the
holder of any Subordinated Debentures, the Trust or the Property
Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company will pay as additional
interest ("Additional Interest") on the Subordinated Debentures
held by the Property Trustee, such additional amounts as shall be
required so that the net amounts received and retained by the
Trust and the Property Trustee after paying such taxes, duties,
assessments or other governmental charges will be equal to the
amounts the Trust and the Property Trustee would have received
had no such taxes, duties, assessments or other governmental
charges been imposed.
ARTICLE III
REDEMPTION OF THE SUBORDINATED DEBENTURES
SECTION 3.1. Special Event Redemption.
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Regular
Trustees shall have been informed by tax counsel rendering the
Dissolution Tax Opinion that a No Recognition Opinion cannot be
delivered to the Trust,
then, notwithstanding Section 3.2(a) but subject to Section
3.2(b), the Company shall have the right upon not less than 30
days nor more than 60 days notice to the holders of the
Subordinated Debentures to redeem the Subordinated Debentures, in
whole or in part, for cash within 90 days following the
occurrence of such Tax Event (the "90-Day Period") at a
redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the date
of such redemption (the "Redemption Price"), provided that if at
the time there is available to the Company the opportunity to
eliminate, within the 90-Day Period, the Tax Event by taking some
ministerial action ("Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar reasonable
measure which has no adverse effect on the Company, the Trust or
the holders of the Trust Securities issued by the Trust, the
Company shall pursue such Ministerial Action in lieu of redemp
tion, and, provided, further, that the Company shall have no
right to redeem the Subordinated Debentures while the Trust is
pursuing any Ministerial Action pursuant to its obligations under
the Declaration.
SECTION 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.02(b) and to the
provisions of Article III of the Indenture, except as otherwise
may be specified in this First Supplemental Indenture, the Com
pany shall have the right to redeem the Subordinated Debentures,
in whole or in part, from time to time, on or after January 31,
2001, at a redemption price equal to 100% of the principal amount
to be redeemed plus any accrued and unpaid interest thereon to
the date of such redemption (the "Optional Redemption Price").
Any redemption pursuant to this paragraph will be made upon not
less than 30 days nor more than 60 days notice to the holder of
the Subordinated Debentures, at the Optional Redemption Price.
If the Subordinated Debentures are only partially redeemed
pursuant to this Section 3.2, the Subordinated Debentures will be
redeemed pro rata or by lot or by any other method utilized by
the Trustee; provided, that if at the time of redemption the
Subordinated Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its procedures,
the principal amount of such Subordinated Debentures held by each
holder of Subordinated Debentures to be redeemed.
(b) If a partial redemption of the Subordinated Debentures
would result in the delisting of the Preferred Securities from
any national securities exchange or other organization on which
the Preferred Securities are then listed, the Company shall not
be permitted to effect such partial redemption and may only
redeem the Subordinated Debentures in whole.
SECTION 3.3. No Sinking Fund.
The Subordinated Debentures are not entitled to the
benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT
SECTION 4.1. Extension of Interest Payment Period.
The Company shall have the right, at any time and from
time to time during the term of the Subordinated Debentures, to
defer payments of interest by extending the interest payment
period of such Subordinated Debentures for a period not exceeding
20 consecutive quarters (the "Extended Interest Payment Period"),
during which Extended Interest Payment Period no interest shall
be due and payable. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section
4.1, will bear interest thereon at the Coupon Rate compounded
quarterly for each quarter of the Extended Interest Payment
Period ("Compounded Interest"). At the end of the Extended
Interest Payment Period, the Company shall pay all interest
accrued and unpaid on the Subordinated Debentures, including any
Additional Interest and Compounded Interest (together, "Deferred
Interest") that shall be payable to the holders of the
Subordinated Debentures in whose names the Subordinated
Debentures are registered in the Security Register on the first
record date after the end of the Extended Interest Payment
Period. Before the termination of any Extended Interest Payment
Period, the Company may further extend such period, provided that
such period together with all such further extensions thereof
shall not exceed 20 consecutive quarters. Upon the termination
of any Extended Interest Payment Period and upon the payment of
all Deferred Interest then due, the Company may commence a new
Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an
Extended Interest Payment Period, except at the end thereof, but
the Company may prepay at any time all or any portion of the
interest accrued during an Extended Interest Payment Period.
