Exhibit (b)(36)
[Conformed Copy]
ILLINOIS POWER COMPANY
TO
HARRIS TRUST AND SAVINGS BANK,
as Trustee
Supplemental Indenture
DATED AS OF DECEMBER 1, 1997
TO
Mortgage and Deed of Trust
DATED NOVEMBER 1, 1943
SUPPLEMENTAL INDENTURE, dated as of the first day of December, Nineteen hundred
and ninety-seven (1997) (the "Supplemental Indenture"), made by and between
ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of
the State of Illinois (the "Company"), and HARRIS TRUST AND SAVINGS BANK, a
corporation organized and existing under the laws of the State of Illinois (the
"Trustee"), as Trustee under the Mortgage and Deed of Trust dated November 1,
1943.
WHEREAS, the Company has heretofore executed and delivered its Mortgage and
Deed of Trust dated November 1, 1943 (the "Original Indenture"), to the Trustee,
for the security of the First Mortgage Bonds of the Company issued and to be
issued thereunder (the "Bonds"); and
WHEREAS, the Company desires to amend the Original Indenture in certain
respects, and in connection therewith has complied with the applicable
provisions of Articles XIV and XV of the Original Indenture; and
WHEREAS, the Company, in the exercise of the powers and authority conferred
upon and reserved to it under the provisions of the Original Indenture, and
pursuant to appropriate resolutions of the Board of Directors, has duly resolved
and determined to make, execute and deliver to the Trustee a Supplemental
Indenture in the form hereof for the purposes herein provided; and
WHEREAS, all the conditions and requirements necessary to make this
Supplemental Indenture a valid, binding and legal instrument have been done,
performed and fulfilled and the execution and delivery hereof have been in all
respects duly authorized:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
THAT Illinois Power Company, in consideration of the purchase and ownership
from time to time of the Bonds and the service by the Trustee, and its
successors, under the Original Indenture and of One Dollar to it duly paid by
the Trustee at or before the ensealing and delivery of these presents, the
receipt whereof is hereby acknowledged, hereby covenants and agrees to and with
the Trustee and its successors in the trust under the Original Indenture, for
the benefit of those who shall hold the Bonds and coupons, if any, appertaining
thereto, as follows:
ARTICLE I
AMENDMENT OF ORIGINAL INDENTURE
Section 1. The Original Indenture is hereby amended to delete the terms "St.
Clair bonds" and "St. Clair mortgage" and all references thereto.
Section 2. Article I of the Original Indenture, "Definitions," is hereby amended
in the following respects:
(a) The definition of "Net bondable value of property additions not
subject to an unfunded prior lien" is hereby amended by changing the
fractions set forth in each of Subdivisions (e)(1) and (f) thereof
from "ten-sixths (10/6ths)" to "133 1/3%."
(b) The definition of "Net bondable value of property additions subject to
an unfunded prior lien" is hereby amended by changing the fractions
set forth in each of Subdivisions (c) and (d) thereof from "ten-sixths
(10/6ths)" to "133 1/3%."
(c) The definition of "Net earnings of the Company available for interest
and property retirement appropriations" is hereby amended and restated
in its entirety as follows:
"The term net earnings of the Company available for interest and
property retirement appropriations shall mean the net earnings of the
Company ascertained as follows, specifying:
(a) its operating revenues (which may include revenues of the
Company subject when collected or accrued to possible refund at a
future date) with the principal divisions thereof.
(b) its operating expenses, with the principal divisions thereof,
excluding (A) expenses for income, profits and other taxes measured
by, or dependent on, net income, (B) provisions for reserves for
renewals, replacements, depreciation, depletion or retirement of
property (or any expenditures therefor), or provisions for
amortization of property, (C) expenses or provisions for interest on
any indebtedness of the Company, for the amortization of debt
discount, premium, expense or loss on reacquired debt, for any
maintenance and replacement, improvement or sinking fund or other
device for the retirement of any indebtedness, or for other
amortization, (D) expenses or provisions for any non-recurring charge
to income or to retained earnings of whatever kind or nature
(including without limitation the recognition of expense due to the
non-recoverability of assets or expense), whether or not recorded as a
non-recurring charge in the Company's books of account, and (E)
provisions for any refund of revenues previously collected or accrued
by the Company subject to possible refund;
(c) the amount remaining after deducting the amount in clause (b)
above from the amount in clause (a) above;
(d) its rental revenues (net of rental expenses not included in
clause (b) above);
(e) the sum of the amounts in clauses (c) and (d);
(f) its other income, which amount may include any portion of the
allowance for funds used during construction and other income related
to deferred costs (or any analogous amounts) which is not included in
"other income" (or any analogous item) in the Company's books of
account;
(g) Net earnings of the Company available for interest and
property retirement appropriations (being the sum of clauses (e) and
(f) above).
