-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WzhhsTutxxor87sLWQBHR6PN3V1IcvgBeP5scsNZbyuVld6bqsV7Kxdpy3ltP53E 6OPh4RemzeVB4ZEZx7QIuw== 0000950124-99-000414.txt : 19990125 0000950124-99-000414.hdr.sgml : 19990125 ACCESSION NUMBER: 0000950124-99-000414 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 20 FILED AS OF DATE: 19990122 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ILLINOIS POWER CO CENTRAL INDEX KEY: 0000049816 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 370344645 STATE OF INCORPORATION: IL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-71061 FILM NUMBER: 99511618 BUSINESS ADDRESS: STREET 1: 500 S 27TH ST STREET 2: C/O HARRIS TRUST & SAVINGS BANK CITY: DECATUR STATE: IL ZIP: 62525-1805 BUSINESS PHONE: 2174246600 FORMER COMPANY: FORMER CONFORMED NAME: ILLINOIS IOWA POWER CO DATE OF NAME CHANGE: 19660822 S-3 1 FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 22, 1999 REGISTRATION STATEMENT NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- ILLINOIS POWER COMPANY (Exact name of Registrant as specified in its charter) --------------------- STATE OF ILLINOIS 37-0344645 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.)
500 SOUTH 27TH STREET DECATUR, ILLINOIS 62525 (217) 424-6600 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) CHARLES E. BAYLESS, CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER 500 SOUTH 27TH STREET DECATUR, ILLINOIS 62525 (217) 424-7152 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copy to: ROBERT J. REGAN, ESQ. SCHIFF HARDIN & WAITE 6600 SEARS TOWER CHICAGO, ILLINOIS 60606 (312) 258-5606 --------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement. --------------------- If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------- PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------- Debt Securities...... $250,000,000 100% $250,000,000 $69,500 - --------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. PROSPECTUS SUBJECT TO COMPLETION JANUARY 22, 1999 $250,000,000 ILLINOIS POWER COMPANY DEBT SECURITIES ------------------------- We intend from time to time to offer, in one or more series, up to $250,000,000 aggregate principal amount of our New Mortgage Bonds or other debt securities (collectively, "Securities"). We will provide the specific terms of the series of Securities in one or more supplements to this Prospectus. You should read this Prospectus and any Prospectus Supplement carefully before you invest in the Securities. ------------------------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ------------------------- We may offer the Securities in any of the following ways: - directly to you, - through dealers, - through underwriters, - through agents, or - through any combination of these methods. You can find additional information about our plan of distribution for Securities under the heading "Plan of Distribution," which appears later in this Prospectus. We will also describe the plan of distribution for any particular series of Securities in the Prospectus Supplement for that series. ------------------------- THE DATE OF THIS PROSPECTUS IS , 1999. 3 YOU SHOULD RELY ONLY ON THE INFORMATION PROVIDED IN OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION. THE INFORMATION CONTAINED IN THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT IS CURRENT ONLY AS OF THE DATE OF SUCH PROSPECTUS OR PROSPECTUS SUPPLEMENT. WE ARE NOT MAKING AN OFFER TO SELL OR SOLICITING AN OFFER TO BUY THE SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. TABLE OF CONTENTS
PAGE ---- Where You Can Find More Information......................... 3 Documents Incorporated by Reference......................... 3 Forward-Looking Statements.................................. 4 The Company................................................. 4 Use of Proceeds............................................. 4 Ratio of Earnings to Fixed Charges.......................... 5 Description of the New Mortgage Bonds....................... 5 Description of the Unsecured Debt Securities................ 20 Plan of Distribution........................................ 23 Legal Opinions.............................................. 23 Experts..................................................... 24
2 4 WHERE YOU CAN FIND MORE INFORMATION We have filed with the Securities and Exchange Commission (the "Commission") in Washington, D.C., a Registration Statement on Form S-3 (together with its amendments and exhibits, the "Registration Statement"), under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the securities offered in this Prospectus. We have not included certain portions of the Registration Statement in this Prospectus as permitted by the Commission's rules and regulations. For further information, you should refer to the Registration Statement. We are subject to the informational requirements of the Securities Act of 1934, as amended (the "Exchange Act"), and therefore we file annual, quarterly and current reports, proxy and information statements and other information with the Commission. You may inspect and copy the Registration Statement, as well as the reports and other information filed by the Company with the Commission, at the Commission's public reference facilities at its principal offices at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and its regional offices at Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New York 10048. You may obtain information on the operation of the Commission's public reference facilities by calling 1-800-SEC-0330. You may also obtain information filed by us at the Commission's Web site on the World Wide Web at http://www.sec.gov. You may obtain these materials at set rates from the Public Reference Section of the Commission at its principal office at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. Finally, you may inspect our filings at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005 or at our principal office, 500 South 27th Street, Decatur, Illinois 62525. DOCUMENTS INCORPORATED BY REFERENCE The Commission allows us to "incorporate by reference" the information we file with it, which means that we can disclose important information to you by referring you to those documents. Information incorporated by reference is considered to be part of this Prospectus. Information that we file with the Commission after the date of this Prospectus will automatically modify and supersede the information included or incorporated by reference in this Prospectus to the extent that the subsequent filings contain information that modifies or supersedes the existing information. We incorporate by reference the documents listed below and any future filings made with the Commission under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act until we sell all the Securities. - Our Annual Report on Form 10-K for the year ended December 31, 1997; - Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June 30, 1998 (as amended by our Quarterly Report on Form 10-Q/A filed August 13, 1998) and September 30, 1998 (as amended by our Quarterly Report on Form 10-Q/A filed November 20, 1998); and - Our Current Reports on Form 8-K dated December 16, 1997, January 21, 1998, February 13, 1998, April 14, 1998, May 6, 1998, June 24, 1998, July 6, 1998, July 15, 1998, October 20, 1998, November 25, 1998 and December 14, 1998. 3 5 We will provide to you (upon receiving your written or oral request) a copy of any or all of the information that has been or may be incorporated by reference in, but not delivered with, this Prospectus. We will deliver this information at no cost to you. You should direct your request to: ILLINOIS POWER COMPANY SHAREHOLDER SERVICES DEPARTMENT 500 SOUTH 27TH STREET DECATUR, ILLINOIS 62525 1(800) 800-8220 OR ILLINOIS POWER COMPANY c/o ILLINOVA CORPORATION http://www.illinova.com. FORWARD-LOOKING STATEMENTS We make statements in this Prospectus and the documents we incorporate by reference that contain estimates, projections and other forward-looking statements that involve risks and uncertainties. Actual results or outcomes could differ materially from those provided in the forward-looking statements as a result of such important factors as: the outcome of state and federal regulatory proceedings affecting the restructuring of the electric and gas utility industries; the impacts of new laws and regulations on Illinova and its subsidiaries (including the Company) relating to restructuring, environmental and other matters; the effects of increased competition on the utility businesses; the risks of owning and operating a nuclear facility; changes in prices and cost of fuel; factors affecting non-utility investments, such as the risk of doing business in foreign countries; construction and operation risks; and increases in financing costs. All forward-looking statements are based upon information presently available, and we assume no obligation to update any forward-looking statements. THE COMPANY We were incorporated under the laws of the State of Illinois on May 25, 1923. We are engaged in the generation, transmission, distribution and sale of electric energy and the distribution, transportation and sale of natural gas in the State of Illinois. Our service area is a widely diversified industrial and agricultural area comprising approximately 15,000 square miles in northern, central and southern Illinois. We provide electric service at retail to 310 incorporated municipalities, adjacent suburban and rural areas and numerous unincorporated municipalities having an estimated aggregate population of approximately 1,265,000. We provide gas service to 257 incorporated municipalities, adjacent suburban areas and numerous unincorporated municipalities having an estimated aggregate population of approximately 920,000. The larger cities that we serve include Decatur, East St. Louis (gas only), Champaign, Danville, Belleville, Granite City, Bloomington (electric only), Galesburg, Urbana and Normal (electric only). Illinova Corporation owns all of our outstanding common stock. Our executive offices are located at 500 South 27th Street, Decatur, Illinois 62525, and our telephone number is (217) 424-6600. USE OF PROCEEDS We expect to add the net proceeds from the sale of the Securities to our general funds and use them for general corporate purposes. We may place the net proceeds in interest-bearing time deposits or invest them in short-term marketable securities until we use them. If we decide to use the net proceeds of any offering of Securities in some other way, we will describe the use of the net proceeds in the Prospectus Supplement for that offering. 4 6 RATIO OF EARNINGS TO FIXED CHARGES The following table sets forth our ratios of earnings to fixed charges for the periods indicated. This information is qualified in its entirety by the information appearing elsewhere in this Prospectus and incorporated in this Prospectus by reference.
TWELVE MONTHS YEAR ENDED DECEMBER 31, ENDED -------------------------------- SEPTEMBER 30, 1993 1994 1995 1996 1997 1998 ---- ---- ---- ---- ---- ------------- 0.80(1) 2.73 2.77 3.40 0.57(1) (1.30)(1)
- --------------- (1) Our ratios of earnings to fixed charges of 0.80, 0.57 and (1.30) for the years ended December 31, 1993 and 1997 and for the twelve months ended September 30, 1998, respectively, indicate that earnings were inadequate to cover fixed charges. We required additional earnings of approximately $37 million in 1993, approximately $62 million in 1997 and approximately $337 million in the twelve months ended September 30, 1998 to attain a one-to-one ratio of earnings to fixed charges. Excluding disallowed Clinton Power Station plant costs, our ratio of earnings to fixed charges would have been 2.25 for the year ended December 31, 1993. Excluding the write-off related to the discontinued application of SFAS 71, "Accounting for the Effects of Certain Types of Regulation," for the generation segment of our business, our ratio of earnings to fixed charges would have been 2.73 for the year ended December 31, 1997 and 0.84 for the twelve months ended September 30, 1998. Earnings used in the calculation of the ratio of earnings to fixed charges include the allowance for funds used during construction and the deferred financing costs associated with our Clinton Power Station and are before deduction of income taxes and fixed charges. Fixed charges include interest on long-term debt, related amortization of debt discount, premium, and expense, other interest and that portion of rent expense which is estimated to be representative of the interest component. DESCRIPTION OF THE NEW MORTGAGE BONDS The following description applies to any offering of Securities by the Company consisting of New Mortgage Bonds. GENERAL The New Mortgage Bonds will be bonds, notes or other evidences of indebtedness authenticated and delivered under a General Mortgage Indenture and Deed of Trust between the Company and Harris Trust and Savings Bank (the "New Mortgage Trustee"), dated as of November 1, 1992. The New Mortgage Bonds will be issued in one or more series in registered form, without coupons. The General Mortgage and Deed of Trust, as supplemented by various supplemental indentures, including one or more supplemental indentures relating to the New Mortgage Bonds, is referred to in this Prospectus as the "New Mortgage." The summaries under this heading do not purport to be complete and are subject to the detailed provisions of the New Mortgage. Capitalized terms used under this heading which are not otherwise defined in this Prospectus shall have the meanings ascribed thereto in the New Mortgage. Wherever particular provisions of the New Mortgage or terms defined therein are referred to, such provisions or definitions are incorporated by reference as a part of the statements made herein and such statements are qualified in their entirety by such reference. References to article and section numbers in this description of the New Mortgage Bonds, unless otherwise indicated, are references to article and section numbers of the New Mortgage. Reference is made to the Prospectus Supplement for a description of the following terms of each series of New Mortgage Bonds in respect of which this Prospectus is being delivered: - the title of such New Mortgage Bonds; - the limit, if any, upon the aggregate principal amount of such New Mortgage Bonds; 5 7 - the date or dates on which the principal of such New Mortgage Bonds is payable; - the rate or rates at which such New Mortgage Bonds will bear interest, if any, the date or dates from which such interest will accrue, the dates on which such interest will be payable ("Interest Payment Dates"), and the regular record dates for the interest payable on such Interest Payment Dates; - the option, if any, of the Company to redeem such New Mortgage Bonds and the periods within which or the dates on which, the prices at which and the terms and conditions upon which, such New Mortgage Bonds may be redeemed, in whole or in part, upon the exercise of such option; - the obligation, if any, of the Company to redeem or purchase such New Mortgage Bonds pursuant to any sinking fund or analogous provisions or at the option of the Holder and the periods within which or the dates on which, the prices at which and the terms and conditions upon which such New Mortgage Bonds will be redeemed or purchased, in whole or in part, pursuant to such obligation; - the denominations in which such New Mortgage Bonds will be issuable; - whether such New Mortgage Bonds are to be issued in whole or in part in the form of one or more global New Mortgage Bonds and, if so, the identity of the depositary for such global New Mortgage Bonds; and - any other terms of such New Mortgage Bonds not inconsistent with the provisions of the New Mortgage. REDEMPTION OF THE NEW MORTGAGE BONDS Any terms for the optional or mandatory redemption of New Mortgage Bonds will be set forth in the Prospectus Supplement. Except as shall otherwise be provided in the applicable Prospectus Supplement with respect to New Mortgage Bonds redeemable at the option of the Holder, New Mortgage Bonds will be redeemable only upon notice by mail not less than 30 days prior to the date fixed for redemption, and, if less than all the New Mortgage Bonds of a series, or any Tranche thereof, are to be redeemed, the particular New Mortgage Bonds to be redeemed will be selected by such method as shall be provided for any particular series or Tranche, or in the absence of any such provision, by such method as the Bond Registrar deems fair and appropriate. (See Sections 5.03 and 5.04.) Any notice of redemption at the option of the Company may state that such redemption shall be conditioned upon receipt by the New Mortgage Trustee, on or prior to the date fixed for such redemption, of money sufficient to pay the principal of and premium, if any, and interest, if any, on such New Mortgage Bonds and that if such money has not been so received, such notice will be of no force and effect and the Company will not be required to redeem such New Mortgage Bonds. (See Section 5.04.) While the New Mortgage contains provisions for the maintenance of the Mortgaged Property, it does not contain any provisions for a maintenance or sinking fund and, except as may be provided in a Supplemental Indenture (and described in the applicable Prospectus Supplement) there will be no provisions for any such funds for the New Mortgage Bonds. SECURITY General. Except as discussed below, New Mortgage Bonds now or hereafter issued under the New Mortgage will be secured primarily by: - if applicable, bonds ("First Mortgage Bonds") issued under the Company's Mortgage and Deed of Trust, dated November 1, 1943 (the "First Mortgage"), to Harris Trust and Savings Bank, as trustee (the "First Mortgage Trustee"), and delivered to the New Mortgage Trustee under the New Mortgage; as discussed under "Description of First Mortgage Bonds," the First Mortgage constitutes, subject to certain exceptions, a first mortgage lien on substantially all properties of the Company; and 6 8 - the lien of the New Mortgage on the Company's properties used in the generation, purchase, transmission, distribution and sale of electricity or gas, which lien is junior to the lien of the First Mortgage. As described below under "Pledged Bonds," following a merger or consolidation of another corporation into the Company, the Company could deliver to the New Mortgage Trustee bonds issued under an existing mortgage on the properties of such other corporation in lieu of or in addition to bonds issued under the First Mortgage. In such event, the New Mortgage Bonds would be secured, additionally, by such bonds and by the lien of the New Mortgage on the properties of such other corporation, which would be junior to the liens of such existing mortgage and the First Mortgage. The First Mortgage and all such other mortgages are hereinafter, collectively, called the "Prior Mortgages," and all bonds issued under the Prior Mortgages and delivered to the New Mortgage Trustee are hereinafter collectively called the "Pledged Bonds." If and when no Prior Mortgages are in effect, the New Mortgage will constitute a first mortgage lien on all property of the Company subject thereto. As described below under "Pledged Bonds," the only Prior Mortgage at the date of this Prospectus is the First Mortgage. The Company currently intends to pursue the satisfaction and discharge of the First Mortgage when the only outstanding First Mortgage Bonds are Pledged Bonds held by the New Mortgage Trustee. From and after the satisfaction and discharge of the First Mortgage, the New Mortgage Bonds will cease to be secured by the Pledged Bonds and instead will be secured primarily by the lien of the New Mortgage on the Company's properties used in the generation, purchase, transmission, distribution and sale of electricity or gas. Pledged Bonds. The Pledged Bonds will be issued and delivered to, and registered in the name of, the New Mortgage Trustee or its nominee and will be owned and held by the New Mortgage Trustee, subject to the provisions of the New Mortgage, for the benefit of the Holders of all New Mortgage Bonds Outstanding from time to time, and the Company will have no interest in such Pledged Bonds. Pledged Bonds issued as the basis for the authentication and delivery of New Mortgage Bonds (a) will mature on the same dates, and in the same principal amounts, as such New Mortgage Bonds and (b) will contain, in addition to any mandatory redemption provisions applicable to all Pledged Bonds Outstanding under the related Prior Mortgage, mandatory redemption provisions correlative to provisions for mandatory redemption, or for redemption at the option of the Holder, of such New Mortgage Bonds. Pledged Bonds issued as the basis for authentication and delivery of a series or Tranche of New Mortgage Bonds (x) may, but need not, bear interest, any such interest to be payable at the same times as interest on the New Mortgage Bonds of such series or Tranche and (y) may, but need not, contain provisions for the redemption thereof at the option of the Company, any such redemption to be made at a redemption price or prices not less than the principal amount of such Pledged Bonds. (See Sections 4.02 and 7.01.) Any payment by the Company of principal of or premium or interest on the Pledged Bonds held by the New Mortgage Trustee will be applied by the New Mortgage Trustee to the payment of any principal, premium or interest, as the case may be, in respect of the New Mortgage Bonds which is then due, and, to the extent of such application, the obligation of the Company under the New Mortgage to make such payment in respect of the New Mortgage Bonds will be deemed satisfied and discharged. If, at the time of any such payment of principal of Pledged Bonds, there shall be no principal then due in respect of the New Mortgage Bonds, the proceeds of such payment will be deemed to constitute Funded Cash and will be held by the New Mortgage Trustee as part of the Mortgaged Property, to be withdrawn, used or applied as provided in the New Mortgage. If, at the time of any such payment of premium or interest on Pledged Bonds, there shall be no premium or interest, as the case may be, then due in respect of the New Mortgage Bonds, the proceeds of such payments will be remitted to the Company at its request. (See Section 7.02 and "-- Withdrawal of Cash" below). Any payment by the Company of principal of or premium or interest on New Mortgage Bonds authenticated and delivered on the basis of the deposit with the New Mortgage Trustee of Pledged Bonds (other than by application of the proceeds of payments in respect of such Pledged Bonds) will, to the extent thereof, be deemed to satisfy and discharge the obligation of the Company, if any, to make a payment of principal, premium or interest, as the case may be, in respect of such Pledged Bonds which is then due. 7 9 The New Mortgage Trustee may not sell, assign or otherwise transfer any Pledged Bonds except to a successor trustee under the New Mortgage. (See Section 7.04.) At the time any New Mortgage Bonds of any series or Tranche which have been authenticated and delivered upon the basis of Pledged Bonds cease to be Outstanding (other than as a result of the application of the proceeds of the payment or redemption of such Pledged Bonds), the New Mortgage Trustee shall surrender to or upon the order of the Company an equal principal amount of such Pledged Bonds having the same Stated Maturity and mandatory redemption provisions as such New Mortgage Bonds. (See Section 7.03.) At the date of this Prospectus, the only Prior Mortgage is the First Mortgage and the only Pledged Bonds issuable at this time are First Mortgage Bonds issuable thereunder. The New Mortgage provides that in the event of the merger or consolidation of another company with or into the Company, an existing mortgage constituting a lien on properties of such other company prior to the lien of the New Mortgage may be designated by the Company as an additional Prior Mortgage. Bonds thereafter issued under such additional mortgage would be Pledged Bonds and could provide the basis for the authentication and delivery of New Mortgage Bonds under the New Mortgage. (See Section 7.06.) When no Pledged Bonds are Outstanding under a Prior Mortgage except for Pledged Bonds held by the New Mortgage Trustee, then, at the request