SECTION 4.2. Notice of Extension.
(a) If the Property Trustee is the only registered holder
of the Subordinated Debentures at the time the Company elects an
Extended Interest Payment Period, the Company shall give written
notice to the Regular Trustees, the Property Trustee and the
Trustee of its election of such Extended Interest Payment Period
at least one Business Day before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities
issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such
Distributions are payable, to the New York Stock Exchange or
other applicable self-regulatory organization or to holders of
the Preferred Securities, but in any event at least one Business
Day before such record date.
(b) If the Property Trustee is not the only holder of the
Subordinated Debentures at the time the Company elects an
Extended Interest Payment Period, the Company shall give the
holders of the Subordinated Debentures and the Trustee written
notice of its election of such Extended Interest Payment Period
10 Business Days before the earlier of (i) the next succeeding
Interest Payment Date, or (ii) the date the Company is required
to give notice of the record or payment date of such interest
payment to the New York Stock Exchange or other applicable self-
regulatory organization or to holders of the Subordinated
Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one
of the 20 quarters permitted in the maximum Extended Interest
Payment Period permitted under Section 4.1.
SECTION 4.3. Limitation of Transactions.
If (i) the Company shall exercise its right to defer
payment of interest as provided in Section 4.1, or (ii) there
shall have occurred any Event of Default, then (a) the Company
shall not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase, acquire 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, (b) the Company shall not make
any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities issued by the
Company which rank pari passu with or junior to the Subordinated
Debentures; and (c) the Company shall not make guarantee payments
with respect to the foregoing (other than pursuant to the
Preferred Securities Guarantee).
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of
the Subordinated Debentures to the Property Trustee and in
connection with the sale of the Trust Securities by the Trust,
the Company, in its capacity as borrower with respect to the
Subordinated Debentures, shall:
(a) pay all costs and expenses relating to the offering,
sale and issuance of the Subordinated Debentures, including
commissions to the underwriters payable pursuant to the
Underwriting Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 7.06 of
the Indenture;
(b) pay all costs and expenses of the Trust (including, but
not limited to, costs and expenses relating to the organization
of the Trust, the offering, sale and issuance of the Trust
Securities (including commissions to the underwriters in
connection therewith), the fees and expenses of the Property
Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of
Trust assets); and
(c) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and
all liabilities, costs and expenses with respect to such taxes of
the Trust.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture
or the Indenture or the removal or resignation of the Trustee
pursuant to this Section, the Company shall pay to the Trustee
all amounts accrued to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal
or resignation of the Delaware Trustee or the Property Trustee,
as the case may be, pursuant to Section 5.6 of the Declaration,
the Company shall pay to the Property Trustee all amounts accrued
to the date of such termination, removal or resignation.
ARTICLE VI
SUBORDINATION
SECTION 6.1. Agreement to Subordinate.
The Company covenants and agrees, and each holder of
Subordinated Debentures issued hereunder, by such holder's
acceptance thereof, likewise covenants and agrees, that all
Subordinated Debentures shall be issued subject to the provisions
of this Article; and each holder of a Subordinated Debenture,
whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of,
premium, if any, and interest on all Subordinated Debentures
issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness
of the Company, whether outstanding at the date of this Indenture
or thereafter incurred.
No provision of this Article shall prevent the occur
rence of any default hereunder or Event of Default.
SECTION 6.2. Default on Senior Indebtedness.
In the event and during the continuation of any default
by the Company in the payment of principal, premium, interest or
any other payment due on any Senior Indebtedness of the Company,
and any applicable grace period with respect to such default has
expired and such default has not been cured or waived or ceased
to exist, or in the event that the maturity of any Senior
Indebtedness of the Company, as the case may be, has been
accelerated because of a default, then, in either case, no
payment shall be made by the Company with respect to the princi
pal (including redemption and sinking fund payments) of, or
premium, if any, or interest on the Subordinated Debentures.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraph of this Section, such
payment shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of Senior Indebtedness or
their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebted
ness may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a
trustee) notify the Trustee in writing within 90 days of such
payment of the amounts then due and owing on the Senior Indebted
ness and only the amounts specified in such notice to the Trustee
shall be paid to the holders of Senior Indebtedness.