Notwithstanding anything herein to the contrary, neither profits
nor loss from the sale or other disposition of property, nor
non-recurring charges of any kind or nature, whether items of revenue
or expense, shall be included in calculating net earnings of the
Company available for interest and property retirement appropriations.
If any of the property of the Company owned by it at the time of
calculating net earnings of the Company available for interest and
property retirement appropriations (a) shall have been acquired during
or after any period for which net earnings of the Company available
for interest and property retirement appropriations are to be
computed, (b) shall not have been acquired in exchange or substitution
for property the net earnings of which have been included in the net
earnings of the Company available for interest and property retirement
appropriations, and (c) had been operated as a separate unit and items
of revenue and expense attributable thereto are readily ascertainable,
then the net earnings of such property (computed in the manner in this
Section provided for the computation of the net earnings of the
Company available for interest and property retirement appropriations)
during such period or such part of such period as shall have preceded
the acquisition thereof, to the extent that the same have not
otherwise been included in the net earnings of the Company available
for interest and property retirement appropriations, shall be so
included."
(d) The definition of "Net earnings of the Company available for interest
after property retirement appropriations" and all references thereto
are hereby deleted in their entirety.
Section 3. Article III of the Original Indenture, "Authentication and Delivery
of Bonds," is hereby amended in the following respects:
(a) Section 3, Subdivision (b)(1) is hereby amended by (i) changing the
period "fifteen calendar months" to "eighteen calendar months," (ii)
deleting the phrase "the greater of" and changing the figure "two and
one-half" to "two," and (iii) deleting the phrase "or ten percent
(10%) of the principal amount of".
(b) Section 3, Subdivision (b)(2) and all references thereto are hereby
deleted in their entirety.
(c) The first paragraph of Section 4 is hereby amended by changing the
percentage set forth in the first sentence thereof from 60% to 75%.
(d) Section 4, Subdivisions (a)(7)(i) and (a)(8) are hereby amended by
changing the fraction set forth in each such Subdivision thereof from
"ten-sixths (10/6ths)" to "133 1/3%."
Section 4. Article IV of the Original Indenture, "Particular Covenants of the
Company," is hereby amended in the following respects:
(a) Section 6, Subdivision (a) is hereby amended by (i) deleting the
phrase "such hazards and risks as are usually insured by companies
similarly situated and operating like properties" and replacing in
lieu thereof the word "fire," (ii) deleting the phrase "Fifty thousand
dollars" and replacing in lieu thereof "the greater of Five Million
Dollars ($5,000,000) or three per cent (3%) of the aggregate principal
amount of the Bonds then outstanding under this Indenture, and (iii)
deleting the phrase "hazards and risks covered thereby" in Subdivision
(a)(1) and replacing in lieu thereof the word "fire."
(b) Section 6, Subdivision (b) is hereby amended by deleting the phrase
"Twenty five thousand dollars" and replacing in lieu thereof "the
greater of Five Million Dollars or three per cent (3%) of the
aggregate principal amount of Bonds then outstanding under this
Indenture."
(c) Section 6, Subdivision (c) is hereby amended by deleting the phrase
"any insurance" and replacing in lieu thereof "any fire insurance
required to be maintained by it pursuant to Subdivision (a) of this
Section."
(d) Section 14, Subdivision (a) is hereby amended by changing the
percentage set forth therein from "50%" to "75%."
(e) Section 14, Subdivision (b)(1) is hereby amended by (i) changing the
period "fifteen calendar months" to "eighteen calendar months," (ii)
deleting the phrase "the greater of" and changing the figure "two and
one-half" to "two," and (iii) deleting the phrase "or ten percent
(10%) of the principal amount of."
(f) Section 14, Subdivision (b)(2) and all references thereto are hereby
deleted in their entirety.