of the Company and subject to satisfaction of certain conditions, the New Mortgage Trustee will surrender the Pledged Bonds for cancellation, and the related Prior Mortgage will be satisfied and discharged, the lien of such Prior Mortgage on the Company's property will cease to exist and the priority of the lien of the New Mortgage will be increased. (See Section 7.07.) The Company currently intends to request the New Mortgage Trustee to surrender the Pledged Bonds for cancellation and to pursue the satisfaction and discharge of the First Mortgage when the only outstanding First Mortgage Bonds are Pledged Bonds. There can be no assurance as to whether and when the Pledged Bonds will be cancelled and the First Mortgage satisfied and discharged. The New Mortgage contains no restrictions on the issuance of bonds issued under Prior Mortgages in addition to Pledged Bonds issued to the New Mortgage Trustee as the basis for the authentication and delivery of New Mortgage Bonds. First Mortgage Bonds may currently be issued under the First Mortgage on the basis of property additions, retirements of bonds previously issued under the First Mortgage and cash deposited with the First Mortgage Trustee. (See "Description of First Mortgage Bonds.") Lien of the New Mortgage. The properties of the Company used in the generation, purchase, transmission, distribution and sale of electricity and gas will be subject to the lien of the New Mortgage. Substantially all of such property, while subject to the lien of the New Mortgage, will be also subject to the prior lien of the First Mortgage. The New Mortgage Bonds will have the benefit of the first mortgage lien of the First Mortgage on such property, and the benefit of the prior lien of any additional Prior Mortgage on any property subject thereto, to the extent of the aggregate principal amount of Pledged Bonds, issued under the respective Prior Mortgages, held by the New Mortgage Trustee. However, as described above, the Company may cancel the Pledged Bonds issued under the First Mortgage as well as the First Mortgage itself. The lien of the New Mortgage is subject to Permitted Liens which include tax liens and other governmental charges which are not delinquent and which are being contested, construction and material-men's liens, certain judgment liens, easement, reservations and rights of others (including governmental entities) in, and defects of title in, certain property of the Company, certain leasehold interests, liens on the Company's pollution control and sewage and solid waste facilities and certain other liens and encumbrances. (See Section 1.01.) There are excepted from the lien of the New Mortgage, among other things: - cash and securities not paid to, deposited with or held by the New Mortgage Trustee under the New Mortgage; - contracts, leases and other agreements of all kinds, contract rights, bills, notes and other instruments, accounts receivable, claims, certain intellectual property rights and other general intangibles; - automobiles, other vehicles, movable equipment, aircraft and vessels; 8 10 - all goods, wares and merchandise held for sale in the ordinary course of business or for the use by or the benefit of the Company; - nuclear fuel; - fuel, materials, supplies and other personal property consumable in the operations of the Company's business; - computers, machinery and equipment; - coal, ore, gas, oil, minerals and timber mined or extracted from the land; - electric energy, gas, steam water and other products generated, produced or purchased; - leasehold interests; and - all books and records. (See Section 1.01.) Without the consent of the Holders, the Company and the New Mortgage Trustee may enter into supplemental indentures to subject to the lien of the New Mortgage additional property, whether or not used in the electric or gas utility businesses (including property which would otherwise be excepted from such lien). (See Section 14.01.) Such property, so long as the same would otherwise constitute Property Additions (as described below), would thereupon constitute Property Additions and be available as a basis for the issuance of New Mortgage Bonds. (See "Issuance of Additional New Mortgage Bonds.") The New Mortgage contains provisions subjecting after-acquired property to the lien thereof, subject to the prior lien of the First Mortgage. These provisions are limited in the case of consolidation or merger (whether or not the Company is the surviving corporation) or sale of substantially all of the Company's assets. In the event of consolidation or merger or the transfer of all the mortgaged property as or substantially as an entirety, the New Mortgage will not be required to be a lien upon any of the properties then owned or thereafter acquired by the successor corporation except properties acquired from the Company in or as a result of such transaction and improvements, extensions and additions to such properties and renewals, replacements and substitutions of or for any part or parts of such properties. (See Article Thirteen and "-- Consolidation, Merger, Conveyance, Transfer or Lease.") In addition, after-acquired property may be subject to vendors' liens, purchase money mortgages and other liens thereon at the time of acquisition thereof, including the lien of any Prior Mortgage. The New Mortgage provides that the New Mortgage Trustee will have a lien, prior to the lien on behalf of the holders of New Mortgage Bonds, upon Mortgaged Property, for the payment of its reasonable compensation and expenses and for indemnity against certain liabilities. (See Section 11.07.) CREDIT ENHANCEMENT See the Prospectus Supplement for credit enhancement terms, if any, of the New Mortgage Bonds. ISSUANCE OF ADDITIONAL NEW MORTGAGE BONDS The maximum principal amount of New Mortgage Bonds which may be issued under the New Mortgage is unlimited. (See Section 3.01.) New Mortgage Bonds of any series may be issued from time to time under Article Four of the New Mortgage on the basis of, and in an aggregate principal amount not exceeding: - the aggregate principal amount of Pledged Bonds issued and delivered to the New Mortgage Trustee; - 75% of the Cost or Fair Value (whichever is less) of Property Additions (as described below) which do not constitute Funded Property (generally, Property Additions which have been made the basis of the authentication and delivery of New Mortgage Bonds, the release of mortgaged property or cash withdrawals, or which have been substituted for retired property) after certain deductions and additions, primarily including adjustments to offset property retirements; 9 11 - the aggregate principal amount of Retired Bonds (which consist of New Mortgage Bonds no longer outstanding under the New Mortgage which have not been used for certain other purposes under the New Mortgage and which are not to be paid, redeemed or otherwise retired by the application of Funded Cash), but if Pledged Bonds had been made the basis for the authentication and delivery of such Retired Bonds, only if the related Prior Mortgage has been discharged; and - an amount of cash deposited with the New Mortgage Trustee. In general, the issuance of New Mortgage Bonds is subject to Adjusted Net Earnings of the Company for 12 consecutive months within the preceding 18 months being at least twice the Annual Interest Requirements on all New Mortgage Bonds at the time outstanding, New Mortgage Bonds then applied for, all outstanding Prior Bonds other than Pledged Bonds held by the New Mortgage Trustee under the New Mortgage, and all other indebtedness (with certain exceptions) secured by a lien prior to the lien of the New Mortgage, except that no such net earnings requirement need be met if the additional New Mortgage Bonds to be issued are to have no Stated Interest Rate prior to Maturity. The Company is not required to satisfy the net earnings requirement prior to issuance of New Mortgage Bonds as provided in the first bullet point of the preceding paragraph, if the Pledged Bonds issued and delivered to the New Mortgage Trustee as the basis for such issuance have been authenticated and delivered under the related Prior Mortgage on the basis of retired Prior Bonds unless (a) the Stated Maturity of such retired Prior Bonds is a date more than two years after the date of the Company Order requesting the authentication and delivery of such New Mortgage Bonds and (b) the Stated Interest Rate, if any, on such retired Prior Bonds immediately prior to Maturity is less than the Stated Interest Rate, if any, on such New Mortgage Bonds to be in effect upon the initial authentication and delivery thereof. In addition, the Company is not required to satisfy the net earnings requirement prior to issuance of New Mortgage Bonds as provided in the third bullet point of the preceding paragraph. In general, the interest requirement with respect to variable interest rate indebtedness, if any, is determined with reference to the rate or rates in effect on the date immediately preceding such determination or the rate to be in effect upon initial authentication. (See Section 1.03 and Article Four.) Adjusted Net Earnings are calculated before, among other things, provisions for income taxes; depreciation or amortization of property; interest on any indebtedness and amortization of debt discount and expense; any non-recurring charge to income 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 item in the Company's books of account; and any refund of revenues previously collected or accrued by the Company subject to possible refund. Adjusted Net Earnings also do not take into account profits or losses from the sale or other disposition of property, or non-recurring charges of any kind or nature, whether items of revenue or expense. With respect to New Mortgage Bonds of a series subject to a Periodic Offering (such as a medium-term note program), the New Mortgage Trustee will be entitled to receive a certificate evidencing compliance with the net earnings requirements only once, at or prior to the time of the first authentication and delivery of the New Mortgage Bonds of such series. (See Sections 1.03 and 4.01.) Property Additions generally include any property which is owned by the Company and is subject to the lien of the New Mortgage except (with certain exceptions) goodwill or going concern value rights, or any property the cost of acquisition or construction of which is properly chargeable to an operating expense account of the Company. (See Section 1.04.) Unless otherwise provided in the applicable Prospectus Supplement or supplement thereto, the Company will issue the New Mortgage Bonds on the basis of Pledged Bonds (i.e., First Mortgage Bonds) issued under its First Mortgage. RELEASE OF PROPERTY The Company may obtain the release from the lien of the New Mortgage of any Funded Property, except for cash held by the New Mortgage Trustee, upon delivery to the New Mortgage Trustee of cash equal in 10 12 amount to the amount, if any, by which the Cost of the property to be released (or, if less, the Fair Value of such property at the time it became Funded Property) exceeds the aggregate of: - the principal amount, subject to certain limitations, of obligations secured by purchase money mortgage upon the property to be released delivered to the New Mortgage Trustee; - the Cost or Fair Value (whichever is less) of certified Property Additions not constituting Funded Property after certain deductions and additions, primarily including adjustments to offset property retirements (except that such adjustments need not be made if such Property Additions were acquired or made within the 90-day period preceding the release); - an amount equal to 133 1/3% of the aggregate principal amount of New Mortgage Bonds the Company would be entitled to issue on the basis of Retired Bonds (with such entitlement being waived by operation of such release); - an amount equal to 133 1/3% of the aggregate principal amount of New Mortgage Bonds delivered to the New Mortgage Trustee (with such New Mortgage Bonds to be canceled by the New Mortgage Trustee); - the deposit of cash or, to a limited extent, the principal amount of obligations secured by purchase money mortgages upon the property released delivered to the trustee or other holder of a lien prior to the lien of the New Mortgage; and - any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released. Property which is not Funded Property may generally be released from the lien of the New Mortgage without depositing any cash or property with the New Mortgage Trustee as long as (a) the aggregate amount of Cost or Fair Value (whichever is less) of all Property Additions which do not constitute Funded Property (excluding the property to be released) after certain deductions and additions, primarily including adjustments to offset property retirements, is not less than zero or (b) the Cost or Fair Value (whichever is less) of property to be released does not exceed the aggregate amount of the Cost or Fair Value (whichever is less) of Property Additions acquired or made within the 90-day period preceding the release. The New Mortgage provides simplified procedures for the release of property which has been released from the lien of a Prior Mortgage, minor properties and property taken by eminent domain, and provides for dispositions of certain obsolete property and grants or surrender of certain rights without any release or consent by the New Mortgage Trustee. If any property released from the lien of the New Mortgage continues to be owned by the Company after such release, the New Mortgage will not become a lien on any improvement, extension or addition to such property or renewals, replacements or substitutions of or for any part or parts of such property. (See Article Eight.) WITHDRAWAL OF CASH Subject to certain limitations, cash held by the New Mortgage Trustee may (1) be withdrawn by the Company (a) to the extent of the Cost or Fair Value (whichever is less) of Property Additions not constituting Funded Property, after certain deductions and additions, primarily including adjustments to offset retirements or (b) in an amount equal to 133 1/3% of the aggregate principal amount of New Mortgage Bonds that the Company would be entitled to issue on the basis of Retired Bonds (with such entitlement being waived by operation of such withdrawal) or (c) in an amount equal to 133 1/3% of the aggregate principal amount of any Outstanding New Mortgage Bonds delivered to the New Mortgage Trustee, or (2) upon the request of the Company, be applied to (a) the purchase of New Mortgage Bonds (at prices not exceeding 133 1/3% of the principal amount thereof) or (b) the redemption or payment at Stated Maturity of New Mortgage Bonds (with any New Mortgage Bonds received by the New Mortgage Trustee pursuant to these provisions being cancelled by the New Mortgage Trustee) (see Section 8.06); provided, however, that cash 11 13 deposited with the New Mortgage Trustee as the basis for the authentication and delivery of New Mortgage Bonds, as well as cash representing a payment of principal of Pledged Bonds, may only be withdrawn in an amount equal to the aggregate principal amount of New Mortgage Bonds the Company would be entitled to issue on any basis (with such entitlement being waived by operation of such withdrawal), or may, upon the request of the Company, be applied to the purchase, redemption or payment of New Mortgage Bonds at prices not exceeding, in the aggregate, the principal amount thereof. (See Sections 4.05 and 7.02.) CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE The Company may not consolidate with or merge into any other corporation or convey, transfer or lease the Mortgaged Property as or substantially as an entirety to any Person unless (a) such transaction is on such terms as will fully preserve in all material respects the lien and security of the New Mortgage and the rights and powers of the New Mortgage Trustee and Holders, (b) the corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the Mortgaged Property as or substantially as an entirety is a corporation organized and existing under the laws of the United States of America or any State or Territory thereof or the District of Columbia, and such corporation executes and delivers to the New Mortgage Trustee a supplemental indenture, which contains an assumption by such corporation of the due and punctual payment of the principal of and premium, if any, and interest, if any, on the New Mortgage Bonds and the performance of all of the covenants of the Company under the New Mortgage and which contains a grant, conveyance, transfer and mortgage by the corporation confirming the lien of the New Mortgage on the Mortgaged Property and subjecting to such lien all property thereafter acquired by the corporation which shall constitute an improvement, extension or addition to the Mortgaged Property or a renewal, replacement or substitution of or for any part thereof, and, at the election of the corporation, subjecting to the lien of the New Mortgage such other property then owned or thereafter acquired by the corporation as the corporation shall specify and (c) in the case of a lease, such lease will be made expressly subject to termination by the Company or the New Mortgage Trustee at any time during the continuance of an Event of Default. (See Section 13.01.) MODIFICATION OF NEW MORTGAGE Without the consent of any Holders, the Company and the New Mortgage Trustee may enter into one or more supplemental indentures for any of the following purposes: - to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company in the New Mortgage and in the New Mortgage Bonds; or - to add one or more covenants of the Company or other provisions for the benefit of all Holders or for the benefit of the Holders of, or to remain in effect only so long as there shall be Outstanding, New Mortgage Bonds of one or more specified series, or one or more Tranches thereof, or to surrender any right or power conferred upon the Company by the New Mortgage; or - to correct or amplify the description of any property at any time subject to the lien of the New Mortgage, or better to assure, convey and confirm to the New Mortgage Trustee any property subject or required to be subjected to the lien of the New Mortgage, or to subject to the lien of the New Mortgage additional property; or - to convey, transfer and assign to the New Mortgage Trustee and to subject to the Lien of the New Mortgage with the same force and effect as if included in the New Mortgage, property of subsidiaries of the Company used or to be used for one or more purposes which if owned by the Company would constitute property used or to be used for one or more of the Primary Purposes of the Company's business, which property shall for all purposes of the New Mortgage be deemed to be property of the Company, together with such other provisions as may be appropriate to express the respective rights of the New Mortgage Trustee and the Company in regard thereto; or - to change or eliminate any provision of the New Mortgage or to add any new provision to the New Mortgage, provided that if such change, elimination or addition adversely affects the interests of the 12 14 Holders of the New Mortgage Bonds of any series or Tranche in any material respect, such change, elimination or addition will become effective with respect to such series or Tranche only when no New Mortgage Bond of such series or Tranche remains outstanding under the New Mortgage; or - to establish the form or terms of the New Mortgage Bonds of any series or Tranche as permitted by the New Mortgage; or - to provide for the authentication and delivery of bearer securities and coupons appertaining thereto representing interest, if any, thereon and for the procedures for the registration, exchange and replacement thereof and for the giving of notice to, and the solicitation of the vote or consent of, the holders thereof, and for any and all other matters incidental thereto; or - to evidence and provide for the acceptance of appointment by a successor trustee or by a co-trustee or separate trustee; or - to provide for the procedures required to permit the utilization of a noncertificated system of registration for all, or any series or tranche of, the New Mortgage Bonds; or - to change any place where (a) the principal of and premium, if any, and interest, if any, on the New Mortgage Bonds of any series, or any Tranche thereof, will be payable, (b) any New Mortgage Bonds of any series, or any Tranche thereof, may be surrendered for registration of transfer, (c) any New Mortgage Bonds of any series, or any Tranche thereof, may be surrendered for exchange and (d) notices and demands to or upon the Company in respect of the New Mortgage Bonds of any series, or any Tranche thereof, and the New Mortgage may be served; or - to cure any ambiguity, to correct or supplement any provision therein which may be defective or inconsistent with any other provision therein, or to make any changes to the provisions thereof or to add other provisions with respect to matters and questions arising under the New Mortgage, so long as such other changes or additions do not adversely affect the interests of the Holders of New Mortgage Bonds of any series or Tranche in any material respect; or - to reflect changes in Generally Accepted Accounting Principles; or - to provide the terms and conditions of the exchange or conversion, at the option of the holders of New Mortgage Bonds of any series, of the New Mortgage Bonds of such series for or into New Mortgage Bonds of other series or stock or other securities of the Company or any other corporation; or - to change the words "Mortgage Bonds" to "First Mortgage Bonds" in the descriptive title of all Outstanding New Mortgage Bonds at any time after the discharge of the First Mortgage; or - to comply with the rules or regulations of any national securities exchange on which any of the New Mortgage Bonds may be listed. (See Section 14.01.) Without limiting the generality of the foregoing, if the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), is amended after the date of the New Mortgage in such a way as to require changes to the New Mortgage or the incorporation therein of additional provisions or so as to permit changes to, or the elimination of, provisions which, at the date of the New Mortgage or at any time thereafter, were required by the Trust Indenture Act to be contained in the New Mortgage, the Company and the New Mortgage Trustee may, without the consent of any Holders, enter into one or more supplemental indentures to evidence or effect such amendment. (See Section 14.01.) Except as provided above, the consent of the Holders of a majority in aggregate principal amount of the New Mortgage Bonds of all series then Outstanding, considered as one class, is required for the purpose of adding any provisions to, or changing in any manner, or eliminating any of the provisions of, the New Mortgage pursuant to one or more supplemental indentures; provided, however, if less than all of the series of New Mortgage Bonds Outstanding are directly affected by a proposed supplemental indenture, then the consent only of the Holders of a majority in aggregate principal amount of Outstanding New Mortgage Bonds 13 15 of all series so directly affected, considered as one class, will be required; and provided, further, that if the New Mortgage Bonds of any series have been issued in more than one Tranche and if the proposed supplemental indenture directly affects the rights of the Holders of one or more, but less than all, such Tranches, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding New Mortgage Bonds of all Tranches so directly affected, considered as one class, will be required; and provided, further, that no such amendment or modification may, without the consent of each Holder of the Outstanding New Mortgage Bonds of each series or Tranche directly affected thereby: - change the Stated Maturity of the principal of, or any installment of principal of or interest on, any New Mortgage Bond, or reduce the principal amount thereof or the rate of interest thereon (or the amount of any installment of interest thereon) or change the method of calculating such rate or reduce any premium payable upon the redemption thereof, or reduce the amount of the principal of a Discount Bond that would be due and payable upon a declaration of acceleration of maturity or change the coin or currency (or other property) in which any New Mortgage Bond or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the redemption date); - permit the creation of any lien ranking prior to the lien of the New Mortgage with respect to all or substantially all of the Mortgaged Property or terminate the lien of the New Mortgage on all or substantially all of the Mortgaged Property, or deprive such Holder of the benefit of the security of the lien of the New Mortgage: - reduce the percentage in principal amount of the Outstanding New Mortgage Bonds of such series or Tranche, the consent of the Holders of which is required for any such supplemental indenture, or the consent of the Holders of which is required for any waiver of compliance with any provision of the New Mortgage or of any default thereunder and its consequences, or reduce the requirements for quorum or voting; or - modify certain of the provisions of the New Mortgage relating to supplemental indentures, waivers of certain covenants and waivers of past defaults. A supplemental indenture which changes or eliminates any covenant or other provision of the New Mortgage which has expressly been included solely for the benefit of the Holders of, or which is to remain in effect only so long as there shall be Outstanding New Mortgage Bonds of one or more specified series, or one or more Tranches thereof, or modifies the rights of the Holders of New Mortgage Bonds of such series or Tranches with respect to such covenant or other provision, will be deemed not to affect the rights under the New Mortgage of the Holders of the New Mortgage Bonds of any other series or Tranche. (See Section 14.02.) WAIVER The Holders of a majority in aggregate principal amount of all New Mortgage Bonds may waive the Company's obligations to comply with certain covenants, including the Company's obligation to maintain its corporate existence and properties, pay taxes and discharge liens, maintain certain insurance and to make such recordings and filings as are necessary to protect the security of the Holders and the rights of the New Mortgage Trustee, provided that such waiver occurs before the time such compliance is required. The Holders of a majority of the aggregate principal amount of Outstanding New Mortgage Bonds of all affected series or Tranches, considered as one class, may waive, before the time for such compliance, compliance with the Company's obligations to maintain an office or agency where the New Mortgage Bonds of such series or Tranches may be surrendered for payment, registration, transfer or exchange, and compliance with any other covenant specified in a supplemental indenture respecting such series or Tranches. (See Section 6.09.) 