SECTION 6.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of
assets of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all
Senior Indebtedness of the Company shall first be paid in full,
or payment thereof provided for in money in accordance with its
terms, before any payment is made by the Company on account of
the principal (and premium, if any) or interest on the Subor
dinated Debentures; and upon any such dissolution or winding-up
or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, which the holders of the
Subordinated Debentures or the Trustee would be entitled to
receive from the Company, except for the provisions of this
Article, shall be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making
such payment or distribution, or by the holders of the
Subordinated Debentures or by the Trustee if received by them or
it, directly to the holders of Senior Indebtedness of the Company
(pro rata to such holders on the basis of the respective amounts
of Senior Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing such Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or
money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness,
before any payment or distribution is made to the holders of
Subordinated Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee before all Senior
Indebtedness of the Company is paid in full, or provision is made
for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing such Senior Indebtedness may have been
issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior
Indebtedness of the Company, as the case may be, remaining unpaid
to the extent necessary to pay such Senior Indebtedness in full
in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the
holders of such Senior Indebtedness.
For purposes of this Article, the words "cash, property
or securities" shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article Six
with respect to the Subordinated Debentures to the payment of all
Senior Indebtedness of the Company, as the case may be, that may
at the time be outstanding, provided that (i) such Senior
Indebtedness is assumed by the new corporation, if any, resulting
from any such reorganization or readjustment, and (ii) the rights
of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article X of the Indenture
shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other
corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in
Article X of the Indenture. Nothing in Section 6.2 or in this
Section 6.3 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 7.06 of the Indenture.
SECTION 6.4. Subrogation.
Subject to the payment in full of all Senior
Indebtedness of the Company, the rights of the holders of the
Subordinated Debentures shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as
the case may be, applicable to such Senior Indebtedness until the
principal of (and premium, if any) and interest on the
Subordinated Debentures shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or
securities to which the holders of the Subordinated Debentures or
the Trustee would be entitled except for the provisions of this
Article, and no payment over pursuant to the provisions of this
Article to or for the benefit of the holders of such Senior
Indebtedness by holders of the Subordinated Debentures or the
Trustee, shall, as between the Company, its creditors other than
holders of Senior Indebtedness of the Company, and the holders of
the Subordinated Debentures, be deemed to be a payment by the
Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article are and are
intended solely for the purposes of defining the relative rights
of the holders of the Subordinated Debentures, on the one hand,
and the holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article or elsewhere in the
Indenture, this First Supplemental Indenture or in the
Subordinated Debentures is intended to or shall impair, as among
the Company, its creditors other than the holders of Senior
Indebtedness of the Company, and the holders of the Subordinated
Debentures, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Subordinated
Debentures the principal of (and premium, if any) and interest on
the Subordinated Debentures as and when the same shall become due
and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the
Subordinated Debentures and creditors of the Company, as the case
may be, other than the holders of Senior Indebtedness of the
Company, as the case may be, nor shall anything herein or therein
prevent the Trustee or the holder of any Subordinated Debenture
from exercising all remedies otherwise permitted by applicable
law upon default under the Indenture, subject to the rights, if
any, under this Article of the holders of such Senior
Indebtedness in respect of cash, property or securities of the
Company, as the case may be, received upon the exercise of any
such remedy.
Upon any payment or distribution of assets of the
Company referred to in this Article, the Trustee, subject to the
provisions of Section 7.01 of the Indenture, and the holders of
the Subordinated Debentures shall be entitled to conclusively
rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation
or reorganization proceedings are pending, or a certificate of
the receiver, trustee in bankruptcy, liquidation trustee, agent
or other Person making such payment or distribution, delivered to
the Trustee or to the holders of the Subordinated Debentures, for
the purposes of ascertaining the Persons entitled to participate
in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, as the case may be, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article.