(g) Section 16, Subdivisions (a)(1) and (a)(2) are hereby amended by
changing the percentages set forth in each such Subdivision from "60%"
to "75%."
(h) Section 16, Subdivision (b)(1) is hereby amended by (a) changing the
period "fifteen calendar months" to "eighteen calendar months," (b)
deleting the phrase "the greater of" and changing the figure "two and
one-half" to "two," and (c) deleting the phrase "or ten percent (10%)
of the principal amount of, and."
(i) Section 16, Subdivision (b)(2) and all references thereto are hereby
deleted in their entirety.
(j) Sections 24, 25 and 26 and all references thereto are hereby deleted
in their entirety.
Section 5. Article VI of the Original Indenture, "Concerning Securities Held by
the Trustee," is hereby amended to delete Sections 6, 7, 8, 9, 10, 11 and 12 and
all references thereto in their entirety.
Section 6. Article VII of the Original Indenture, "Possession, Use and Release
of Property," is hereby amended in the following respects:
(a) Section 3 is amended by adding the following paragraph at the end of
Section 3:\
"Notwithstanding any of the foregoing, if the property constituting
part of the trust estate to be released is (i) capital stock of any
Subsidiary owned by the Company, or (ii) secured funded indebtedness
of any Subsidiary owned by the Company, the Company shall not be
required to comply with any of the provisions of this Section 3."
(b) Article VII is hereby amended by adding the following new Section 9:
"SECTION 9. Notwithstanding the other provisions of this Article VII,
unless an Event of Default shall have occurred and be continuing, the
Company may obtain the release from the lien of this Indenture, any
part of the property constituting part of the trust estate, or any
part thereof, and the Trustee shall whenever from time to time
requested by the Company, and without requiring compliance with any of
the other provisions of this Article VII, release the same from the
lien hereof all the right, title and interest of the Trustee in and to
the same, provided either that:
(a) the aggregate fair value of the property to be so released on
any date in a given calendar year, together with all other property
released pursuant to this Subdivision (a) in such calendar year, shall
not exceed the greater of Five Million Dollars ($5,000,000) or one
percent (1%) of the aggregate principal amount of the Bonds at the
time outstanding, provided that there shall be delivered to the
Trustee an engineer's certificate stating the fair value, in the
judgment of the signers, of the property to be released, the aggregate
fair value of all other property theretofore released pursuant to this
Subdivision (a) in such calendar year and that, in the judgment of the
signers, the release thereof will not impair the security under this
Indenture in contravention of the provisions hereof; or
(b) the aggregate fair value of the property to be so released on
any date in a given calendar year, together with all other property
released pursuant to Subdivision (a) of this Section 9 or this
Subdivision (b) in such calendar year, shall exceed the greater of
Five Million Dollars ($5,000,000) or one percent (1%) of the aggregate
principal amount of the Bonds at the time outstanding, but shall not
exceed three percent (3%) of the aggregate principal amount of the
Bonds at the time outstanding, provided that there shall be delivered
to the Trustee an engineer's certificate stating the fair value, in
the judgment of the signers, of the property to be released, the
aggregate fair value of all other property theretofore released
pursuant to Subdivision (a) of this Section 9 and this Subdivision (b)
in such calendar year and, as to property additions, the cost thereof
(or, if the fair value to the Company of such property at the time the
same became property additions was less than the cost thereof, then
such fair value, in the judgment of the signers, in lieu of cost), and
that, in the judgment of the signers, the release thereof will not
impair the security under this Indenture in contravention of the
provisions hereof. On or before December 1st of each year, the Company
shall deposit with the Trustee an amount in cash equal to the
aggregate cost of the properties constituting property additions so
released pursuant to this Subdivision (b) during the previous calendar
year (or, if the fair value to the Company of any particular property
at the time the same became property additions was less than the cost
thereof, then such fair value in lieu of cost); provided, however,
that no such deposit shall be required to be made hereunder to the
extent that cash or other consideration shall, as indicated in an
Officer's certificate delivered to the Trustee, have been deposited
with the trustee or other holder of a funded prior lien, a unfunded
prior lien or other lien prior to the lien of this Indenture in
accordance with the provision thereof. Any cash deposited with the
Trustee under this Subdivision (b) may thereafter be withdrawn, used
or applied in the manner, to the extent and for the purposes, and
subject to the conditions, provided in this Article VII."