14 16 EVENTS OF DEFAULT Each of the following events constitutes an Event of Default under the New Mortgage: - failure to pay interest on any New Mortgage Bond within 45 days after the same becomes due; - failure to pay principal of or premium, if any, on any New Mortgage Bond within three business days after its Maturity; - failure to perform or breach of any covenant or warranty of the Company in the New Mortgage (other than a covenant or warranty a default in the performance of which or breach of which is dealt with elsewhere under this paragraph) for a period of 60 days after there has been given to the Company by the New Mortgage Trustee, or to the Company and the New Mortgage Trustee by the Holders of at least 25% in principal amount of Outstanding New Mortgage Bonds, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default," unless the New Mortgage Trustee, or the New Mortgage Trustee and the Holders of a principal amount of New Mortgage Bonds not less than the principal amount of New Mortgage Bonds the Holders of which gave such notice, as the case may be, agree in writing to an extension of such period prior to its expiration; provided, however, that the New Mortgage Trustee, or the New Mortgage Trustee and such Holders, as the case may be, will be deemed to have agreed to an extension of such period if corrective action has been initiated by the Company within such period and is being diligently pursued; - certain events relating to reorganization, bankruptcy or insolvency of the Company or the appointment of a receiver or trustee for its property; or - the occurrence of a Matured Event of Default under any Prior Mortgage; provided that the waiver or cure of any such event of default and the rescission and annulment of the consequences thereof will constitute a waiver of the corresponding Event of Default under the New Mortgage and a rescission and annulment of the consequences thereof. (See Section 10.01.) REMEDIES If an Event of Default occurs and is continuing, then the New Mortgage Trustee or the Holders of not less than 33% in principal amount of New Mortgage Bonds then Outstanding may declare the principal amount (or if any of the New Mortgage Bonds are Discount Bonds, such portion of the principal amount as may be provided for such Discount Bonds pursuant to the terms of the New Mortgage) of all of the New Mortgage Bonds, together with the premium, if any, and interest accrued, if any, thereon to be immediately due and payable. At any time after such declaration of the maturity of the New Mortgage Bonds then Outstanding, but before the sale of any of the Mortgaged Property and before a judgment or decree for payment of money shall have been obtained by the New Mortgage Trustee as provided in the New Mortgage, the Event or Events of Default giving rise to such declaration of acceleration will, without further act, be deemed to have been waived, and such declaration and its consequences will, without further act, be deemed to have been rescinded and annulled, if: - the Company has paid or deposited with the New Mortgage Trustee a sum sufficient to pay: - all overdue interest, if any, on all New Mortgage Bonds then Outstanding; - the principal of and premium, if any, on any New Mortgage Bonds then Outstanding which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such New Mortgage Bonds; and - all amounts due to the New Mortgage Trustee as compensation and reimbursement as provided in the New Mortgage; and 15 17 - any other Event or Events of Default, other than the non-payment of the principal of New Mortgage Bonds which shall have become due solely by such declaration of acceleration, shall have been cured or waived as provided in the New Mortgage. (See Sections 10.02 and 10.17.) The New Mortgage provides that, under certain circumstances and to the extent permitted by law, if an Event of Default occurs and is continuing, the New Mortgage Trustee has the power to take possession of, and to hold, operate and manage, the Mortgaged Property, or with or without entry, to sell the Mortgaged Property. If the Mortgaged Property is sold, whether by the New Mortgage Trustee or pursuant to judicial proceedings, the principal of the Outstanding New Mortgage Bonds, if not previously due, will become immediately due, together with premium, if any, and any accrued interest. (See Sections 10.03, 10.04 and 10.05.) If an Event of Default occurs and is continuing, the Holders of a majority in principal amount of the New Mortgage Bonds then Outstanding will have the right to direct the time, method and place of conducting any proceedings for any remedy available to the New Mortgage Trustee or exercising any trust or power conferred on the New Mortgage Trustee, provided that (a) such direction does not conflict with any rule of law or with the New Mortgage, and could not involve the New Mortgage Trustee in personal liability in circumstances where indemnity would not, in the New Mortgage Trustee's sole discretion, be adequate and (b) the New Mortgage Trustee may take any other actions deemed proper by the New Mortgage Trustee which is not inconsistent with such discretion. (See Section 10.16.) The New Mortgage provides that no Holder of any New Mortgage Bond will have any right to institute any proceeding, judicial or otherwise, with respect to the New Mortgage or the appointment of a receiver or trustee, or for any other remedy thereunder unless (a) such Holder has previously given to the New Mortgage Trustee written notice of a continuing Event of Default; (b) the Holders of a majority in aggregate principal amount of the New Mortgage Bonds then Outstanding have made written request to the New Mortgage Trustee to institute proceedings in respect of such Event of Default and have offered the New Mortgage Trustee reasonable indemnity against costs and liabilities incurred in complying with such request; and (c) for sixty days after receipt of such notice, the New Mortgage Trustee has failed to institute any such proceeding and no direction inconsistent with such request has been given to the New Mortgage Trustee during such sixty-day period by the Holders of a majority in aggregate principal amount of New Mortgage Bonds then Outstanding. Furthermore, no Holder will be entitled to institute any such action if and to the extent that such action would disturb or prejudice the rights of other Holders. (See Section 10.11.) Notwithstanding that the right of a Holder to institute a proceeding with respect to the New Mortgage is subject to certain conditions precedent, each Holder of a New Mortgage Bond has the right, which is absolute and unconditional, to receive payment of the principal of and premium, if any, and interest, if any, on such New Mortgage Bond when due and to institute suit for the enforcement of any such payment, and such rights may not be impaired without the consent of such Holder. (See Section 10.12.) The New Mortgage provides that the New Mortgage Trustee must give the Holders notice of any default under the New Mortgage to the extent required by the Trust Indenture Act, unless such default shall have been cured or waived, except that no such notice to Holders of a default of the character described in the third bullet point under "-- Events of Default" may be given until at least 45 days after the occurrence thereof. (See Section 11.02.) The Trust Indenture Act currently permits the New Mortgage Trustee to withhold notices of default (except for certain payment defaults) if the New Mortgage Trustee in good faith determines the withholding of such notice to be in the interest of the Holders. As a condition precedent to certain actions by the New Mortgage Trustee in the enforcement of the lien of the New Mortgage and institution of action on the New Mortgage Bonds, the New Mortgage Trustee may require adequate indemnity against costs, expenses and liabilities to be incurred in connection therewith. (See Sections 10.11 and 11.01.) In addition to every other right and remedy provided in the New Mortgage, the New Mortgage Trustee may exercise any right or remedy available to the New Mortgage Trustee in its capacity as owner and holder 16 18 of Pledged Bonds which arises as a result of a default or Matured Event of Default under any Prior Mortgage, whether or not an Event of Default under the New Mortgage has occurred and is continuing. (See Section 10.20.) DEFEASANCE Any New Mortgage Bond or Bonds, or any portion of the principal amount thereof, will be deemed to have been paid for purposes of the New Mortgage and the entire indebtedness of the Company in respect thereof will be deemed to have been satisfied and discharged, if there has been irrevocably deposited with the New Mortgage Trustee, in trust: (a) money in the amount which will be sufficient, or (b) Eligible Obligations (as described below) which do not contain provisions permitting the redemption or other prepayment thereof at the option of the issuer thereof, the principal of and the interest on which when due, without any regard to reinvestment thereof, will provide monies which will be sufficient, or (c) a combination of (a) and (b) which will be sufficient, to pay when due the principal of and premium, if any, and interest, if any, due and to become due on such New Mortgage Bond or Bonds or portions thereof. (See Section 9.01.) For this purpose, Eligible Obligations include direct obligations of, or obligations unconditionally guaranteed by, the United States of America, entitled to the benefit of the full faith and credit thereof, and certificates, depositary receipts or other instruments which evidence a direct ownership interest in such obligations or in any specific interest or principal payments due in respect thereof. RESIGNATION AND REMOVAL OF THE NEW MORTGAGE TRUSTEE The New Mortgage Trustee may resign at any time by giving written notice thereof to the Company or may be removed at any time by Act of the Holders of a majority in principal amount of New Mortgage Bonds then Outstanding delivered to the New Mortgage Trustee and the Company. No resignation or removal of the New Mortgage Trustee and no appointment of a successor trustee will become effective until the acceptance of appointment by a successor trustee in accordance with the requirements of the New Mortgage. So long as no Event of Default or event which, after notice or lapse of time, or both, would become an Event of Default has occurred and is continuing, if the Company has delivered to the New Mortgage Trustee a resolution of its Board of Directors appointing a successor trustee and such successor has accepted such appointment in accordance with the terms of the New Mortgage, the New Mortgage Trustee will be deemed to have resigned and the successor will be deemed to have been appointed as trustee in accordance with the New Mortgage. (See Section 11.10.) CONCERNING THE NEW MORTGAGE TRUSTEE Harris Trust and Savings Bank, the Trustee under the New Mortgage, has been a regular depositary of funds of the Company. From time to time the Company borrows funds on a short-term basis from Harris Trust and Savings Bank. As trustee under both the New Mortgage and the First Mortgage, Harris Trust and Savings Bank would have a conflicting interest for purposes of the Trust Indenture Act if an Event of Default were to occur under either mortgage. In that case, the New Mortgage Trustee may be required to eliminate such conflicting interest by resigning either as New Mortgage Trustee or as First Mortgage Trustee. There are other instances under the Trust Indenture Act which would require the resignation of the New Mortgage Trustee if an Event of Default were to occur, such as an affiliate of the New Mortgage Trustee acting as underwriter with respect to any of the New Mortgage Bonds. TRANSFER The transfer of New Mortgage Bonds may be registered, and New Mortgage Bonds may be exchanged for other New Mortgage Bonds of the same series and Tranche, of authorized denominations and of like tenor and aggregate principal amount, at the office of Harris Trust and Savings Bank, of Chicago, Illinois, as Bond Registrar for the New Mortgage Bonds. The Company may change the place for registration of transfer of the New Mortgage Bonds, may appoint one or more additional Bond Registrars (including the Company) and may remove any Bond Registrar, all at its discretion. (See Section 6.02.) The applicable Prospectus Supplement, or a supplement thereto, will identify any new place for registration of transfer and any additional 17 19 Bond Registrar appointed, and will disclose the removal of any Bond Registrar effected, prior to the date of such Prospectus Supplement, or supplement thereto. Except as otherwise provided in the applicable Prospectus Supplement, no service charge will be made for any transfer or exchange of the New Mortgage Bonds, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of the New Mortgage Bonds. The Company will not be required to issue and no Bond Registrar will be required to register the transfer of or to exchange (a) New Mortgage Bonds of any series (including the New Mortgage Bonds) during a period of 15 days prior to giving any notice of redemption or (b) any New Mortgage Bond selected for redemption in whole or in part, except the unredeemed portion of any New Mortgage Bond being redeemed in part. (See Section 3.05.) DESCRIPTION OF FIRST MORTGAGE BONDS General. The following statements are brief summaries of certain provisions of the First Mortgage and supplemental indentures, which are filed as exhibits to the Registration Statement, and do not purport to be complete. They make use of defined terms (including those appearing herein in italics) and are qualified in their entirety by the references to provisions of the First Mortgage and supplemental indentures, which provisions are incorporated in these summaries by such references. The parenthetical references in this "-- Description of First Mortgage Bonds" are to the Articles in Roman numerals and Sections in Arabic numerals of the First Mortgage ("M"). Security. The First Mortgage Bonds will be secured, equally and ratably (except as to any sinking or similar fund established for a particular series of bonds) with all other bonds issued under the First Mortgage, by a valid first mortgage lien on substantially all of the fixed property, franchises and rights of the Company, subject to certain exceptions. Limitations and Restrictions on Dividends. Certain supplemental indentures to the First Mortgage dated on or after July 1, 1949 contain covenants restricting the payment of dividends. None of the approximately $57 million of retained earnings of the Company at September 30, 1998 were restricted by these covenants. Sinking and Property Fund; Other Sinking Funds. Certain supplemental indentures to the First Mortgage dated on or after July 1, 1949 provide for annual cash deposits for Sinking and Property Funds for the bonds outstanding thereunder, respectively, in each case beginning with the eleventh year after the date of issuance, the overall effect of which is that the annual aggregate requirements under all of such Sinking and Property Funds shall not exceed 1% of the total First Mortgage Bonds of the various then outstanding series theretofore issued. Maintenance and Renewal Fund. Certain supplemental indentures to the First Mortgage dated on or after July 1, 1949 require the Company to deposit in cash with the First Mortgage Trustee each year the amount of $2,000,000 plus 2 1/4% of net property additions from January 1, 1946, which amount may be reduced in any year by the principal amount of bonds of any series surrendered to the First Mortgage Trustee for cancellation, or by application of the lesser of cost or fair value of gross property additions not subject to an unfunded prior lien acquired during the preceding calendar year. Issuance of Additional First Mortgage Bonds. Additional bonds of any series may be issued under the First Mortgage in a principal amount equal to (1) 75% of the net bondable value of property additions not subject to an unfunded prior lien; (2) the principal amount of bonds retired other than out of trust estate moneys; and (3) the amount of cash deposited with the First Mortgage Trustee for such purpose (which may thereafter be withdrawn upon the same basis that additional bonds are issuable under (1) and (2) above) but in each case only if net earnings available for interest and property retirement appropriations for 12 consecutive months within the 18 months immediately preceding the month in which application for such additional bonds is made, shall have been equal to at least two times annual interest charges on all bonds which will be outstanding under the First Mortgage immediately after the issue of the additional bonds applied for and all prior lien bonds, if any, except that no net earnings requirements are applicable (i) to the withdrawal of cash so deposited, or (ii) to the issuance of additional bonds to refund bonds of any series at or within two years of 18 20 their maturity if all or substantially all of such additional bonds or their proceeds of sale will be applied to such refunding or to the payment of moneys borrowed for such purpose. (M III 3, 4, 5 and 6 and VIII 3) Defaults. Defaults are defined to include: - the failure to pay interest on any bond within 45 days after the same becomes due; - the failure to pay the principal of or premium, if any, on any bond within three business days after its maturity; - the failure to make any payment to any sinking, maintenance or analogous fund within 60 days after the same becomes due; - a breach of the terms of the covenant relating to dividends, or failure for 60 days after notice to perform any other covenant, agreement or condition contained in the First Mortgage or any supplemental indenture or in the bonds; - certain events of bankruptcy, receivership and similar proceedings; and - the occurrence of an Event of Default under the New Mortgage or a Matured Event of Default under any Prior Mortgage; provided that the waiver or cure of any such Event of Default or Matured Event of Default shall constitute a waiver of the default and the rescission and annulment of the consequences thereof. (M IX 1) Each bondholder has the absolute and unconditional right to enforce the payment of principal of and interest on his bonds at or after the maturity thereof. (M IX 12) The holders of 25% or more of the outstanding bonds, or the First Mortgage Trustee, may declare the principal of all outstanding bonds due upon the happening of any of the events of default, but holders of a majority of the outstanding bonds may waive any such default and rescind any such declaration, whether made by the First Mortgage Trustee or holders of 25% or more of the outstanding bonds, if all defaults (other than payment of principal due on account of such declaration) have been made good or secured to the satisfaction of the First Mortgage Trustee or provision deemed by the First Mortgage Trustee to be adequate shall be made therefor. Any waiver does not affect any subsequent default. (M IX 1) The holders of a majority of the outstanding bonds may, upon the happening of any of the events of default, direct the First Mortgage Trustee to enforce payment of the bonds and the lien of the First Mortgage. (M IX 4) The First Mortgage Trustee is under no obligation to exercise any of its trusts or powers at the request of the bondholders unless such bondholders have offered adequate indemnity against costs, expenses and liabilities to be incurred thereby. (M XIII 1) Within 90 days after the close of each fiscal year, the Company is required to furnish to the First Mortgage Trustee an officer's certificate as to the absence of default and as to compliance with the terms of the First Mortgage. (M IV 8) Concerning the First Mortgage Trustee. Harris Trust and Savings Bank, the Trustee under the First Mortgage, has been a regular depositary of funds of the Company. From time to time the Company borrows funds on a short-term basis from Harris Trust and Savings Bank. As trustee under both the New Mortgage and the First Mortgage, Harris Trust and Savings Bank would have a conflicting interest under the Trust Indenture Act if an Event of Default were to occur under either mortgage. In that case, the First Mortgage Trustee may be required to eliminate such conflicting interest by resigning either as First Mortgage Trustee or as New Mortgage Trustee. There are other instances under the Trust Indenture Act which would require the resignation of the First Mortgage Trustee if an Event of Default were to occur, such as an affiliate of the First Mortgage Trustee acting as underwriter with respect to any First Mortgage Bonds. Modification. The First Mortgage may be modified with the consent of the holders of at least 66 2/3% in amount of the bonds outstanding under the First Mortgage, and at least 66 2/3% in amount of each series affected, if less than all series are affected, except that no modification is permitted which will affect the terms of payment of the principal of, or premium, if any, or interest on, any bond issued under the First Mortgage. 