SECITON 6.5. Trustee to Effectuate Subordination.
Each holder of Subordinated Debentures, by such
holder's acceptance thereof, authorizes and directs the Trustee
on such holder's behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee such holder's attorney-in-fact
for any and all such purposes.
SECTION 6.6 Notice by the Company.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Subordinated Debentures
pursuant to the provisions of this Article. Notwithstanding the
provisions of this Article or any other provision of the
Indenture and this First Supplemental Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Subordinated Debentures pursuant to
the provisions of this Article, unless and until a Responsible
Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness or
from any trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Section
7.01 of the Indenture, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this
Section at least two Business Days prior to the date upon which,
by the terms hereof, any money may become payable for any purpose
(including, without limitation, the payment of the principal of
(or premium, if any) or interest on any Subordinated Debenture),
then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary
that may be received by it within two Business Days prior to such
date.
The Trustee, subject to the provisions of Section 7.02
of the Indenture, shall be entitled to conclusively rely on the
delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness of the Company, as
the case may be (or a trustee on behalf of such holder), to
establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of
any Person as a holder of such Senior Indebtedness to participate
in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such
Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under
this Article, and, if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 6.7. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be enti
tled to all the rights set forth in this Article in respect of
any Senior Indebtedness at any time held by it, to the same
extent as any other holder of Senior Indebtedness, and nothing in
this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness of
the Company, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set
forth in this Article, and no implied covenants or obligations
with respect to the holders of such Senior Indebtedness shall be
read into the Indenture or this First Supplemental Indenture
against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Indebtedness and,
subject to the provisions of Section 7.02 of the Indenture, the
Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to holders of
Subordinated Debentures, the Company or any other Person money or
assets to which any holder of such Senior Indebtedness shall be
entitled by virtue of this Article or otherwise.
SECTION 6.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company, as the
case may be, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company, as the
case may be, with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the
Company may, at any time and from time to time, without the
consent of or notice to the Trustee or the holders of the
Subordinated Debentures, without incurring responsibility to the
holders of the Subordinated Debentures and without impairing or
releasing the subordination provided in this Article or the
obligations hereunder of the holders of the Subordinated
Debentures to the holders of such Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter,
such Senior Indebtedness, or otherwise amend or supplement in any
manner such Senior Indebtedness or any instrument evidencing the
same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing such Senior
Indebtedness; (iii) release any Person liable in any manner for
the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company, as the
case may be, and any other Person.
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Listing on an Exchange.
If the Subordinated Debentures are to be issued as a
Global Debenture in connection with the distribution of the
Subordinated Debentures to the holders of the Preferred
Securities upon a Dissolution Event, the Company will use its
best efforts to list such Subordinated Debentures on the New York
Stock Exchange or on such other exchange as the Preferred Secu
rities are then listed.
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. Form of Debenture.
The Subordinated Debentures and the Trustee's Certifi
cate of Authentication to be endorsed thereon are to be
substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE Debenture IS TO BE A GLOBAL Debenture, INSERT -
This Debenture is a Global Debenture within the meaning of the
Indenture hereinafter referred to and is registered in the name
of a Depositary or a nominee of a Depositary. This Debenture is
exchangeable for Subordinated Debentures registered in the name
of a person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture, and no transfer
of this Debenture (other than a transfer of this Debenture as a
whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of
the Depositary) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration
of transfer, exchange or payment, and any Debenture issued is
registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL since the registered owner hereof, Cede & CO.,
has an interest herein.]
No._______________
ILLINOIS POWER COMPANY
8% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 2045
Illinois Power Company, an Illinois corporation (the
"Company", which term includes any successor corporation under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to ______________, or registered assigns,
the principal sum of One Hundred Three Million One Hundred
Thousand Dollars ($103,100,000) on January 31, 2045, and to pay
interest on said principal sum from January 17, 1996, or from the
most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided
for, quarterly (subject to deferral as set forth herein) in
arrears on March 31, June 30, September 30 and December 31 of
each year commencing March 31, 1996, at the rate of 8% per annum
until the principal hereof shall have become due and payable, and
on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The
amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months.