Section 7. Article VIII of the Original Indenture, "Application of Moneys
Received by the Trustee," is hereby amended in the following respects:
(a) The first paragraph of Section 1 is hereby amended and restated in its
entirety as follows:
"Section 1. Any moneys held by the Trustee as part of the trust estate
(other than moneys received by the Trustee pursuant to Section 5(a) of
Article III or on account of judgment liens or in order to make a
prior lien a funded prior lien) shall be paid over from time to time
by the Trustee to or upon the order of the Treasurer or an Assistant
Treasurer of the Company, in amount equal to the cost, or the fair
value to the Company if the fair value is less than the cost, of all
property additions purchased, constructed or otherwise acquired by the
Company not previously included within the definition of "net bondable
value of property additions not subject to an unfunded prior lien" for
purposes of issuing Bonds or withdrawing cash, but only upon the
receipt by the Trustee of :"
(b) Section 1, Subdivision (b)(1) is hereby amended by deleting the
following in its entirety:
"during the period specified in such certificate, commencing,
(i) in the case of withdrawal of moneys received by the Trustee
pursuant to Sections 3, 4 or 5 of Article VII upon the release of any
property (other than obligations deposited pursuant to Section 3(d) of
Article VII) from the lien of this Indenture, on a date not earlier
than the date of the application for such release,
(ii) in the case of withdrawal of moneys received by the Trustee
upon the payment of principal of obligations deposited pursuant to
Section 3(d) of Article VII, or upon the release of such obligations
from the lien of this Indenture, on a date not earlier than the date
of the application for the release of the property with respect to
which such obligations were deposited,
(iii) in the case of withdrawal of moneys deposited with the
Trustee pursuant to Section 6 of Article IV, on the date of the loss
or destruction of the property with respect to which such moneys were
deposited, and
(iv) in the case of withdrawal of any other moneys which may be
withdrawn pursuant to this Section 1, on a date not earlier than the
date of the receipt by the Trustee of such moneys."
(c) Section 3, Subdivision (a) is hereby amended by changing the
percentage set forth therein from "60%" to "75%."
(d) Section 8 and all references thereto are hereby deleted in their
entirety.
Section 8. Article IX of the Original Indenture, "Remedies Upon Default," is
hereby amended by deleting Section 1, Subdivisions (a) through (k) thereof and
substituting therefor the following:
"(a) failure to pay interest, if any, on any Bond within
forty-five (45) days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any
Bond within three (3) business days after its maturity; or
(c) failure to make any payment to any sinking, maintenance or
other analogous fund within sixty (60) days after the same becomes due
and payable;
(d) failure to perform or breach of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or breach of which is elsewhere in
this Section specifically dealt with) for a period of sixty (60) days
after there has been given, by registered or certified mail, to the
Company by the Trustee, or to the Company and the Trustee by the
Bondholders of at least twenty-five percent (25%) in principal amount
of the Bonds then outstanding under this Indenture, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "notice of default" hereunder, unless
the Trustee, or the Trustee and the Bondholders of a principal amount
of Bonds not less than the principal amount of Bonds the Bondholders
of which gave such notice, as the case may be, shall agree in writing
to an extension of such period prior to its expiration; provided,
however, that that Trustee, or the Trustee and the Bondholders of such
principal amount of Bonds, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action is
initiated by the Company within such period and is being diligently
pursued; or
(e) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of for the Company or for any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and any such decree or order for relief or
any such other decree or order shall have remained unstayed and in
effect for a period of ninety (90) consecutive days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in a case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they
become due, or the authorization of such action by the Board of
Directors; or
(g) an "Event of Default" under the General Mortgage Indenture
and Deed of Trust, dated as of November 1, 1992 (the "1992 Mortgage"),
from the Company to Harris Trust and Savings Bank, trustee, or a
Matured Event of Default under any Prior Mortgage (as such terms are
defined in the 1992 Mortgage); provided, however, that, anything in
this Indenture to the contrary notwithstanding, the waiver of cure of
such "Event of Default" or event of default and the rescission and
annulment of the consequences thereof shall constitute a waiver of the
corresponding completed default under this Indenture and a rescission
and annulment of the consequences thereof;"
Section 9. Article XII of the Original Indenture, "Consolidation, Merger and
Sale," is hereby amended in the following respects:
(a) Section 1, Subdivision (b)(1) is hereby amended by changing the
percentage set forth therein from "50%" to "75%."