19 21 (M XV 6) As described more fully in "Description of New Mortgage Bonds," First Mortgage Bonds may be issued to the New Mortgage Trustee as security for New Mortgage Bonds. DESCRIPTION OF THE UNSECURED DEBT SECURITIES The following description applies to any offering of Securities by the Company consisting of unsecured debentures, notes or other evidences of indebtedness (the "Unsecured Debt Securities"). GENERAL The Unsecured Debt Securities are to be issued under an Indenture dated as of July 15, 1986 (the "Indenture"), between the Company and The Chase Manhattan Bank (the successor to Chemical Bank), as Trustee, as supplemented by one or more Supplemental Indentures relating to the Unsecured Debt Securities. A copy of the Indenture has been filed as an exhibit to the Registration Statement under which the Securities are registered. The following summary does not purport to be complete, and where particular provisions of the Indenture are referred to, such provisions, including definitions of certain terms, are incorporated by reference as a part of such summary, which is qualified in its entirety by such reference. The Indenture does not limit the amount of Unsecured Debt Securities which can be issued thereunder and provides that Unsecured Debt Securities may be issued thereunder in one or more series up to the aggregate principal amount which may be authorized from time to time by the Company. Reference is made to the Prospectus Supplement for a description of the following terms of each series of Unsecured Debt Securities in respect of which this Prospectus is being delivered: - the title of such Unsecured Debt Securities; - the limit, if any, upon the aggregate principal amount of such Unsecured Debt Securities; - the date or dates on which the principal of such Unsecured Debt Securities is payable; - the rate or rates at which such Unsecured Debt Securities will bear interest, if any, the date or dates from which such interest will accrue, the dates on which such interest will be payable, and the regular record dates for the interest payable on such interest payment dates; - the option, if any, of the Company to redeem such Unsecured Debt Securities and the periods within which or the dates on which, the prices at which and the terms and conditions upon which, such Unsecured Debt Securities may be redeemed, in whole or in part, upon the exercise of such option; - the obligation, if any, of the Company to redeem or purchase such Unsecured Debt Securities pursuant to any sinking fund or analogous provisions or at the option of the holder and the periods within which or the dates on which, the prices at which and the terms and conditions upon which such Unsecured Debt Securities will be redeemed or purchased, in whole or in part, pursuant to such obligation; - the denominations in which such Unsecured Debt Securities will be issuable; - whether such Unsecured Debt Securities are to be issued in whole or in part in the form of one or more global Unsecured Debt Securities and, if so, the identity of the depositary for such global Unsecured Debt Securities; and - any other terms of such Unsecured Debt Securities not inconsistent with the provisions of the Indenture. The Amended and Restated Articles of Incorporation of the Company limit the amount of unsecured indebtedness that the Company may issue or assume, without the consent of the holders of a majority of the total number of shares of Preferred Stock then outstanding, to 20% of the aggregate of the total principal amount of all outstanding First Mortgage Bonds or other securities representing secured indebtedness of the Company and the capital and surplus of the Company as then stated on the Company's books. 20 22 Except as may otherwise be set forth in the Prospectus Supplement, the Company has designated the office of the Trustee in the Borough of Manhattan, the City of New York (currently 450 West 33rd Street, 15th Floor, New York, New York 10001-2697) as the place at which principal of and the premium, if any, and the interest on the Unsecured Debt Securities will be payable and at which Unsecured Debt Securities may be presented for registration of transfer and for exchange for a like series of Unsecured Debt Securities of different denominations, provided that payment of any interest may be made at the option of the Company by check mailed to the registered holders of the Unsecured Debt Securities at their registered addresses. (See Sections 2.01, 2.03 and 4.03) The Unsecured Debt Securities will be issued only in fully registered certificated or book-entry form without coupons. The Company may charge a reasonable fee for any transfer or exchange of the Unsecured Debt Securities, with certain exceptions. (See Section 2.06) The Unsecured Debt Securities will be unsecured and will rank pari passu with all other unsecured and unsubordinated indebtedness of the Company. The Indenture does not restrict the amount of additional unsecured debt which the Company may incur. RESTRICTIONS ON CONSOLIDATION, MERGER OR TRANSFER OF ASSETS The Company may not consolidate with or merge into another corporation, or convey, transfer or lease its properties and assets substantially as an entirety to another entity, unless the corporation formed by or surviving such consolidation or merger (if other than the Company), or the entity which acquires or leases such properties and assets, is a corporation organized under the laws of the United States of America, any State thereof or the District of Columbia and shall assume payment of the Unsecured Debt Securities and the performance of all of the other covenants of the Company under the Indenture, and immediately after giving effect to such transaction no default under the Indenture shall have happened and be continuing. (See Section 5.01) Unless otherwise indicated in the applicable Prospectus Supplement, the Indenture does not contain covenants specifically designed to protect holders of Unsecured Debt Securities in the event of a highly leveraged transaction. MODIFICATION OF THE INDENTURE Certain modifications and amendments of the Indenture may be made by the Company and the Trustee only with the consent of the holders of a majority in aggregate principal amount of the outstanding Unsecured Debt Securities of each series issued under the Indenture which is affected by the modification or amendment, provided that no such modification or amendment may, without the consent of the holder of each Unsecured Debt Security affected thereby: - change the stated maturity date of the principal of, or any installment of interest on, any such Unsecured Debt Security; - reduce the principal amount of, or interest (or premium, if any) on, any such Unsecured Debt Security; - change the currency of payment of principal of, or interest (or premium, if any) on, any such Unsecured Debt Security; - impair the right to institute suit for the enforcement of any payment of the principal of, and premium, if any, and interest on any such Unsecured Debt Security or adversely affect the right of repayment, if any, at the option of the holder; or - reduce the percentage of holders of each affected series of Unsecured Debt Securities necessary to modify or amend the Indenture or waive defaults with respect to the series. (See Section 9.02) 21 23 EVENTS OF DEFAULT The Indenture defines an Event of Default with respect to any series of Unsecured Debt Securities as being any one of the following events and such other event as may be established for the Unsecured Debt Securities of a particular series: - default for 30 days in the payment of any interest on such series; - default for 3 business days in any payment of principal, and premium, if any, on such series when due; - default for 60 days, after appropriate notice, in performance of any other agreement in the Indenture with respect to such series or in the Unsecured Debt Securities of such series; or - certain events in bankruptcy, insolvency or reorganization. No Event of Default with respect to a particular series of Unsecured Debt Securities issued under the Indenture (other than under the immediately preceding bullet point) necessarily constitutes an Event of Default with respect to any other series of Unsecured Debt Securities issued thereunder. In case an Event of Default shall occur and be continuing with respect to any series of Unsecured Debt Securities, the Trustee or the holders of not less than 33% in aggregate principal amount of the Unsecured Debt Securities then outstanding of the series may declare the principal of such series (or such portion of the principal as may be specified as due upon acceleration at that time in the terms of that series) to be due and payable. Any Event of Default with respect to a particular series of Unsecured Debt Securities may be waived by the holders of a majority in aggregate principal amount of the outstanding Unsecured Debt Securities of such series, except in each case a failure to pay principal or premium, if any, or any interest on such Unsecured Debt Security. (See Sections 6.01, 6.02 and 6.04) The Indenture requires the Company to file annually with the Trustee a statement signed by two officers of the Company as to the absence of defaults under the terms of the Indenture. The Indenture provides that the Trustee may withhold notice to the holders of the Unsecured Debt Securities of any default (except in payment of principal or premium, if any, or interest) if it considers it in the interest of the holders of the Unsecured Debt Securities to do so. (See Sections 4.04 and 7.05) Subject to the provisions of the Indenture relating to the duties of the Trustee in case an Event of Default shall occur and be continuing, the Indenture provides that the Trustee shall be under no obligation to exercise any of its rights or powers under the Indenture at the request, order or direction of the holders of the Unsecured Debt Securities unless such holders shall have offered to the Trustee satisfactory indemnity. Subject to such provisions for indemnification and certain other rights of the Trustee, the Indenture provides that the holders of a majority in principal amount of the outstanding Unsecured Debt Securities of any series affected shall have the right to direct the time, method and place of conducting any proceeding for any remedy for that series which is available to the Trustee or exercising any trust or power conferred on the Trustee for the benefit of such series. (See Sections 6.05 and 7.01) DEFEASANCE The Indenture provides that the Company may terminate its obligations under the Indenture if (i) all the Unsecured Debt Securities either mature within one year or are called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption and (ii) the Company irrevocably deposits in trust with the Trustee money or U.S. Governmental Obligations (as described below) sufficient to pay principal and interest on the Unsecured Debt Securities to maturity or redemption, as the case may be. (See Section 8.01) For this purpose, U.S. Government Obligations means obligations issued or guaranteed by the United States of America the payment of which the full faith and credit of the United States of America is pledged. 22 24 REGARDING THE TRUSTEE Harris Trust and Savings Bank is the Trustee under the Indenture. Harris Trust and Savings Bank makes loans to the Company in the normal course of its business. PLAN OF DISTRIBUTION We may sell the Securities in the following ways: - through dealers; - through underwriters; - through agents; - directly to purchasers; or - through any combination of the above. The Prospectus Supplement will set forth the specific terms of the series of Securities being offered (the "Offered Securities"), including: - the name or names of any underwriters, - the price to the public of the Offered Securities and the proceeds to the Company from such sale, - any underwriting discounts and other items constituting underwriters' compensation, - any initial public offering price, and - any discounts or concessions allowed or reallowed or paid to dealers. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. If we use underwriters in the sale, the underwriters will acquire the Securities for their own account and may resell the Securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. We may offer the Securities to you either through underwriting syndicates represented by one or more managing underwriters or directly by one or more underwriters. We will name the underwriter or underwriters with respect to a particular underwritten offering of Offered Securities in the Prospectus Supplement relating to such offering and, if an underwriting syndicate is used, we will also name the managing underwriter or underwriters on the cover page of such Prospectus Supplement. Unless otherwise set forth in the Prospectus Supplement, the obligations of the underwriters to purchase the Offered Securities will be subject to certain conditions precedent, the underwriters will be obligated to purchase all the Offered Securities if any are purchased, and we will have agreed to indemnify the underwriters against certain civil liabilities, including liabilities under the Securities Act. If we sell the Securities directly or through agents designated by us from time to time, any agent involved in the offer or sale of the Offered Securities in respect of which this Prospectus is delivered will be named, and any commissions payable by us to such agent will be set forth, in the Prospectus Supplement relating thereto. Unless otherwise indicated in the Prospectus Supplement, any such agent will be acting on a reasonable best efforts basis for the period of its appointment. LEGAL OPINIONS Certain legal matters in connection with the Securities will be passed upon for the Company by Schiff Hardin & Waite, Chicago, Illinois and for any underwriters, dealers or agents by counsel named in the applicable Prospectus Supplement. 23 25 EXPERTS The financial statements incorporated in this Prospectus by reference to Illinois Power Company's Annual Report on Form 10-K for the year ended December 31, 1997, have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. 24 26 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth all expenses in connection with the distribution of the Securities being registered. All amounts shown below are estimates, except the registration fee: Registration fee of Securities and Exchange Commission...... $ 69,500 Accountants' fees and expenses.............................. 25,000 Legal fees and expenses..................................... 80,000 Rating agency fees.......................................... 70,000 Trustee fees and expenses (including legal fees)............ 60,000 Printing fees............................................... 30,000 Miscellaneous expenses...................................... 5,500 -------- Total............................................. $340,000 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under Section 8.75 of the Illinois Business Corporation Act of 1983, the Company is empowered, subject to the procedures and limitations stated therein, to indemnify any person against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending or completed action, suit or proceeding to which such person is made a party or threatened to be made a party by reason of his being or having been a director, officer, employee or agent of the Company, or serving or having served at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. Section 8.75 further provides that indemnification pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise, and that such indemnification shall continue as to a director, officer, employee or agent of the Company who has ceased to serve in such capacity, and shall inure to the benefit of the heirs, executors and administrators of such a person. The By-Laws of the Company provide, in substance, that the Company shall indemnify any person against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, to which such person is made a party or threatened to be made a party by reason of his being or having been a director, officer, employee or agent of the Company, or serving or having served at the request of the Company in one or more of the foregoing capacities with another corporation, partnership, joint venture, trust or other enterprise. The indemnification is not exclusive of other rights and shall continue as to a person who has ceased to be a director, officer, employer or agent and shall inure to the benefit of his heirs, executors and administrators. The Company presently has an insurance policy which, among other things, includes liability insurance coverage for officers and directors under which officers and directors are covered against any "loss" arising from any claim or claims made against them by reason of any "wrongful act" in their respective capacities of directors or officers. "Loss" is specifically defined to exclude fines and penalties as well as matters deemed uninsurable under the law pursuant to which the insurance policy shall be construed. The policy also contains other specific exclusions, including illegally obtained personal profit or advantages, and dishonesty. The policy also provides for reimbursement to the Company, subject to certain deductibles, for loss incurred by having indemnified officers or directors as authorized by state statute, the Company's By-laws or any other agreement. II-1 27 ITEM 16. LIST OF EXHIBITS. The Exhibits to this Registration Statement are listed in the Exhibit Index located elsewhere herein. ITEM 17. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: 1. To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the Prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement. 2. That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and 3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the statutory and bylaw provisions referred to in Item 15, or otherwise, the Registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the II-2 28 Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. (d) The undersigned Registrant hereby undertakes that: 1. For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this Registration Statement as of the time it was declared effective; and 2. For purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-3 29 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF DECATUR, AND STATE OF ILLINOIS ON THE 22ND DAY OF JANUARY, 1999. ILLINOIS POWER COMPANY (REGISTRANT) BY: /S/ LARRY F. ALTENBAUMER ---------------------------------- LARRY F. ALTENBAUMER SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER II-4 30 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that Illinois Power Company and each of the undersigned officers and directors of Illinois Power Company hereby constitute and appoint each of Charles E. Bayless, Larry F. Altenbaumer and Leah Manning Stetzner the true and lawful attorney-in-fact and agent of the undersigned, with full power of substitution and resubstitution for and in the name, place and stead of the undersigned, in any and all capacities, to sign all or any amendments (including post-effective amendments) of and supplements to this Registration Statement on Form S-3 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, to all intents and purposes and as fully as said corporation itself and each said officer or director might or could do in person, hereby ratifying and confirming all that each such attorney-in-fact and agent, or his or her substitutes, may lawfully do or cause to be done by virtue hereof. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE --------- ----- ---- /s/ CHARLES E. BAYLESS Chairman, President, Chief January 22, 1999 - ----------------------------------------------------- Executive Officer and Charles E. Bayless Director (Principal Executive Officer) /s/ LARRY F. ALTENBAUMER Senior Vice President and January 22, 1999 - ----------------------------------------------------- Chief Financial Officer Larry F. Altenbaumer (Principal Financial and Accounting Officer) Director - ----------------------------------------------------- J. Joe Adorjan /s/ C. STEVEN MCMILLAN Director January 22, 1999 - ----------------------------------------------------- C. Steven McMillan /s/ ROBERT M. POWERS Director January 22, 1999 - ----------------------------------------------------- Robert M. Powers /s/ SHELI Z. ROSENBERG Director January 22, 1999 - ----------------------------------------------------- Sheli Z. Rosenberg /s/ WALTER D. SCOTT Director January 22, 1999 - ----------------------------------------------------- Walter D. Scott /s/ JOE J. STEWART Director January 22, 1999 - ----------------------------------------------------- Joe J. Stewart
II-5 31
SIGNATURE TITLE DATE --------- ----- ---- /s/ RONALD L. THOMPSON Director January 22, 1999 - ----------------------------------------------------- Ronald L. Thompson /s/ WALTER M. VANNOY Director January 22, 1999 - ----------------------------------------------------- Walter M. Vannoy Director - ----------------------------------------------------- Marilou von Ferstel /s/ JOHN D. ZEGLIS Director January 22, 1999 - ----------------------------------------------------- John D. Zeglis
II-6 32 EXHIBIT INDEX
EXHIBIT DESCRIPTION ------- ----------- 1.1 Form of Underwriting Agreement for New Mortgage Bonds. 1.2 Form of Underwriting Agreement for Unsecured Debt Securities. 3.1 Amended and Restated Articles of Incorporation of the Company. Filed as Exhibit 3(a) to the Current Report on Form 8-K dated September 7, 1994 (File No. 1-3004).+ 3.2 By-laws of the Company. Filed as Exhibit 3(b)(1) to the Annual Report on Form 10-K for the year ended December 31, 1994 (File No. 1-3004).+ 4.1 Mortgage and Deed of Trust dated November 1, 1943. Filed as Exhibit 2(b) Registration No. 2-14066.+ 4.2 Supplemental Indenture dated July 1, 1949. Filed as Exhibit 7(a) Registration No. 2-8130.+ 4.3 Supplemental Indenture dated May 1, 1974. Filed as Exhibit 2(v) Registration No. 2-51674.+ 4.4 Supplemental Indenture dated May 1, 1977. Filed as Exhibit 2(w) Registration No. 2-59465.+ 4.5 Supplemental Indenture dated July 1, 1979. Filed as Exhibit 2 to the Quarterly Report on Form 10-Q for the Quarter Ended June 30, 1979. (File No. 1-3004).+ 4.6 Supplemental Indenture dated March 1, 1985. Filed as Exhibit 4(a) to the Quarterly Report on Form 10-Q for the Quarter Ended March 31, 1985. (File No. 1-3004).+ 4.7 Indenture dated as of July 15, 1986. Filed as Exhibit 4(b) to the Current Report on Form 8-K dated June 25, 1986. (File No. 1-3004).+ 4.8 Supplemental Indenture dated July 1, 1987. Filed as Exhibit 4(ll) to the Annual Report on Form 10-K for the Year Ended December 31, 1987. (File No. 1-3004).+ 4.9 Supplemental Indenture dated December 13, 1989, to Indenture dated as of July 15, 1996. Filed as Exhibit 4(nn) to the Annual Report on Form 10-K for the Year Ended December 31, 1989. (File No. 1-3004).+ 4.10 Supplemental Indenture dated July 1, 1991. Filed as Exhibit 4(mm) to the Annual Report on Form 10-K for the Year Ended December 31, 1991. (File No. 1-3004).+ 4.11 Supplemental Indenture No. 1 dated June 1, 1992. Filed as Exhibit 4(nn) to the Quarterly Report on Form 10-Q for the Quarter Ended June 30, 1992. (File No. 1-3004).+ 4.12 Supplemental Indenture No. 2 dated June 1, 1992. Filed as Exhibit 4(oo) to the Quarterly Report on Form 10-Q for the Quarter Ended June 30, 1992. (File No. 1-3004).+ 4.13 Supplemental Indenture No. 1 dated July 1, 1992. Filed as Exhibit 4(pp) to the Quarterly Report on Form 10-Q for the Quarter Ended June 30, 1992. (File No. 1-3004).+ 4.14 Supplemental Indenture No. 2 dated July 1, 1992. Filed as Exhibit 4(qq) to the Quarterly Report on Form 10-Q for the Quarter Ended June 30, 1992. (File No. 1-3004).+ 4.15 Supplemental Indenture dated September 1, 1992. Filed as Exhibit 4(rr) to the Quarterly Report on Form 10-Q for the Quarter Ended September 30, 1992. (File No. 1-3004).+
33