In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable
on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Debenture (or one or
more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date
for such interest installment, which shall be the close of
business on the business day next preceding such Interest Payment
Date. [IF PURSUANT TO THE PROVISIONS OF THE INDENTURE THE
SUBORDINATED DEBENTURES ARE NO LONGER REPRESENTED BY A GLOBAL
DEBENTURE -- which shall be the close of business on the 15th day
of the month in which such Interest Payment Date shall occur.]
Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the
registered holders on such regular record date and may be paid to
the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on
a special record date to be fixed by the Trustee for the payment
of such defaulted interest, notice whereof shall be given to the
registered holders of this series of Subordinated Debentures not
less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the
Subordinated Debentures may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in
the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or
agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of
payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered holder at
such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the holder of this
Debenture is the Property Trustee, the payment of the principal
of (and premium, if any) and interest on this Debenture will be
made at such place and to such account as may be designated by
the Property Trustee.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinate and junior in right
of payment to the prior payment in full of all Senior
Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of
this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his or her attorney-in-fact
for any and all such purposes. Each Holder hereof, by his or her
acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each
such holder upon said provisions.
This Debenture shall not be entitled to any benefit
under the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the
reverse side hereof and such continued provisions shall for all
purposes have the same effect as though fully set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this
instrument to be executed.
Dated
ILLINOIS POWER COMPANY
By:
Name:
Title
Attest:
By:
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Debentures of the
series of Subordinated Debentures described in the
within-mentioned Indenture.
as Trustee
or as Authentication Agent
By By
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Subordinated Debentures of the Company (herein sometimes referred
to as the "Subordinated Debentures"), specified in the Indenture,
all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of January 1, 1996, duly
executed and delivered between the Company and Wilmington Trust
Company, as Trustee (the "Trustee"), as supplemented by the First
Supplemented Indenture dated as of January 1, 1996, between the
Company and the Trustee (the Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the
Subordinated Debentures. By the terms of the Indenture, the
Subordinated Debentures are issuable in series that may vary as
to amount, date of maturity, rate of interest and in other
respects as provided in the Indenture. This series of
Subordinated Debentures is limited in aggregate principal amount
as specified in said First Supplemental Indenture.
Because of the occurrence and continuation of a Tax
Event, in certain circumstances, this Debenture may become due
and payable at the principal amount together with any interest
accrued thereon (the "Redemption Price"). The Company shall have
the right to redeem this Debenture at the option of the Company,
without premium or penalty, in whole or in part at any time on or
after January 31, 2001 (an "Optional Redemption"), or at any time
in certain circumstances upon the occurrence of a Tax Event, at a
redemption price equal to 100% of the principal amount plus any
accrued but unpaid interest, to the date of such redemption (the
"Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 days nor more than
60 days notice, at the Optional Redemption Price. If the
Subordinated Debentures are only partially redeemed by the
Company pursuant to an Optional Redemption, the Subordinated
Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided that if, at the time of
redemption, the Subordinated Debentures are registered as a
Global Debenture, the Depositary shall determine the principal
amount of such Subordinated Debentures held by each
Debentureholder to be redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part
only, a new Debenture or Debentures of this series for the
unredeemed portion hereof will be issued in the name of the
holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the
Indenture, shall have occurred and be continuing, the principal
of all of the Subordinated Debentures may be declared, and upon
such declaration shall become, due and payable, in the manner,
with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the
Company and the Trustee, with the consent of the holders of not
less than 66_% in aggregate principal amount of the Subordinated
Debentures of each series affected at the time Outstanding, as
defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights
of the holders of the Subordinated Debentures; provided, however,
that no such supplemental indenture shall (i) extend the fixed
maturity of any Subordinated Debentures 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 Debenture so affected, or (ii) reduce the
aforesaid percentage of Subordinated Debentures, the holders of
which are required to consent to any such supplemental indenture,
without the consent of the holders of each Debenture then Out
standing and affected thereby. The Indenture also contains
provisions permitting the holders of a majority in aggregate
principal amount of the Subordinated Debentures of any series at
the time outstanding affected thereby, on behalf of all of the
holders of the Subordinated Debentures of such series, to waive
any past default in the performance of any of the covenants con
tained in the Indenture, or established pursuant to the Indenture
with respect to such series, and its consequences, except a
default in the payment of the principal of or premium, if any, or
interest on any of the Subordinated Debentures of such series.