(b) Section 1, Subdivision (b)(2) is hereby amended by (a) changing the
period "fifteen calendar months" to "eighteen calendar months," (b)
deleting the phrase "the greater of" and changing the figure "two and
one-half" to "two," and (c) deleting the phrase "or ten percent (10%)
of the principal amount of, and the net earnings of such other
corporation available for interest after property retirement
appropriations (determined in the manner provided in Article I) for
the same twelve month period shall have amounted in the aggregate to
at least two times the amount of the annual interest charges on".
ARTICLE II
THE TRUSTEE
The Trustee hereby accepts the trusts hereby declared and provided and
agrees to perform the same upon the terms and conditions in the Original
Indenture set forth and upon the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or
the due execution hereof by the Company or for or in respect of the
recitals contained herein, all of which recitals are made by the Company
solely. In general, each and every term and condition contained in Article
XIII of the Original Indenture shall apply to this Supplemental Indenture
with the same force and effect as if the same were herein set forth in
full, with such omissions, variations and modifications thereof as may be
appropriate to make the same conform to this Supplemental Indenture.
ARTICLE III
MISCELLANEOUS
This Supplemental Indenture may be simultaneously executed in any
number of counterparts, each of which when so executed shall be deemed to
be an original; but such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, said Illinois Power Company has caused this Indenture
to be executed on its behalf by its Chairman and President, one of its Executive
Vice Presidents, one of its Senior Vice Presidents or one of its Vice Presidents
and its corporate seal to be hereto affixed and said seal and this Indenture to
be attested by its Secretary or one of its Assistant Secretaries; and said
Harris Trust and Savings Bank, in evidence of its acceptance of the trust hereby
created, has caused this Indenture to be executed on its behalf by its President
or one of its Vice Presidents and its corporate seal to be hereto affixed and
said seal and this Indenture to be attested by its Secretary or one of its
Assistant Secretaries; all as of the first day of December, nineteen hundred and
ninety-seven.
ILLINOIS POWER COMPANY,
By /s/ Larry F. Altenbaumer
(CORPORATE SEAL) Senior Vice President and Chief Financial Officer
ATTEST:
/s/ Leah Manning Stetzner
Secretary
HARRIS TRUST AND SAVINGS BANK, Trustee,
By /s/ J. Bartolini
(CORPORATE SEAL) Vice President
/s/ C. Potter
Assistant Secretary
STATE OF ILLINOIS )
) SS.
COUNTY OF MACON )
BE IT REMEMBERED, that on this 19th day of December, 1997, before me, the
undersigned Teresa Stewart, a Notary Public within and for the County and State
aforesaid, personally came Larry F. Altenbaumer, Senior Vice President and Chief
Financial Officer, and Leah Manning Stetzner, Secretary, of Illinois Power
Company, a corporation duly organized, incorporated and existing under the laws
of the State of Illinois, who are personally known to me to be such officers,
and who are personally known to me to be the same persons who executed as such
officers the within instrument of writing, and such persons duly acknowledged
that they signed, sealed and delivered the said instrument as their free and
voluntary act as such Senior Vice President, Chief Financial Officer and
Secretary, respectively, and as free and voluntary act of said Illinois Power
Company for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
/s/ Teresa Stewart
Notary Public, Macon County, Illinois
My Commission Expires September 17, 2001.
(NOTARIAL SEAL)
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
BE IT REMEMBERED, that on this 17th day of December, 1997, before me, the
undersigned Marianne Tinerella, a Notary Public within and for the County and
State aforesaid, personally came J. Bartolini, Vice President, and C. Potter,
Assistant Secretary, of Harris Trust and Savings Bank, a corporation duly
organized, incorporated and existing under the laws of the State of Illinois,
who are personally known to me to be such officers, and who are personally known
to me to be the same persons who executed as such officers the within instrument
of writing, and such persons duly acknowledged that they signed, sealed and
delivered the said instrument as their free and voluntary act as such Vice
President and Assistant Secretary, respectively, and as free and voluntary act
of said Harris Trust and Savings Bank for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
/s/ Marianne Tinerella
Notary Public, Cook County, Illinois
My Commission Expires May 21, 2001.
(NOTARIAL SEAL)
CHI2:149570.5 03.06.98 10.41