EXHIBIT DESCRIPTION ------- ----------- 4.16 General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. Filed as Exhibit 4(cc) to the Annual Report on Form 10-K for the Year Ended December 31, 1992. (File No. 1-3004).+ 4.17 Supplemental Indenture dated February 15, 1993, to Mortgage and Deed of Trust dated November 1, 1943. Filed as Exhibit 4(dd) to the Annual Report on Form 10-K for the Year Ended December 31, 1992. (File No. 1-3004).+ 4.18 Supplemental Indenture dated February 15, 1993, to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. Filed as Exhibit 4(ee) to the Annual Report on Form 10-K for the Year Ended December 31, 1992. (File No. 1-3004).+ 4.19 Supplemental Indenture No. 1 dated March 15, 1993, to Mortgage and Deed of Trust dated November 1, 1943. Filed as Exhibit 4(ff) to the Annual Report on Form 10-K for the Year Ended December 31, 1992. (File No. 1-3004).+ 4.20 Supplemental Indenture No. 1 dated March 15, 1993, to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. Filed as Exhibit 4(gg) to the Annual Report on Form 10-K for the Year Ended December 31, 1992. (File No. 1-3004).+ 4.21 Supplemental Indenture No. 2 dated March 15, 1993, to Mortgage and Deed of Trust dated November 1, 1943. Filed as Exhibit 4(hh) to the Annual Report on Form 10-K for the Year Ended December 31, 1992. (File No. 1-3004).+ 4.22 Supplemental Indenture No. 2 dated March 15, 1993, General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. Filed as Exhibit 4(ii) to the Annual Report on Form 10-K for the Year Ended December 31, 1992. (File No. 1-3004).+ 4.23 Supplemental Indenture dated July 15, 1993 to Mortgage and Deed of Trust dated November 1, 1943. Filed as Exhibit 4(jj) to the Quarterly Report on Form 10-Q for the Quarter Ended June 30, 1993. (File No. 1-3004).+ 4.24 Supplemental Indenture dated July 15, 1993 to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. Filed as Exhibit 4(kk) to the Quarterly Report on Form 10-Q for the Quarter Ended June 30, 1993. (File No. 1-3004).+ 4.25 Supplemental Indenture dated August 1, 1993 to Mortgage and Deed of Trust dated November 1, 1943. Filed as Exhibit 4(11) to the Quarterly Report on Form 10-Q for the Quarter Ended June 30, 1993. (File No. 1-3004).+ 4.26 Supplemental Indenture dated August 1, 1993 to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. Filed as Exhibit 4(mm) to the Quarterly Report on Form 10-Q for the Quarter Ended June 30, 1993. (File No. 1-3004).+ 4.27 Supplemental Indenture dated October 15, 1993, to Mortgage and Deed of Trust dated November 1, 1943. Filed as Exhibit 4(nn) to the Quarterly Report on Form 10-Q for the Quarter ended September 30, 1993. (File No. 1-3004).+ 4.28 Supplemental Indenture dated October 15, 1993, to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. Filed as Exhibit 4(oo) to the Quarterly Report on Form 10-Q for the Quarter ended September 30, 1993. (File No. 1-3004).+ 4.29 Supplemental Indenture dated November 1, 1993, to Mortgage and Deed of Trust dated November 1, 1943. Filed as Exhibit 4(pp) to the Quarterly Report on Form 10-Q for the Quarter ended September 30, 1993. (File No. 1-3004).+ 4.30 Supplemental Indenture dated November 1, 1993, to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. Filed as Exhibit 4(qq) to the Quarterly Report on Form 10-Q for the Quarter ended September 30, 1993. (File No. 1-3004).+ 4.31 Supplemental Indenture dated February 1, 1994, to Mortgage and Deed of Trust dated November 1, 1943. Filed as Exhibit 4(hh) to the Annual Report on Form 10-K for the Year ended December 31, 1993. (File No. 1-3004).+
34
EXHIBIT DESCRIPTION ------- ----------- 4.32 Indenture dated as of October 1, 1994 between Illinois Power Company and The First National Bank of Chicago. Filed as Exhibit 4(a) to the Quarterly Report on Form 10-Q for the Quarter ended September 30, 1994. (File No. 1-3004).+ 4.33 First Supplemental Indenture dated as of October 1, 1994, to Indenture dated as of October 1, 1994. Filed as Exhibit 4(b) to the Quarterly Report on Form 10-Q for the Quarter ended September 30, 1994. (File No. 1-3004).+ 4.34 Indenture dated as of January 1, 1996 between Illinois Power Company and Wilmington Trust Company. Filed as Exhibit 4(b)(36) to the Annual Report on Form 10-K for the Year ended December 31, 1995. (File No. 1-3004).+ 4.35 First Supplemental Indenture dated as of January 1, 1996, to Indenture dated January 1, 1996. Filed as Exhibit 4(b)(37) to the Annual Report on Form 10-K for the Year ended December 31, 1995. (File No. 1-3004).+ 4.36 Supplemental Indenture dated April 1, 1997, to Mortgage and Deed of Trust dated November 1, 1943. Filed as Exhibit 4(a) to the Quarterly Report on Form 10-Q for the Quarter ended March 31, 1997. (File No. 1-3004).+ 4.37 Supplemental Indenture dated April 1, 1997 to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. Filed as Exhibit 4(b) to the Quarterly Report on Form 10-Q for the Quarter ended March 31, 1997. (File No. 1-3004).+ 4.38 Supplemental Indenture dated December 1, 1997 to Mortgage and Deed of Trust dated November 1, 1943. Filed as Exhibit 4(b)(36) to the Annual Report on Form 10-K for the Year Ended December 31, 1997. (File No. 1-3004).+ 4.39 Supplemental Indenture No. 1 dated as of March 1, 1998 to Mortgage and Deed of Trust dated November 1, 1943. 4.40 Supplemental Indenture No. 2 dated as of March 1, 1998 to Mortgage and Deed of Trust dated November 1, 1943. 4.41 Supplemental Indenture No. 1 dated as of March 1, 1998 to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. 4.42 Supplemental Indenture No. 2 dated as of March 1, 1998 to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. 4.43 Supplemental Indenture dated as of July 15, 1998 to Mortgage and Deed of Trust dated November 1, 1943. 4.44 Supplemental Indenture dated as of July 15, 1998 to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. 4.45 Supplemental Indenture dated as of September 15, 1998 to Mortgage and Deed of Trust dated November 1, 1943. 4.46 Supplemental Indenture dated as of September 15, 1998 to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. 4.47 Supplemental Indenture dated as of October 1, 1998 to General Mortgage Indenture and Deed of Trust dated as of November 1, 1992. 4.48 Form of Supplemental Indenture for New Mortgage Bonds. 4.49 Specimen New Mortgage Bond-included in Exhibit 4.48. 4.50 Form of Unsecured Note. 4.51 Form of Unsecured Debenture. 5 Opinion of Schiff Hardin & Waite. 12 Statement of Computation of Ratio of Earnings to Fixed Charges. 23.1 Consent of PricewaterhouseCoopers LLP.
35
EXHIBIT DESCRIPTION ------- ----------- 23.2 Consent of Schiff Hardin & Waite (contained in its opinion filed as Exhibit 5 to the Registration Statement). 25 Powers of Attorney (set forth on the signature pages of the Registration Statement). 26.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank with respect to New Mortgage Bonds. 26.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Chase Manhattan Bank with respect to Unsecured Debt Securities.
- --------------- + Incorporated herein by reference. EX-1.1 2 UNDERWRITING AGREEMENT FOR NEW MORTGAGE BOND 1 EXHIBIT 1.1 ___________, ____ CHICAGO, ILLINOIS ILLINOIS POWER COMPANY NEW MORTGAGE BONDS UNDERWRITING AGREEMENT To the Representative(s) named in Schedule I hereto of the Underwriters named in Schedule II hereto. Ladies and Gentlemen: Illinois Power Company, an Illinois corporation (the "Company"), proposes to issue and sell from time to time, in one or more series, its New Mortgage Bonds which are registered under the registration statement referred to in Section 1(a) ("Bonds"). The Bonds will be issued under the Company's General Mortgage and Deed of Trust, dated as of November 1, 1992 (the "General Mortgage"), and supplemental indentures thereto, including a supplemental indenture (the "Supplemental Indenture") specifically relating to the Purchased Bonds (as defined below), between the Company and the Harris Trust and Savings Bank, as trustee (the "New Mortgage Trustee") (the General Mortgage and all supplemental indentures thereto are collectively referred to as the "New Mortgage"). The Bonds will be secured primarily by a bond issued to the New Mortgage Trustee under the Company's Mortgage and Deed of Trust dated November 1, 1943 from the Company to Harris Trust and Savings Bank, as trustee (the "First Mortgage Trustee") as amended and supplemented by various supplemental indentures (the "First Mortgage"), including a supplemental indenture (the "First Mortgage Supplemental Indenture") specifically relating to the bond (the "First Mortgage Bond") securing the Purchase Bonds (as hereinafter deferred). The Company proposes to sell to the underwriters named in Schedule II hereto (the "Underwriters") for whom you are acting as Representative or Representatives (the "Representatives"), Bonds in the aggregate principal amount and of the series identified in Schedule I hereto (the "Purchased Bonds"). 1. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with the Underwriters that: (a) A registration statement on Form S-3 (No. 333- ) relating to the Bonds has been filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act") and has become effective. Such registration statement, including the prospectus contained therein, as amended and supplemented to the date of this Agreement (exclusive of supplements to the prospectus relating solely to Bonds that are not the Purchased Bonds) and as supplemented by the 2 prospectus supplement to be included as part of the prospectus to be filed with the Commission pursuant to Rule 424(b) under the Act, as provided in Section 3(a) hereof, are collectively referred to as the "Registration Statement" and such prospectus is collectively referred to as the "Prospectus." Any reference herein to the Registration Statement or the Prospectus shall be deemed to include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement; and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated therein by reference after the date of this Agreement. (b) The Registration Statement and the Prospectus, both at the time the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act as provided in Section 3(a) hereof, and any further amendments and supplements to the Prospectus when they become effective or are filed with the Commission, as the case may be, prior to the Closing Date (as defined below), will conform in all respects to the requirements of the Act, the Exchange Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the rules and regulations of the Commission (the "Rules and Regulations"), and none of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to statements or omissions in such documents based upon written information furnished to the Company by any Underwriter specifically for use therein or in reliance upon and in conformity with the Form T-1 of the New Mortgage Trustee. 2. Purchase, Offering and Delivery. Subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto, the principal amount of the Purchased Bonds set forth opposite such Underwriter's name in Schedule II hereto. It is understood that the Underwriters propose to offer the Purchased Bonds for sale to the public as set forth in the prospectus supplement relating to the Purchased Bonds. The Purchased Bonds to be purchased by each Underwriter shall be delivered by the Company for the account of such Underwriter to the place specified in Schedule I hereto against payment of the purchase price therefor by such Underwriter or on its behalf in the type of funds and method of payment specified in Schedule I hereto, drawn to the order of the Company, at the office of Harris Trust and Savings Bank, 111 West Monroe Street, Chicago, Illinois 60690, at the time and date specified in Schedule I hereto or at such other time and date as the Representatives and the Company may agree, such time and date being herein referred to as the "Closing Date." The Purchased Bonds so to be delivered will be in definitive fully registered form in such authorized denominations and registered in such names as the Representatives request at least two full business 2 3 days before the Closing Date and will be made available for checking and packaging in the City designated in Schedule I as the place of delivery at least 24 hours prior to the Closing Date. 3. Covenants of the Company. The Company covenants and agrees with the Underwriters that: (a) Promptly following execution of this Agreement, the Company will cause the Prospectus (including as part thereof a prospectus supplement relating to the Purchased Bonds (the "Prospectus Supplement")) to be filed with the Commission pursuant to Rule 424(b) under the Act and the Company will promptly advise the Representatives when such filing has been made. Prior to such filing, the Company will work with the Representatives in the preparation of the Prospectus Supplement to assure that the Representatives have no reasonable objection to the form or content thereof when filed. (b) If at any time when a prospectus relating to the Purchased Bond is required to be delivered under the Act any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement or Prospectus to comply with the Act or the Rules or Regulations, the Company promptly will prepare and file with the Commission an amendment or supplement which will correct such statement or omission, or an amendment which will effect such compliance. (c) The Company will furnish to each Underwriter such number of copies of the Prospectus as may be reasonably requested in connection with the offering of the Purchased Bonds. (d) The Company will pay all expenses incident to the performance of its obligations under this Agreement, and will reimburse the Underwriters for any expenses up to $__________ in the aggregate (including fees and disbursements of counsel) incurred in connection with qualification of the Purchased Bonds for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto. (e) The Company will not, for the period ending on the day immediately succeeding the Closing Date, without the prior written consent of the Underwriters, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any other debt securities of the Company. 4. Conditions to the Obligations of the Underwriters. The obligation of the several Underwriters to purchase and pay for the Purchased Bonds hereunder will be subject to the accuracy 3 4 of the representations and warranties on the part of the Company herein, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent: (a) Subsequent to the execution and delivery of this Agreement there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries which, in the judgment of a majority in interest of the Underwriters, including you, materially impairs the investment quality of the Purchased Bonds or (ii) any downgrading in the rating of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act). (b) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, or the Underwriters, shall be contemplated by the Commission. (c) The Underwriters shall have received the following: (i) A letter of Price Waterhouse, dated the Closing Date, confirming that they are independent accountants within the meaning of the Act and the Rules and Regulations, and stating in effect that (i) in their opinion, the financial statements examined by them and incorporated by reference in the Prospectus comply as to form in all material respects with the accounting requirements of the Act and the Rules and Regulations applicable to annual reports on Form 10-K (ii) on the basis of a reading of the interim financial statements referred to in Clause (A) below, a reading of the latest available interim financial statements of the Company, a reading of the minutes of the Board of Directors and stockholders of the Company as set forth in the minute books of the Company and inquiries of officials of the Company responsible for financial and accounting matters, nothing came to their attention that caused them to believe that (A) the unaudited financial statements included in the most recent Quarterly Report on Form 10-Q incorporated by reference in the Prospectus were not prepared on a basis substantially consistent with that of the audited financial statements as of and for the fiscal year ended December 31, 199__ incorporated by reference in the Prospectus, or (B) at the date of the latest available balance sheet read by such accountants or at a subsequent specified date not more than five days prior to the Closing Date, there was any change in the capital stock or long-term debt of the Company or, at the date of the latest available balance sheet read by such accountants, there was any decrease in net assets, in each case as compared with the corresponding amounts shown in the December 31, 199__ balance sheet incorporated by reference in the Prospectus, or (C) for the period of twelve months ended with the Closing Date or of the latest available income statement read by such accountants, there were any decreases, as compared with the twelve months ended December 31, 199__ in operating revenues, operating income, net income, earnings per share of common stock or the ratio of earnings to fixed charges, except in all cases set forth 4 5 in clauses (B) and (C) above for changes or decreases which the Prospectus discloses have occurred or may occur, or which are described in such letter, and (iii) they have compared the dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Prospectus under the captions "Use of Proceeds," "Ratio of Earnings to Fixed Charges," and "Description of First Mortgage Bonds" and contained in the Company's Annual Report on Form 10-K for the year ended December 31, 199__ and Quarterly Report on Form 10-Q for the quarter ended __________, ______ (which are incorporated by reference in the Prospectus) (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results except as otherwise specified in such letter. All financial statements included in material incorporated by reference in the Prospectus shall be deemed included in the Prospectus for purposes of this subsection. (ii) An opinion of Schiff Hardin & Waite, counsel for the Company, dated the Closing Date, to the effect that: (A) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Illinois, with corporate power and authority to own its properties and conduct its business as described in the Prospectus, and the Company is not required to be qualified as a foreign corporation in any jurisdiction. (B) The Purchased Bonds have been duly authorized, executed, authenticated, issued and delivered, and constitute the valid and binding obligations of the Company enforceable in accordance with their terms, except as the same may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors' rights, and (b) general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), and (subject to the qualifications mentioned in subparagraph C below with respect to the enforceability of the General Mortgage and to the provisions of any purchase or sinking fund or analogous provisions for any particular series of bonds established by any indenture supplemental to the General Mortgage) are entitled to the benefit and security of the General Mortgage in accordance with the terms thereof equally and ratably with all other bonds issued under the General Mortgage. 5 6 (C) The General Mortgage and the Supplemental Indenture have each been duly authorized, executed and delivered and are valid and binding instruments enforceable in accordance with their terms, except as the same may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors' rights or the enforcement of the security provided by the General Mortgage, and (b) general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that no opinion is expressed with respect to the enforceability of the lien of the General Mortgage on chattels as against third parties (other than chattels delivered in pledge to the New Mortgage Trustee) or with respect to the enforceability of the lien of the New Mortgage on after-acquired property (in respect of which a supplemental indenture shall not have been executed, delivered and recorded) as against purchasers for value and without notice. The laws of the State of Illinois provide that no real estate in the State of Illinois shall be sold by virtue of any power of sale contained in any mortgage, but that all such mortgages shall be foreclosed only in the manner provided for foreclosing mortgages containing no power of sale, and that no real estate shall be sold to satisfy any mortgage except as authorized under the Illinois Mortgage Foreclosure Law. Such laws, however, provide for the foreclosing of mortgages by judicial proceedings and, in the judgment of such counsel, provide adequate remedies for the realization of the benefits of the security provided in the General Mortgage. (D) The First Mortgage Bond has been duly authorized, executed, authenticated, issued and delivered to the New Mortgage Trustee, and constitutes the valid and binding obligation of the Company enforceable in accordance with its terms, except as the same may be limited by (a) bankruptcy, insolvency, reorganization moratorium or other laws relating to or affecting the enforcement of creditors' rights, and (b) general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), and (subject to the qualifications mentioned in subparagraph (E) below with respect to the enforceability of the First Mortgage and to the provisions of any purchase or sinking fund or analogous provisions for any particular series of bonds established by any indenture supplemental to the First Mortgage) is entitled to the benefit and security of the First Mortgage in accordance with the terms thereof equally and ratably with all other bonds issued under the First Mortgage; and the New Mortgage Trustee as the registered owner of the First Mortgage Bond will be entitled to the payment of principal and interest, and premium, if any, in case of redemption, as therein provided. 6 7 (E) The First Mortgage and the First Mortgage Supplemental Indenture have each been duly authorized, executed and delivered and are valid and binding instruments enforceable in accordance with their terms, except as the same may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors' rights or the enforcement of the security provided by the First Mortgage, and (b) general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that no opinion is expressed with respect to the enforceability of the lien of the First Mortgage on chattels as against third parties (other than chattels delivered in pledge to the First Mortgage Trustee), or with respect to the enforceability of the lien of the First Mortgage on after-acquired property (in respect of which a supplemental indenture shall not have been executed, delivered and recorded) as against purchasers for value and without notice. The laws of the State of Illinois provide that no real estate in the State of Illinois shall be sold by virtue of any power of sale contained in any mortgage, but that all such mortgages shall be foreclosed only in the manner provided for foreclosing mortgages containing no power of sale, and that no real estate shall be sold to satisfy any mortgage except as authorized under the Illinois Mortgage Foreclosure Law. Such laws, however, provide for the foreclosing of mortgages by judicial proceedings and, in our judgment, provide adequate remedies for the realization of the benefits of the security provided in the First Mortgage. (F) The General Mortgage constitutes a valid and legally effective mortgage creating a valid lien, which lien is junior to the lien of the First Mortgage, for the security of all bonds duly issued thereunder upon substantially all of the Company's properties used in the generation, purchase, transmission, distribution and sale of electricity or gas, with the exceptions, and subject to the reservations, encumbrances (including the lien of the First Mortgage) and restrictions recited in the granting and habendum clauses of, and as provided in, the General Mortgage, or referred to in the Prospectus under the subcaption "Security" under the caption "Description of the New Mortgage Bonds." Except as to after-acquired property, and except as to property sold, or under contract to be sold, or otherwise disposed of by the Company and released from the lien of the General Mortgage, or abandoned, pursuant to the provisions thereof, the Company has good and sufficient title to all the properties described in, and conveyed or pledged by, the General Mortgage with the exceptions and subject to the reservations, encumbrances (including the lien of the First Mortgage) and restrictions recited in the granting and habendum clauses of, and as provided in, the General Mortgage, or referred to in the Prospectus under said sub-caption "Security." 