Any such consent or waiver by the registered holder of this
Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future
holders and owners of this Debenture and of any Debenture issued
in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision
of this Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest on this
Debenture at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right at any time during the
term of the Subordinated Debentures and from time to time to
extend the interest payment period of such Subordinated Deben
tures for up to 20 consecutive quarters (an "Extended Interest
Payment Period"), at the end of which period the Company shall
pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Subordinated Debentures to
the extent that payment of such interest is enforceable under
applicable law). Before the termination of any such Extended
Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, provided that such Extended
Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive quarters. At the termi
nation of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest and any additional
amounts then due, the Company may commence a new Extended Inter
est Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by
the registered holder hereof on the Security Register of the
Company, upon surrender of this Debenture for registration of
transfer at the office or agency of the Trustee in the City and
State of New York accompanied by a written instrument or instru
ments of transfer in form satisfactory to the Company or the
Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more
new Subordinated Debentures of authorized denominations and for
the same aggregate principal amount and series will be issued to
the designated transferee or transferees. No service charge will
be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmen
tal charge payable in relation thereto.
Prior to due presentment for registration of transfer
of this Debenture, the Company, the Trustee, any paying agent and
the Security Registrar may deem and treat the registered holder
hereof as the absolute owner hereof (whether or not this Deben
ture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Regis
trar) for the purpose of receiving payment of or on account of
the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the princi
pal of or the interest on this Debenture, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect
of the Indenture, against any incorporator, stockholder, officer
or director, past, present or future, as such, of the Company or
of any 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, all such liability
being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
[The Subordinated Debentures of this series are
issuable only in registered form without coupons in denominations
of $25 and any integral multiple thereof.] [This Global
Debenture is exchangeable for Subordinated Debentures in
definitive form only under certain limited circumstances set
forth in the Indenture. Subordinated Debentures of this series
so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.] As
provided in the Indenture and subject to certain limitations
herein and therein set forth, Subordinated Debentures of this
series so issued are exchangeable for a like aggregate principal
amount of Subordinated Debentures of this series of a different
authorized denomination, as requested by the holder surrendering
the same.
All terms used in this Debenture that are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
ARTICLE IX
ORIGINAL ISSUE OF SUBORDINATED DEBENTURES
SECTION 9.1. Original Issue of Subordinated Debentures.
Subordinated Debentures in the aggregate principal
amount of $103,100,000 may, upon execution of this First Supple
mental Indenture, be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Subordinated Debentures to or upon
the written order of the Company, signed by its Chairman, its
Vice Chairman, its President, or any Vice President and its Trea
surer or an Assistant Treasurer, without any further action by
the Company.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Ratification of Indenture.
The Indenture, as supplemented by this First Supple
mental Indenture, is in all respects ratified and confirmed, and
this First Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein
provided.
SECTION 10.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company
and not by the Trustee, and the Trustee assumes no responsibility
for the correctness thereof. The Trustee makes no representation
as to the validity or sufficiency of this First Supplemental
Indenture.
SECTION 10.3. Governing Law.
This First Supplemental Indenture and each Subordinated
Debenture 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 10.4. Separability.
In case any one or more of the provisions contained in
this First Supplemental Indenture or in the Subordinated Deben
tures shall for any reason be held to be invalid, illegal or un
enforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Subordinated Debentures,
but this First Supplemental Indenture and the Subordinated
Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or
therein.
SECTION 10.5. Counterparts.
This First Supplemental 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.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested,
on the date or dates indicated in the acknowledgements and 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]
THE 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]
SoftSolutions Document Identifier: CHI2:43297.1
Dataset: CHI2 Chicago - Floors 72 and 73
Doc #: 43297
Version: 1CHI2:43297.1 03.26.96 16.03