7 8 (G) The First Mortgage constitutes a valid and legally effective mortgage creating a valid first lien for the security of all bonds duly issued thereunder upon substantially all of the fixed properties owned and franchises and rights held by the Company, with the exceptions, and subject to the reservations, encumbrances and restrictions recited in the granting and habendum clauses of, and as provided in, the First Mortgage, or referred to in the Prospectus under the subcaption "Description of First Mortgage Bonds -- Security." Except as to after-acquired property, and except as to property sold, or under contract to be sold, or otherwise disposed of by the Company and released from the lien of the First Mortgage, or abandoned, pursuant to the provisions thereof, the Company has good and sufficient title to all the properties described in, and conveyed or pledged by, the First Mortgage with the exceptions, and subject to the reservations, encumbrances, and restrictions recited in the granting and habendum clauses of, and as provided in, the First Mortgage, or referred to in the Prospectus under said subcaption "Security." (H) The Registration Statement has become effective under the Act; the General Mortgage has been duly qualified under the Trust Indenture Act to the extent required; to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto, as of their respective effective or issue dates, complied as to form in all material respects with the requirements of the Act, the Exchange Act, the Trust Indenture Act and the Rules and Regulations; such counsel has no reason to believe that the Registration Statement or the Prospectus, or any such amendment or supplement, as of such respective dates, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel does not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Registration Statement or the Prospectus. 8 9 (I) This Agreement has been duly authorized, executed and delivered by the Company. (J) The Illinois Commerce Commission has entered orders (a) permitting the execution and delivery of the General Mortgage, the Supplemental Indenture, the First Mortgage, and the First Mortgage Supplemental Indenture, respectively, and (b) approving the issuance and sale of the Purchased Bonds and the issuance and pledge of the First Mortgage Bond; said, orders are valid and in effect and no further approval, authorization, consent or order of, or action by, any other regulatory authority is necessary with respect to the execution and delivery of the General Mortgage, the Supplemental Indenture, the First Mortgage or the First Mortgage Supplemental Indenture, the issuance and sale of the Purchased Bonds, or the issuance and pledge of the First Mortgage Bond, each as contemplated by this Agreement; it being understood that in giving such opinion such counsel is not passing upon the authorizations or approvals which may be necessary under the securities or blue sky laws of any jurisdiction other than the United States of America. The issuance and sale of the Purchased Bonds and the issuance and pledge of the First Mortgage Bond, each as contemplated by this Agreement, are in conformity with the terms of said orders of the Illinois Commerce Commission. (K) The statements made in the Prospectus under the caption "Description of the New Mortgage Bonds" and the subcaption "Description of First Mortgage Bonds," insofar as they purport to summarize provisions of the documents specifically referred to under said captions, fairly present the information called for with respect thereto by Form S-3. (L) The statements in the Prospectus and in the Company's Annual Report on Form 10-K for the year ended December 31, 199_ (which is incorporated by reference in the Prospectus) as to matters of law and legal conclusions which are stated in the Prospectus to have been made on the authority of such counsel, have been reviewed by such counsel and, as to matters of law and legal conclusions, are correct. (M) The execution, delivery and performance by the Company of this Agreement, the General Mortgage, the Supplemental Indenture and the First Mortgage Supplemental Indenture, and the incurrence by the Company of the obligations and the consummation of the transactions contemplated by this Agreement and the foregoing Supplemental Indenture and First Mortgage Supplemental Indenture, will not conflict with or constitute a breach of, or default under, the Restated Articles of Incorporation or By-Laws of the Company or, to such counsel's knowledge, any mortgage, contract, lease, 9 10 note or other instrument to which the Company or any significant subsidiary of the Company is a party or by which the Company or any significant subsidiary of the Company may be bound, or any law, administrative regulation or any administrative, arbitration or court order. (iii) An opinion from __________________, counsel for the Underwriters, as to those matters as the Underwriters may reasonably require. (iv) A certificate of the Chairman, President, an Executive Vice President, a Senior Vice President, a Vice President or General Counsel and the Treasurer or the principal financial or accounting officer of the Company, dated the Closing Date, in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission, and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company except as set forth or contemplated in the Prospectus or as described in such certificate. (v) An order or orders of the Illinois Commerce Commission authorizing the issuance and sale of the Purchased Bonds in accordance with the terms and conditions hereof shall be in full force and effect and shall contain no condition or provision unacceptable to the Underwriters, it being understood that no order in effect as of the date hereof contains any such unacceptable condition or provision. (vi) A copy of the Company's audited financial statements at December 31, 199_, manually signed by Price Waterhouse. The Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Underwriters reasonably request. 5. Conditions to the Obligation of the Company. The obligation of the Company to sell and deliver the Purchased Bonds on the Closing Date is subject to the following conditions precedent: (a) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or, to the knowledge of the Company or the Underwriters, shall be contemplated by the Commission. 10 11 (b) There shall be in effect on the Closing Date an order of the Illinois Commerce Commission authorizing the issuance and sale of the Purchased Bonds in accordance with the terms and conditions thereof, and no order of the Illinois Commerce Commission shall be in effect at the Closing Date, which would prevent the sale and delivery of the Purchased Bonds or which contains any condition or provision with respect to such sale which is not acceptable to the Company, it being understood that no order in effect at the date of this Agreement contains any such unacceptable condition or provision. If any such condition shall not have been satisfied, then the Company shall be entitled, by notice in writing to the Underwriters, to terminate this Agreement without liability on the part of the Company or any Underwriter, except as provided herein. 6. Indemnification. (a) The Company will indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of the Act against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or such controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; and will reimburse each Underwriter and each such controlling person for any legal or other expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein or in reliance upon and in conformity with the Form T-1 of the New Mortgage Trustee. This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Underwriter will indemnify and hold harmless the Company, each of its directors and officers and each person, if any, who controls the Company within the meaning of the Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus or any amendment or supplement thereto, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the 11 12 statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriters specifically for use therein; and will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnity agreement will be in addition to any liability which such Underwriters may otherwise have. (c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, except as otherwise provided in the succeeding sentence. If the indemnifying party shall not have employed counsel to have charge of the defense of any such action, or if any such indemnified party or parties shall have reasonably concluded that there is a conflict of interest which may give rise to defenses available to them which are different from or additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), legal and other expenses thereafter reasonably incurred by the indemnified party shall be borne by the indemnifying party. Neither the indemnifying party nor indemnified party shall be liable for any settlement of any such action effected without its written consent. (d) If recovery is not available under the foregoing indemnification provisions of this Section, for any reason other than as specified therein, the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses, except to the extent that contribution is not permitted under Section 11(f) of the Act. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the relative benefits received by each party from the offering of the Purchased Bonds (taking into account the portion of the proceeds of the offering realized by each), the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement 12 13 or omission, and any other equitable considerations appropriate under the circumstances. The Company and the Underwriters agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. The Underwriters or person controlling such Underwriters shall not be obligated to make contribution hereunder which in the aggregate exceeds the total public offering price of the Purchased Bonds less the aggregate amount of any damages which the Underwriters and their controlling persons have otherwise been required to pay in respect of the same claim or any substantially similar claim. 7. Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase the Purchased Bonds hereunder on the Closing Date and the aggregate principal amount of Purchased Bonds which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the aggregate principal amount of the Purchased Bonds which the Underwriters are obligated to purchase on the Closing Date, you may make arrangements satisfactory to the Company for the purchase of such Purchased Bonds by other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Purchased Bonds which such defaulting Underwriters agreed but failed to purchase on the Closing Date. If any Underwriter or Underwriters so default and the aggregate principal amount of the Purchased Bonds with respect to which such default or defaults occur is more than the above percentage and arrangements satisfactory to you and the Company for the purchase of such bonds by other persons are not made within thirty-six hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section 8 hereof. In the event that any Underwriter or Underwriters default in their obligations to purchase the Purchased Bonds hereunder, the Company may by prompt written notice to you postpone the Closing Date for a period of not more than seven full business days in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus or in any other documents, and the Company will promptly file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter under this Section 7. Nothing herein will relieve a defaulting Underwriter, from liability for its default. 8. Survival of Representations, Warranties, etc. The respective representations, warranties, agreements and indemnities of the Company and the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of the Underwriters or the Company or any of their officers or directors or any controlling person, and will survive delivery of any payment for the Purchased Bonds. 9. Termination of Agreement. The Representatives may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Date (i) if there has been, since the date of this Agreement or since the respective dates as of which information is given in the Registration 13 14 Statement, any material adverse change in the condition, financial or otherwise, or in the earnings, or business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any national or international calamity or crisis, the effect of which is such as to make it, in the judgment of the Representatives, impracticable to market the Purchased Bonds or to enforce contracts for the sale of the Purchased Bonds, or (iii) if trading on the New York Stock Exchange has been suspended, or if a banking moratorium has been declared by either Federal or New York authorities. If this Agreement is terminated pursuant to this Section 9, such termination shall be without liability of any party to any other party except as provided in Section 8 hereof. 10. Notice. All communications hereunder shall be in writing and if sent to the Company will be mailed, delivered or transmitted via facsimile and confirmed to it at 500 South 27th Street, Decatur, Illinois 62525 and if sent to any of the Underwriters will be mailed, delivered or transmitted via facsimile and confirmed to such addresses as the Representatives of the Underwriters shall advise the Company in writing. 11. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 6 hereof, and no other person will have any right or obligation hereunder. 12. Counterparts. This Agreement may be executed in counterparts all of which, taken together, shall constitute a single agreement among the parties to such counterparts. 13. Representation of the Underwriters. The Representatives represent and warrant to the Company that they are authorized to act as the representatives of the Underwriters in connection with this financing, and the Representatives' execution and delivery of this Agreement and any action under this Agreement taken by such Representatives will be binding upon all Underwriters. 14. Interpretation When No Representatives. In the event no Underwriters are named in Schedule II hereto, the term "Underwriters" shall be deemed for all purposes of this Agreement to be the Underwriter or Underwriters named as such in Schedule I hereto, the principal amount of the Purchased Bonds to be purchased by any such Underwriter shall be that set forth opposite its name in Schedule I hereto and all reference to the "Representatives" shall be deemed to be the Underwriter or Underwriters named in such Schedule I. [Signature Page Follows] 14 15 If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Company and the Underwriters in accordance with its terms. Very truly yours, ILLINOIS POWER COMPANY By: ____________________________ Its:____________________________ Accepted as of the date of this Underwriting Agreement set forth in Schedule I hereto. ____________________________________________ , as Representatives By: ____________________________ Its:____________________________ 15 16 SCHEDULE I NEW MORTGAGE BONDS, ____% SERIES DUE _____ Name and address of Representatives: ______________________________________ ______________________________________ ______________________________________ Purchase Price and Description of Purchased Bonds: Principal Amount: $ _________________ Purchase Price: ____% of the Principal Amount Interest Rate: ____% Initial Public Offering Price: ____% Selling Concession: ____% Reallowance to Dealers: ____% Maturity: ______ Sinking Fund Provisions: ______ Redemption Provisions: ___________________________________________________ Other Provisions: _____________________________________________________________ Time and Date of Delivery and Payment (the "Closing Date") Date: _______________ Time: _______________ Place of Delivery of Purchased Bonds: ______________________ Type of Funds: _________________________ I-1 17 Method of Payment: _________________ Underwriting Agreement Dated: ___________, ____________ I-2 18 SCHEDULE II
PRINCIPAL AMOUNT OF NAME OF UNDERWRITER PURCHASED BONDS - ------------------- ------------------- TOTAL: $ ===============
II-1 EX-1.2 3 UNDERWRITING AGREEMENT - UNSECURED DEBT SECURITIES 1 EXHIBIT 1.2 ILLINOIS POWER COMPANY UNSECURED DEBT SECURITIES UNDERWRITING AGREEMENT --------------, ------- Chicago, Illinois To the Representative(s) named in Schedule I hereto of the Underwriters named in Schedule II hereto. Dear Sirs: Illinois Power Company, an Illinois corporation (the "Company"), proposes to issue and sell from time to time, in one or more series, its Unsecured Debt Securities which are registered under the registration statement referred to in Section 1(a) (the "Securities"). The Securities will be issued under an Indenture, dated as of July 15, 1986, between the Company and The Chase Manhattan Bank, as Trustee, which provides for the issuance of an unlimited principal amount of Debt Securities of the Company in one or more series. The Company proposes to sell to the underwriters named in Schedule II hereto (the "Underwriters") for whom you are acting as Representative or Representatives (the "Representatives"), Securities in the aggregate principal amount and of the series identified in Schedule I hereto ("Purchased Securities"). 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants to, and agrees with the Underwriters that: (a) A Registration statement (No. 333- ), including a prospectus, relating to the Securities has been filed with the Securities and Exchange Commission (the "Commission") and has become effective. Such registration statement, including the prospectus therein, as amended and supplemented to the date of this Agreement (exclusive of the supplements to the prospectus relating solely to Securities that are not the Purchased Securities) and as supplemented by the Prospectus Supplement to be included as part of the prospectus to be filed with the Commission pursuant to Rule 424 (c) under the Securities Act of 1933 ("Act") as provided in Section 3(a) hereof, are hereinafter referred to as the "Registration Statement" and such prospectus is hereinafter referred to as the "Prospectus." Any reference herein to the Registration Statement or the Prospectus shall be deemed to include the document incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934 ("Exchange Act") on or before the date of this Agreement; and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated therein by reference after the date of this Agreement. (b) The Registration Statement and the Prospectus, both at the time the Prospectus is filed with the Commission pursuant to Rule 424(c) under the Act as provided in Section 3(a) hereof, and any further amendments and supplements to the Prospectus when they become effective or are filed with the Commission, as the case may be, prior to the Closing Date, will conform in all respects to the requirements of the Act, the Trust Indenture Act of 1939 ("Trust Indenture Act") and the rules 2 and regulations of the Commission ("Rules and Regulations"), and none of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to statements or omissions in such documents based upon written information furnished to the Company by any Underwriter specifically for use therein or in reliance upon and in conformity with the Form T-l of the Trustee. 2. PURCHASE, OFFERING AND DELIVERY. Subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto, the principal amount of the Purchased Securities set forth opposite such Underwriter's name in Schedule II hereto. It is understood that the Underwriters propose to offer the Purchased Securities for sale to the public as set forth in the Prospectus Supplement relating to the Purchased Securities. The Purchased Securities to be purchased by each Underwriter shall be delivered by the Company for the account of such Underwriter to the place specified in Schedule I hereto against payment of the purchase price therefor by such Underwriter or on its behalf by certified or official check or checks in immediately available funds drawn to the order of the Company, at the location and at the time and date specified in Schedule I hereto or at such other time and date as the Representatives and the Company may agree, such time and date being herein referred to as the "Closing Date." The Purchased Securities so to be delivered will be in fully registered form in such authorized denominations and registered in such names as the Representatives request at least four full business days before the Closing Date and will be made available for checking and packaging in the city designated in Schedule I as the place of delivery at least 24 hours prior to the Closing Date. 3. COVENANTS OF THE COMPANY. The Company covenants and agrees with the Underwriters that: (a) Promptly following execution of this Agreement, the Company will cause the Prospectus (including as part thereof a prospectus supplement relating to the Purchased Securities ("Prospectus Supplement")) to be filed with the Commission pursuant to Rule 424(c) under the Act the Company will promptly advise the Representatives when such filing has been made. Prior to such filing the Company will work with the Representatives in the preparation of the Prospectus Supplement to assure that the Representatives have no reasonable objection to the form or content thereof when filed. (b) If at any time when a prospectus relating to the Purchased Securities is required to be delivered under the Act any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement or Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will prepare and file with the Commission an amendment or supplement which will correct such statement or omission, or an amendment which will effect such compliance. 2 3 (c) The Company will furnish to each Underwriter such number of copies of the Prospectus as may be reasonably requested in connection with the offering of the Purchased Securities. (d) The Company will pay all expenses incident to the performance of its obligations under this Agreement, and will reimburse the Underwriters for any expenses up to $___________ in the aggregate (including fees and disbursements of counsel) incurred in connection with qualification of the Purchased Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto. 4. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligation of the several Underwriters to purchase and pay for the Purchased Securities hereunder will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent: (a) Subsequent to the execution and delivery of this Agreement there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries which, in the judgment of a majority in interest of the Underwriters, including you, materially impairs the investment quality of the Purchased Securities. (b) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, or the Underwriters, shall be contemplated by the Commission. (c) The Underwriters shall have received the following: (i) A letter of Price Waterhouse, dated the Closing Date, confirming that they are independent accountants within the meaning of the Act and the Rules and Regulations, and stating in effect that (i) in their opinion, the financial statements examined by them and incorporated by reference in the Prospectus comply as to form in all material respects with the accounting requirements of the Act and the Rules and Regulations applicable to annual reports on Form 10-K (ii) on the basis of a reading of the interim financial statements referred to in clause (A) below, a reading of the latest available interim financial statements of the Company, a reading of the minutes of the Board of Directors and stockholders of the Company as set forth in the minute books of the Company and inquiries of officials of the Company responsible for financial and accounting matters, nothing came to their attention that caused them to believe that (A) the unaudited financial statements included in the most recent Quarterly Report on Form 10-Q incorporated by reference in the Prospectus were not prepared on a basis substantially consistent with that of the audited financial statements as of and for the fiscal year ended December 31, 199__ incorporated by reference in the Prospectus, or (B) at the date of the latest available balance sheet read by such accountants or at a subsequent specified date not more than five days prior to the Closing Date, there was any change in the capital stock or long term debt of the Company or, at the date of the latest available balance sheet read by such accountants, there was any decrease in net assets, in each case as compared with the corresponding amounts shown in the December 3 4 31, 199__ balance sheet incorporated by reference in the Prospectus, or (C) for the period of twelve months ended with the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the twelve months ended December 31, 199__ in operating revenues, operating income, net income, earnings per share of common stock or the ratio of earnings to fixed charges, except in all cases set forth in clauses (B) and (C) above for changes or decreases which the Prospectus discloses have occurred or may occur, or which are described in such letter, and (iii) they have compared the dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Prospectus under the captions "Summary Information," "Ratio of Earnings to Fixed Charges" and "Description of Unsecured Debt Securities" and contained in the Company's Annual Report on Form 10-K for the year ended December 31, 199__ (which is incorporated by reference in the Prospectus) (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements included in material incorporated by reference in the Prospectus shall be deemed included in the Prospectus for purposes of this subsection. (ii) An opinion of Schiff Hardin & Waite, counsel for the Company, dated the Closing Date, to the effect that: (A) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Illinois, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; and the Company is not required to be qualified as a foreign corporation in any jurisdiction. (B) The Purchased Securities have been duly authorized, executed, authenticated, issued and delivered and constitute the valid and binding obligations of the Company enforceable in accordance with their terms, and (subject to the qualifications mentioned in subparagraph (C) below with respect to the enforceability of the Indenture and to any variations established for any particular series of Securities) are entitled to the benefit of the Indenture in accordance with the terms thereof equally and ratably with all other securities issued under the Indenture. (C) The Indenture has been duly authorized, executed and delivered and is a valid and binding instrument enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights generally. (D) The Registration Statement has become effective under the Act; the Indenture has been duly qualified under the Trust Indenture Act; to the best of the 4 5 knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto, as of their respective effective or issue dates, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the Rules and Regulations; such counsel have no reason to believe that either the Registration Statement or the Prospectus, or any such amendment or supplement, as of such respective dates, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as Exhibits to the Registration Statement which are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in Registration Statement or the Prospectus. (E) This Agreement has been duly authorized, executed and delivered by the Company. (F) The Illinois Commerce Commission has entered an order permitting the issue and sale of the Purchased Securities; and said order is valid and in effect and no further approval, authorization, consent or order of, or action by, any other regulatory authority is necessary with respect to the execution and delivery of the Indenture or the issue and sale of the Purchased Securities, as contemplated by this Agreement, it being understood that in giving such opinion such counsel are not passing upon the authorizations or approvals which may be necessary under the securities or blue sky laws of any jurisdiction. The issue and sale of the Purchased Securities, as contemplated by this Agreement, is in conformity with the terms of said order of the Illinois Commerce Commission. (G) The statements made in the Prospectus under the caption "Description of the Unsecured Debt Securities" insofar as they purport to summarize provisions of the documents specifically referred to under said caption, fairly present the information called for with respect thereto by Form S-3. (H) The statements in the Prospectus and in the Company's most recent Annual Report on Form 10- K (which is incorporated by reference in the Prospectus) as to matters of law and legal conclusions which are stated n the Prospectus to have been made on the authority of such counsel have been reviewed by them and, as to matters of law and legal conclusions, are correct. 5 6 (iii) An opinion from ___________, counsel for the Underwriters, as to those matters as the Underwriters may reasonably require. (iv) A certificate of the Chairman, President, an Executive Vice President, a Senior Vice President or a Vice President and the Treasurer or the principal financial or accounting officer of the Company, dated the Closing Date, in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission, and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company except as set forth or contemplated in the Prospectus or as described in such certificate. (v) An order of the Illinois Commerce Commission authorizing the issuance and sale of the Purchased Securities in accordance with the terms and conditions hereof shall be in full force and effect and shall contain no conditions or provision unacceptable to Underwriters, it being understood that no order in effect as of the date hereof contains any such unacceptable condition or provision. The Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Underwriters reasonably request. 5. CONDITIONS OF THE OBLIGATION OF THE COMPANY. The obligation of the Company to sell and deliver the Purchased Securities on the Closing Date is subject to the following conditions precedent: (a) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have instituted, or, to the knowledge of the Company or the Underwriters, shall be contemplated by the Commission. (b) There shall be in effect on the Closing Date an order of the Illinois Commerce Commission authorizing the issuance and sale of the Purchased Securities in accordance with the terms and conditions thereof, and no order of the Illinois Commerce Commission shall be in effect at the Closing Date, which would prevent the sale and delivery of the Purchased Securities or which contains any condition or provision with respect to such sale which is not acceptable to the Company, it being understood that no order in effect at the date of this Agreement contains any such unacceptable condition or provision. If any such condition shall not have been satisfied, then the Company shall be entitled, by notice in writing to the Underwriters, to terminate this Agreement without liability on the part of the Company or any Underwriter, except as provided herein. 6 7 6. INDEMNIFICATION. (a) The Company will indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of the Act against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or such controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; and will reimburse each Underwriter and each such controlling person for any legal or other expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein or in reliance upon and in conformity with the Form T-1 of the Trustee. This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Underwriter will indemnify and hold harmless the Company, each of its directors and officers and each person, if any, who controls the Company within the meaning of the Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus or any amendment or supplement thereto, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriters specifically for use therein; and will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnity agreement will be in addition to any liability which such Underwriters may otherwise have. (c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement 7 8 thereof the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party) , and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. (d) If recovery is not available under the foregoing indemnification provisions of this Section, for any reason other than as specified therein, the parties entitled to indemnification by the terms thereof shall be entitled to contribution for liabilities and expenses, except to the extent that contribution is not permitted under Section 11(f) of the Act. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the relative benefits received by each party from the offering of the Purchased Securities (taking into account the portion of the proceeds of the offering realized by each) , the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. The Company and the Underwriters agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. The Underwriters or person controlling such Underwriters shall not be obligated to make contribution hereunder which in the aggregate exceeds the total public offering price of the Purchased Securities less the aggregate amount of any damages which the Underwriters and their controlling persons have otherwise been required to pay in respect of the same claim or any substantially similar claim. 7. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default in their obligations to purchase the Purchased Securities hereunder on the Closing Date and the aggregate principal amount of Purchased Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the aggregate principal amount of the Purchased Securities which the Underwriters are obligated to purchase on the Closing Date, you may make arrangements satisfactory to the Company for the purchase of such Purchased Securities by other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Purchased Securities which such defaulting Underwriters agreed but failed to purchase on the Closing Date. If any Underwriter or Underwriters so default and the aggregate principal amount of the Purchased Securities with respect to which such default or defaults occur is more than the above percentage and arrangements satisfactory to you and the Company for the purchase of such Purchased Securities by other persons are not made within thirty-six hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section 8. In the event that any Underwriter or Underwriters default in their obligations to purchase the Purchased Securities hereunder, the Company may, by prompt written notice to you, postpone the Closing Date for a period of not more than seven full business days in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus or the Registration Statement or 8 9 supplements to the Prospectus which may thereby be made necessary. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default. 8. SURVIVAL OF REPRESENTATIONS, WARRANTIES, ETC. The respective representations, warranties, agreements and indemnities of the Company and the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of the Underwriters or the Company or any of their officers or directors or any controlling person, and will survive delivery of any payment for the Purchased Securities. 9. NOTICE. All communications hereunder shall be in writing and if sent to the Company will be mailed, delivered or transmitted via facsimile and confirmed to it at 500 South 27th Street, Decatur, Illinois 62525 and if sent to any of the Underwriters will be mailed, delivered or transmitted via facsimile and confirmed to such addresses as the Representatives of the Underwriters shall advise the Company in writing. 10. SUCCESSORS. This Underwriting Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 6, and no other person will have any right or obligation hereunder. 11. COUNTERPARTS. This Agreement may be executed in counterparts all of which, taken together, shall constitute a single agreement among the parties to such counterparts. 12. REPRESENTATION OF THE UNDERWRITERS. The Representatives represent and warrant to the Company that they are authorized to act as the representatives of the Underwriters in connection with this financing, and the Representatives' execution and delivery of this Agreement and any action under this Agreement taken by such Representatives will be binding upon all Underwriters. 13. INTERPRETATION WHEN NO REPRESENTATIVES. In the event no Underwriters are named in Schedule II hereto, the term "Underwriters" shall be deemed for all purposes of this Agreement to be the Underwriter or Underwriters named as such in Schedule I hereto, the principal amount of the Purchased Securities to be purchased by any such Underwriter shall be that set forth opposite its name in Schedule I hereto and all reference to the "Representatives" shall be deemed to be the Underwriter or Underwriters named in Schedule I. 9 10 If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Company and the Underwriters in accordance with its terms. Very truly yours, Illinois Power Company By___________________________ Its________________________ Accepted as of the date of this Underwriting Agreement set forth in Schedule I hereto. __________________________________, as Representatives By________________________________ Its_____________________________ 10 11 SCHEDULE I [Representatives of the] Underwriters and addresses [and any Principal Amount of Purchased Securities if no Underwriters named in Schedule II]. Purchase Price and Description of Purchased Securities: Aggregate Principal Amount: $_______ Purchase price:_______% of the Principal Amount Interest Rate:_______% Initial Public Offering Price:_______% Dealer Discount:_______% Reallowance to Dealers:_______% Maturity:_______ Sinking Fund Provisions:_______ Redemption Provisions:_______ Other Provisions:_______ Time and Date of Delivery and Payment ("Closing Date"): Date:_______ Time:_______ Place of delivery of payment:_______ Type of Funds:_______ Method of payment:_______ Place of delivery of Purchased Securities:_______ Underwriting Agreement Dated:_______ 11 12 SCHEDULE II Principal Amount of Purchased Underwriter Securities - ----------- ---------- 12 EX-4.39 4 SUPP INDENT #1 3/1/98 TO MORT & DEED 1 EXHIBIT 4.39 ================================================================================ ILLINOIS POWER COMPANY TO HARRIS TRUST AND SAVINGS BANK, AS TRUSTEE ------------- SUPPLEMENTAL INDENTURE NO. 1 DATED AS OF MARCH 1, 1998 TO MORTGAGE AND DEED OF TRUST DATED NOVEMBER 1, 1943 ================================================================================ - - 2 SUPPLEMENTAL INDENTURE No. 1 dated as of March 1, 1998 ("Supplemental Indenture No. 1"), made by and between ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), party of the first part, and 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, hereinafter mentioned, party of the second part; WHEREAS, the Company has heretofore executed and delivered its Mortgage and Deed of Trust dated November 1, 1943 ("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, pursuant to the terms and provisions of the Original Indenture there were created and authorized by Supplemental Indentures thereto bearing the following dates, respectively, the First Mortgage Bonds of the series issued thereunder and respectively identified opposite such dates:
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED ------------ ---------------- --------------------- November 1, 1943 4% Series due 1973 Bonds of the 1973 Series (redeemed) March 1, 1946 2 7/8% Series due 1976 Bonds of the 1976 Series (paid at maturity) February 1, 1948 3 1/2% Series due 1978 Bonds of the 1978 Series (paid at maturity) July 1, 1949 2 7/8 % Series due 1979 Bonds of the 1979 Series (paid at maturity) April 1, 1950 2 3/4% Series due 1980 Bonds of the 1980 Series (paid at maturity) March 1, 1952 3 1/2% Series due 1982 Bonds of the 1982 Series (paid at maturity) November 1, 1953 3 1/2% Series due 1983 Bonds of the 1983 Series (paid at maturity) July 1, 1956 3 3/4% Series due 1986 Bonds of the 1986 Series (paid at maturity)
3
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED ------------ ---------------- --------------------- May 1, 1958 4% Series due 1988 Bonds of the 1988 Series (redeemed) January 1, 1963 4 1/4% Series due 1993 Bonds of the 1993 Series (paid at maturity) October 1, 1966 5.85% Series due 1996 Bonds of the 1996 Series (paid at maturity) January 1, 1968 6 3/8% Series due 1998 Bonds of the First 1998 (redeemed) Series October 1, 1968 6 3/4% Series due October Bonds of the Second 1998 1, 1998 (redeemed) Series October 1, 1969 8.35% Series due 1999 Bonds of the First 1999 (redeemed) Series November 1, 1970 9% Series due 2000 Bonds of the 2000 Series (redeemed) October 1, 1971 7.60% Series due 2001 Bonds of the 2001 Series (redeemed) June 1, 1973 7 5/8% Series due 2003 Bonds of the First 2003 (redeemed) Series May 1, 1974 Pollution Control Bonds of the Pollution Series A Control Series A September 1, 1974 10 1/2% Series due 2004 Bonds of the First 2004 (redeemed) Series July 1, 1976 8 3/4% Series due 2006 Bonds of the 2006 Series (redeemed) May 1, 1977 Pollution Control Bonds of Pollution Control Series B Series B November 1, 1977 8 1/4% Series due 2007 Bonds of the 2007 Series (redeemed) August 1, 1978 8 7/8% Series due 2008 Bonds of the 2008 Series (redeemed) July 1, 1979 9 7/8% Series due July 1, Bonds of the Second 2004 2004 Series (redeemed)
-2- 4
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED ------------ ---------------- --------------------- July 31, 1980 11 3/8% Series due 1987 Bonds of the 1987 Series (redeemed) August 1, 1980 12 5/8% Series due 2010 Bonds of the 2010 Series (redeemed) July 1, 1982 14 1/2% Series due 1990 Bonds of the 1990 Series (redeemed) November 1, 1982 12% Series due 2012 Bonds of the 2012 Series (redeemed) December 15, 1983 Pollution Control Bonds of the Pollution Series C Control Series C (redeemed) May 15, 1984 Pollution Control Bonds of the Pollution Series D Control Series D (redeemed) March 1, 1985 Pollution Control Bonds of the Pollution Series E Control Series E (redeemed) February 1, 1986 10 1/2% Series due 2016 Bonds of the First 2016 (redeemed) Series July 1, 1986 9 7/8% Series due 2016 Bonds of the Second 2016 (redeemed) Series September 1, 1986 9 3/8% Series due 2016 Bonds of the Third 2016 (redeemed) Series February 1, 1987 Pollution Control Bonds of the Pollution Series F Control Series F (redeemed) February 1, 1987 Pollution Control Bonds of the Pollution Series G Control Series G (redeemed) February 1, 1987 Pollution Control Bonds of the Pollution Series H Control Series H (redeemed) July 1, 1987 Pollution Control Bonds of the Pollution Series I Control Series I July 1, 1988 10% Series due 1998 Bonds of the Third 1998 (redeemed) Series
-3- 5
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED ------------ ---------------- --------------------- July 1, 1991 Pollution Control Bonds of the Pollution Series J Control Series J June 1, 1992 Pollution Control Bonds of the Pollution Series K Control Series K June 1, 1992 Pollution Control Bonds of the Pollution Series L Control Series L July 1, 1992 7.95% Series due 2004 Bonds of the Third 2004 Series July 1, 1992 8 3/4% Series due 2021 Bonds of the 2021 Series September 1, 1992 6 1/2% Series due 1999 Bonds of the 1999 Series February 15, 1993 8% Series due 2023 Bonds of the 2023 Series March 15, 1993 6 1/8% Series due 2000 Bonds of the 2000 Series March 15, 1993 6 3/4% Series due 2005 Bonds of the 2005 Series July 15, 1993 7 1/2% Series due 2025 Bonds of the 2025 Series August 1, 1993 6 1/2% Series due 2003 Bonds of the Second 2003 Series October 15, 1993 5 5/8% Series due 2000 Bonds of the Second 2000 Series November 1, 1993 Pollution Control Bonds of the Pollution Series M Control Series M November 1, 1993 Pollution Control Bonds of the Pollution Series N Control Series N November 1, 1993 Pollution Control Bonds of the Pollution Series O Control Series O April 1, 1997 Pollution Control Bonds of the Pollution Series P Control Series P April 1, 1997 Pollution Control Bonds of the Pollution Series Q Control Series Q April 1, 1997 Pollution Control Bonds of the Pollution Series R Control Series R
-4- 6 and WHEREAS, the Company desires to create a new series of Bonds to be issued under the Original Indenture, to be known as Pollution Control Series S Bonds (the "Pollution Control Series S Bonds") and to issue additional Bonds under the Original Indenture; and WHEREAS, the Pollution Control Series S Bonds, are to be issued to Harris Trust and Savings Bank, as trustee (the "New Mortgage Trustee") under the Company's General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (the "New Mortgage") and are to be owned and held by the New Mortgage Trustee as "Pledged Bonds" (as defined in the New Mortgage) in accordance with the terms of the New Mortgage; 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 No. 1 in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture No. 1 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 SUPPLEMENTAL INDENTURE No. 1 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 the New Trustee and any successor holder of the Bonds as follows: ARTICLE I. DESCRIPTION OF POLLUTION CONTROL SERIES S BONDS. SECTION 1. The Company hereby creates a new series of Bonds to be known as "Pollution Control Series S Bonds." The Pollution Control Series S Bonds shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, all of the terms, conditions and covenants of the Original Indenture, as supplemented and modified. The Pollution Control Series S Bonds will be issued only to the New Mortgage Trustee as security for a series of bonds being issued under the Company's New Mortgage and the supplemental indenture no. 1 to the New Mortgage dated as of March 1, 1998 ("New Mortgage Pollution Control Series S Bonds") and in the same principal amount as the New Mortgage Pollution Control Series S Bonds. -5- 7 Pollution Control Series S Bonds shall be dated as provided in Section 6 of Article II of the Original Indenture. All Pollution Control Series S Bonds shall mature on March 1, 2028 and shall bear interest at the rate of five and four-tenths per cent (5.40%) per annum, payable semi-annually on March 1 and September 1 of each year, commencing September 1, 1998, until the principal sum is paid in full. Any payment by the Company of principal of , or premium or interest on, any Pollution Control Series S Bonds shall be applied by the New Mortgage Trustee to the payment of any principal, premium or interest, as the case may be, in respect of the New Mortgage Pollution Control Series S Bonds due in accordance with the terms of the New Mortgage. SECTION 2. The Pollution Control Series S Bonds and the Trustee's Certificate shall be substantially in the following forms respectively: [FORM OF FACE OF BOND] ILLINOIS POWER COMPANY (Incorporated under the laws of the State of Illinois) POLLUTION CONTROL SERIES S BOND No. __________ $18,700,000 ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company," which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to Harris Trust and Savings Bank as trustee (the "New Mortgage Trustee") under the Company's General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (the "New Mortgage") or its respective registered assigns, the principal sum of $18,700,000 on March 1, 2028, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts, and to pay interest in like coin or currency from March 1, 1998, payable semi-annually on March 1 and September 1 of each year, commencing September 1, 1998, at the rate of five and four-tenths percent (5.40%) per annum, until said principal sum is paid in full. Both the principal of, and the interest on, this Bond are payable at the agency of the Company in the City of Chicago, Illinois. This Bond shall not be entitled to any benefit under the Indenture or any indenture supplemental thereto, or become valid or obligatory for any purpose, until the form of certificate endorsed hereon shall have been signed by or on behalf of Harris Trust and Savings Bank, the Trustee under the Indenture, or a successor trustee thereto under the Indenture (the "Trustee"). The provisions of this Bond are continued on the reverse hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. -6- 8 IN WITNESS WHEREOF, Illinois Power Company has caused this Bond to be signed (manually or by facsimile signature) in its name by its President or a Vice President, and its corporate seal (or a facsimile thereof) to be hereto affixed and attested (manually or by facsimile signature) by its Secretary or an Assistant Secretary. Dated ______________, 1998 ILLINOIS POWER COMPANY, By . . . . . . . . . . . . . Vice President ATTEST: . . . . . . . . . . . . . . Assistant Secretary [FORM OF TRUSTEE'S CERTIFICATE] This Bond is one of the Bonds of the series designated therein, described in the within-mentioned Indenture and the Supplemental Indenture No. 1 dated as of March 1, 1998. HARRIS TRUST AND SAVINGS BANK, Trustee, By . . . . . . . . . . . . . . . . . . Authorized Officer [FORM OF REVERSE OF BOND) This Bond is one of a duly authorized issue of Bonds of the Company (the "Bonds") in unlimited aggregate principal amount, of the series hereinafter specified, all issued and to be issued under and equally secured by the Mortgage and Deed of Trust (the "Indenture"), dated November 1, 1943, executed by the Company to Harris Trust and Savings Bank (the "Trustee"), as Trustee, to which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated February 15, 1993, which amended Section 1 of Article IX of the Indenture, reference is hereby made for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of the registered owners of the Bonds and of the Trustee in respect thereof, and the terms and conditions upon which the Bonds are, and are to be, secured. The Bonds may be issued in series, for various principal sums, may mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided. This Bond is one of a series designated as the "Pollution Control Series S Bonds" (the "Pollution Control Series S Bonds") of the Company, unlimited in aggregate principal amount, issued under and secured by the Indenture and described in the supplemental indenture no. 1 dated as of March 1, -7- 9 1998 ("Supplemental Indenture No. 1 of March 1, 1998"), between the Company and the Trustee, supplemental to the Indenture. To the extent permitted by, and as provided in, the Indenture, modifications or alterations of the Indenture, or of any indenture supplemental thereto, and of the rights and obligations of the Company and of the holders of the Bonds and coupons may be made with the consent of the Company by an affirmative vote of the holders of not less than 662/3% in amount of the Bonds entitled to vote then outstanding, at a meeting of Bondholders called and held as provided in the Indenture, and by an affirmative vote of the holders of not less than 662/3% in amount of the Bonds of any series entitled to vote then outstanding and affected by such modification or alteration, in case one or more but less than all of the series of Bonds then outstanding under the Indenture are so affected; provided however, that no such modification or alteration shall be made which will affect the terms of payment of the principal of, or interest or premium, if any, on this Bond. This Pollution Control Series S Bond is subject to redemption in accordance with the terms of Article II of the Supplemental Indenture No. 1 of March 1, 1998. In case an Event of Default, as defined in the Indenture, shall occur, the principal of all the Bonds at any such time outstanding under the Indenture may be declared or may become due and payable, upon the conditions and in the manner and with the effect provided in the Indenture. The Indenture provides that such declaration may in certain events be rescinded by the holders of a majority in principal amount of the Bonds outstanding. No recourse shall be had for the payment of the principal of, or premium or interest on this Bond, or for any claim based hereon or on the Indenture or any indenture supplemental thereto, against any incorporator, or against any stockholder, director or officer, as such, past, present or future, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability, whether at common law, in equity, by any constitution, statute, rule of law, or otherwise, of incorporators, stockholders, directors or officers being released by every owner hereof by the acceptance of this Bond and as part of the consideration for the issue hereof, and being likewise released by the terms of the Indenture; provided, however, that nothing herein or in the Indenture or any indenture supplemental thereto contained shall prevent the enforcement of the liability, if any, of any stockholder or subscriber to capital stock upon or in respect of shares of capital stock not fully paid up. Notwithstanding any provision in the Indenture, the Supplemental Indenture No. 1 of March 1, 1998 or this Pollution Control Series S Bond to the contrary, any payment by the Company under the New Mortgage of principal of, or premium or interest on, bonds which shall have been authenticated and delivered under the New Mortgage (the "New Mortgage Pollution Control Series S Bonds") upon the basis of the issuance and delivery to the New Mortgage Trustee of the Pollution Control -8- 10 Series S Bonds shall, to the extent thereof, be deemed to satisfy and discharge the obligation of the Company to make a payment of principal, premium or interest, as the case may be, in respect of this Pollution Control Series S Bond which is then due. This Pollution Control Series S Bond constitutes a "Pledged Bond" (as defined in the New Mortgage) and is subject to all of the rights and restrictions applicable to Pledged Bonds as set forth in the New Mortgage. Without limiting the generality of the foregoing, this Pollution Control Series S Bond shall be subject to surrender by the New Mortgage Trustee in accordance with the provisions of Section 7.03 of the New Mortgage. To the extent that any provisions in the Indenture, the Supplemental Indenture No. 1 of March 1, 1998 or this Pollution Control Series S Bond are inconsistent with the provisions relating to Pledged Bonds that are set forth in the New Mortgage, the provisions of the New Mortgage shall apply. SECTION 3. Notwithstanding any provision in the Original Indenture, this Supplemental Indenture No. 1, or the Pollution Control Series S Bonds to the contrary, any payment by the Company under the New Mortgage of principal of, or premium or interest on, the New Mortgage Pollution Control Series S Bonds shall, to the extent thereof, be deemed to satisfy and discharge the obligation of the Company to make any payment of principal, premium or interest, as the case may be, in respect of the Pollution Control Series S Bonds which is then due. SECTION 4. The Pollution Control Series S Bonds constitute "Pledged Bonds" (as defined in the New Mortgage) and are subject to all of the rights and restrictions applicable to Pledged Bonds as set forth in the New Mortgage. Without limiting the generality of the foregoing, the Pollution Control Series S Bonds shall be subject to surrender by the New Mortgage Trustee in accordance with the provisions of Section 7.03 of the New Mortgage. To the extent that any provisions in the Original Indenture, this Supplemental Indenture No. 1 or the Pollution Control Series S Bonds are inconsistent with the provisions relating to Pledged Bonds that are set forth in the New Mortgage, the provisions of the New Mortgage shall apply. ARTICLE II. REDEMPTION. The Pollution Control Series S Bonds shall, subject to the provisions of the Original Indentures, be redeemable on the same terms, on the same dates and in the same manner as the New Mortgage Pollution Control Series S Bonds shall be redeemed under the terms of the supplemental indenture no. 1 to the New Mortgage dated as of March 1, 1998. -9- 11 ARTICLE III. ISSUE OF POLLUTION CONTROL SERIES S BONDS. SECTION 1. The Company hereby exercises the right to obtain the authentication of $18,700,000 principal amount of additional Bonds pursuant to the terms of Section 6 of Article III of the Original Indenture in substitution for refundable Bonds, all of which shall be Pollution Control Series S Bonds. SECTION 2. Such Pollution Control Series S Bonds may be authenticated and delivered prior to the filing for recordation of this Supplemental Indenture No. 1. SECTION 3. Notwithstanding any provision in the Original Indenture to the contrary, execution of the Pollution Control Series S Bonds on behalf of the Company, and the attesting of the corporate seal of the Company affixed to the Pollution Control Series S Bonds by the officers of the Company authorized to do such acts by Section 12 of Article II of the Original Indenture may be validly done either by the manual or the facsimile signatures of such authorized officers of the Company. ARTICLE IV. THE TRUSTEE. The Trustee hereby accepts the trusts hereby declared and provided, and agrees to perform the same upon the terms and conditions in the 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 No. 1 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 No. 1 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 No. 1. ARTICLE V. MISCELLANEOUS PROVISIONS. This Supplemental Indenture No. 1 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. -10- 12 IN WITNESS WHEREOF, Illinois Power Company has caused this Supplemental Indenture No. 1 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 Supplemental Indenture No. 1 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 Supplemental Indenture No. 1 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 Supplemental Indenture No. 1 to be attested by its Secretary or one of its Assistant Secretaries; all as of the first day of March, 1998. ILLINOIS POWER COMPANY By /s/ Robert A. Schultz ----------------------------- Robert A. Schultz Vice President -- Finance (CORPORATE SEAL) ATTEST: /s/ Leah Manning Stetzner - --------------------------------------- Leah Manning Stetzner Vice President, General Counsel and Corporate Secretary HARRIS TRUST AND SAVINGS BANK, Trustee By /s/ J. Bartolini ----------------------------- J. Bartolini Vice President (CORPORATE SEAL) ATTEST: /s/ C. Potter - --------------------------------- C. Potter Assistant Secretary -11- 13 STATE OF ILLINOIS ) COUNTY OF MACON ) SS. BE IT REMEMBERED, that on this 2nd day of March, 1998, before me, the undersigned, a Notary Public within and for the County and State aforesaid, personally came Robert A. Schultz, Vice President -- Finance and Leah Manning Stetzner, Vice President, General Counsel and Corporate 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 officers and as the free and voluntary act of said Illinois Power Company for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. ------------------------------------- Notary Public, Macon County, Illinois My Commission Expires on _________________. (NOTARIAL SEAL) STATE OF ILLINOIS ) SS. COUNTY OF COOK ) BE IT REMEMBERED, that on this 27th day of February, 1998, 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 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 Secretary, respectively, and as the 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. ------------------------------------ Notary Public, Cook County, Illinois My Commission Expires on May 21, 2001. (NOTARIAL SEAL) -12- 14 Return To: This Instrument Was Prepared By: ILLINOIS POWER COMPANY Schiff Hardin & Waite Real Estate Dept. F-14 7200 Sears Tower 500 S. 27th Street Chicago, IL 60606 Decatur, IL 62525 -13- EX-4.40 5 SUPP IND #2 DATED AS OF 3/1/98 TO MORT & DEED 1 EXHIBIT 4.40 ================================================================================ ILLINOIS POWER COMPANY TO HARRIS TRUST AND SAVINGS BANK, AS TRUSTEE ------------- SUPPLEMENTAL INDENTURE NO. 2 DATED AS OF MARCH 1, 1998 TO MORTGAGE AND DEED OF TRUST DATED NOVEMBER 1, 1943 ================================================================================ 2 SUPPLEMENTAL INDENTURE No. 2 dated as of March 1, 1998 ("Supplemental Indenture No. 2"), made by and between ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), party of the first part, and 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, hereinafter mentioned, party of the second part; WHEREAS, the Company has heretofore executed and delivered its Mortgage and Deed of Trust dated November 1, 1943 ("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, pursuant to the terms and provisions of the Original Indenture there were created and authorized by Supplemental Indentures thereto bearing the following dates, respectively, the First Mortgage Bonds of the series issued thereunder and respectively identified opposite such dates:
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED ------------ -------------- ------ November 1, 1943 4% Series due 1973 Bonds of the 1973 Series (redeemed) March 1, 1946 2 7/8% Series due 1976 Bonds of the 1976 Series (paid at maturity) February 1, 1948 3 1/2% Series due 1978 Bonds of the 1978 Series (paid at maturity) July 1, 1949 2 7/8 % Series due 1979 Bonds of the 1979 Series (paid at maturity) April 1, 1950 2 3/4% Series due 1980 Bonds of the 1980 Series (paid at maturity) March 1, 1952 3 1/2% Series due 1982 Bonds of the 1982 Series (paid at maturity) November 1, 1953 3 1/2% Series due 1983 Bonds of the 1983 Series (paid at maturity) July 1, 1956 3 3/4% Series due 1986 Bonds of the 1986 Series (paid at maturity)
-1- 3
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED ------------ -------------- ------ May 1, 1958 4% Series due 1988 Bonds of the 1988 Series (redeemed) January 1, 1963 4 1/4% Series due 1993 Bonds of the 1993 Series (paid at maturity) October 1, 1966 5.85% Series due 1996 Bonds of the 1996 Series (paid at maturity) January 1, 1968 6 3/8% Series due 1998 Bonds of the First 1998 (redeemed) Series October 1, 1968 6 3/4% Series due October Bonds of the Second 1998 1, 1998 (redeemed) Series October 1, 1969 8.35% Series due 1999 Bonds of the First 1999 (redeemed) Series November 1, 1970 9% Series due 2000 Bonds of the 2000 Series (redeemed) October 1, 1971 7.60% Series due 2001 Bonds of the 2001 Series (redeemed) June 1, 1973 7 5/8% Series due 2003 Bonds of the First 2003 (redeemed) Series May 1, 1974 Pollution Control Bonds of the Pollution Series A Control Series A September 1, 1974 10 1/2% Series due 2004 Bonds of the First 2004 (redeemed) Series July 1, 1976 8 3/4% Series due 2006 Bonds of the 2006 Series (redeemed) May 1, 1977 Pollution Control Bonds of Pollution Control Series B Series B November 1, 1977 8 1/4% Series due 2007 Bonds of the 2007 Series (redeemed) August 1, 1978 8 7/8% Series due 2008 Bonds of the 2008 Series (redeemed) July 1, 1979 9 7/8% Series due July 1, Bonds of the Second 2004 2004 Series (redeemed)
-2- 4
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED ------------ -------------- ------ July 31, 1980 11 3/8% Series due 1987 Bonds of the 1987 Series (redeemed) August 1, 1980 12 5/8% Series due 2010 Bonds of the 2010 Series (redeemed) July 1, 1982 14 1/2% Series due 1990 Bonds of the 1990 Series (redeemed) November 1, 1982 12% Series due 2012 Bonds of the 2012 Series (redeemed) December 15, 1983 Pollution Control Bonds of the Pollution Series C Control Series C (redeemed) May 15, 1984 Pollution Control Bonds of the Pollution Series D Control Series D (redeemed) March 1, 1985 Pollution Control Bonds of the Pollution Series E Control Series E (redeemed) February 1, 1986 10 1/2% Series due 2016 Bonds of the First 2016 (redeemed) Series July 1, 1986 9 7/8% Series due 2016 Bonds of the Second 2016 (redeemed) Series September 1, 1986 9 3/8% Series due 2016 Bonds of the Third 2016 (redeemed) Series February 1, 1987 Pollution Control Bonds of the Pollution Series F Control Series F (redeemed) February 1, 1987 Pollution Control Bonds of the Pollution Series G Control Series G (redeemed) February 1, 1987 Pollution Control Bonds of the Pollution Series H Control Series H (redeemed) July 1, 1987 Pollution Control Bonds of the Pollution Series I Control Series I July 1, 1988 10% Series due 1998 Bonds of the Third 1998 (redeemed) Series
-3- 5
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED ------------ -------------- ------ July 1, 1991 Pollution Control Bonds of the Pollution Series J Control Series J June 1, 1992 Pollution Control Bonds of the Pollution Series K Control Series K June 1, 1992 Pollution Control Bonds of the Pollution Series L Control Series L July 1, 1992 7.95% Series due 2004 Bonds of the Third 2004 Series July 1, 1992 8 3/4% Series due 2021 Bonds of the 2021 Series September 1, 1992 6 1/2% Series due 1999 Bonds of the 1999 Series February 15, 1993 8% Series due 2023 Bonds of the 2023 Series March 15, 1993 6 1/8% Series due 2000 Bonds of the 2000 Series March 15, 1993 6 3/4% Series due 2005 Bonds of the 2005 Series July 15, 1993 7 1/2% Series due 2025 Bonds of the 2025 Series August 1, 1993 6 1/2% Series due 2003 Bonds of the Second 2003 Series October 15, 1993 5 5/8% Series due 2000 Bonds of the Second 2000 Series November 1, 1993 Pollution Control Bonds of the Pollution Series M Control Series M November 1, 1993 Pollution Control Bonds of the Pollution Series N Control Series N November 1, 1993 Pollution Control Bonds of the Pollution Series O Control Series O April 1, 1997 Pollution Control Bonds of the Pollution Series P Control Series P April 1, 1997 Pollution Control Bonds of the Pollution Series Q Control Series Q April 1, 1997 Pollution Control Bonds of the Pollution Series R Control Series R
-4- 6 and WHEREAS, the Company desires to create a new series of Bonds to be issued under the Original Indenture, to be known as Pollution Control Series T Bonds (the "Pollution Control Series T Bonds") and to issue additional Bonds under the Original Indenture; and WHEREAS, the Pollution Control Series T Bonds, are to be issued to Harris Trust and Savings Bank, as trustee (the "New Mortgage Trustee") under the Company's General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (the "New Mortgage") and are to be owned and held by the New Mortgage Trustee as "Pledged Bonds" (as defined in the New Mortgage) in accordance with the terms of the New Mortgage; 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 No. 2 in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture No. 2 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 SUPPLEMENTAL INDENTURE No. 2 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 the New Trustee and any successor holder of the Bonds as follows: ARTICLE I. DESCRIPTION OF POLLUTION CONTROL SERIES T BONDS. SECTION 1. The Company hereby creates a new series of Bonds to be known as "Pollution Control Series T Bonds." The Pollution Control Series T Bonds shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, all of the terms, conditions and covenants of the Original Indenture, as supplemented and modified. The Pollution Control Series T Bonds will be issued only to the New Mortgage Trustee as security for a series of bonds being issued under the Company's New Mortgage and the supplemental indenture No. 2 to the New Mortgage dated as of March 1, 1998 ("New Mortgage Pollution Control Series T Bonds") and in the same principal amount as the New Mortgage Pollution Control Series T Bonds. -5- 7 Pollution Control Series T Bonds shall be dated as provided in Section 6 of Article II of the Original Indenture. All Pollution Control Series T Bonds shall mature on March 1, 2028 and shall bear interest at the rate of five and four-tenths per cent (5.40%) per annum, payable semi-annually on March 1 and September 1 of each year, commencing September 1, 1998, until the principal sum is paid in full. Any payment by the Company of principal of , or premium or interest on, any Pollution Control Series T Bonds shall be applied by the New Mortgage Trustee to the payment of any principal, premium or interest, as the case may be, in respect of the New Mortgage Pollution Control Series T Bonds due in accordance with the terms of the New Mortgage. SECTION 2. The Pollution Control Series T Bonds and the Trustee's Certificate shall be substantially in the following forms respectively: [FORM OF FACE OF BOND] ILLINOIS POWER COMPANY (Incorporated under the laws of the State of Illinois) POLLUTION CONTROL SERIES T BOND No. __________ $33,755,000 ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company," which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to Harris Trust and Savings Bank as trustee (the "New Mortgage Trustee") under the Company's General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (the "New Mortgage") or its respective registered assigns, the principal sum of $33,755,000 on March 1, 2028, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts, and to pay interest in like coin or currency from March 1, 1998, payable semi-annually on March 1 and September 1 of each year, commencing September 1, 1998, at the rate of five and four-tenths percent (5.40%) per annum, until said principal sum is paid in full. Both the principal of, and the interest on, this Bond are payable at the agency of the Company in the City of Chicago, Illinois. This Bond shall not be entitled to any benefit under the Indenture or any indenture supplemental thereto, or become valid or obligatory for any purpose, until the form of certificate endorsed hereon shall have been signed by or on behalf of Harris Trust and Savings Bank, the Trustee under the Indenture, or a successor trustee thereto under the Indenture (the "Trustee"). The provisions of this Bond are continued on the reverse hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. -6- 8 IN WITNESS WHEREOF, Illinois Power Company has caused this Bond to be signed (manually or by facsimile signature) in its name by its President or a Vice President, and its corporate seal (or a facsimile thereof) to be hereto affixed and attested (manually or by facsimile signature) by its Secretary or an Assistant Secretary. Dated ______________, 1998 ILLINOIS POWER COMPANY, By . . . . . . . . . . . . . Vice President ATTEST: . . . . . . . . . . . . . . Assistant Secretary [FORM OF TRUSTEE'S CERTIFICATE] This Bond is one of the Bonds of the series designated therein, described in the within-mentioned Indenture and the Supplemental Indenture No. 2 dated as of March 1, 1998. HARRIS TRUST AND SAVINGS BANK, Trustee, By . . . . . . . . . . . . . . . . . Authorized Officer [FORM OF REVERSE OF BOND) This Bond is one of a duly authorized issue of Bonds of the Company (the "Bonds") in unlimited aggregate principal amount, of the series hereinafter specified, all issued and to be issued under and equally secured by the Mortgage and Deed of Trust (the "Indenture"), dated November 1, 1943, executed by the Company to Harris Trust and Savings Bank (the "Trustee"), as Trustee, to which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated February 15, 1993, which amended Section 1 of Article IX of the Indenture, reference is hereby made for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of the registered owners of the Bonds and of the Trustee in respect thereof, and the terms and conditions upon which the Bonds are, and are to be, secured. The Bonds may be issued in series, for various principal sums, may mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided. This Bond is one of a series designated as the "Pollution Control Series T Bonds" (the "Pollution Control Series T Bonds") of the Company, unlimited in aggregate principal amount, issued under and secured by the Indenture and described in the supplemental indenture no. 2 dated as of March 1, -7- 9 1998 ("Supplemental Indenture No. 2 of March 1, 1998"), between the Company and the Trustee, supplemental to the Indenture. To the extent permitted by, and as provided in, the Indenture, modifications or alterations of the Indenture, or of any indenture supplemental thereto, and of the rights and obligations of the Company and of the holders of the Bonds and coupons may be made with the consent of the Company by an affirmative vote of the holders of not less than 662/3% in amount of the Bonds entitled to vote then outstanding, at a meeting of Bondholders called and held as provided in the Indenture, and by an affirmative vote of the holders of not less than 662/3% in amount of the Bonds of any series entitled to vote then outstanding and affected by such modification or alteration, in case one or more but less than all of the series of Bonds then outstanding under the Indenture are so affected; provided however, that no such modification or alteration shall be made which will affect the terms of payment of the principal of, or interest or premium, if any, on this Bond. This Pollution Control Series T Bond is subject to redemption in accordance with the terms of Article II of the Supplemental Indenture No. 2 of March 1, 1998. In case an Event of Default, as defined in the Indenture, shall occur, the principal of all the Bonds at any such time outstanding under the Indenture may be declared or may become due and payable, upon the conditions and in the manner and with the effect provided in the Indenture. The Indenture provides that such declaration may in certain events be rescinded by the holders of a majority in principal amount of the Bonds outstanding. No recourse shall be had for the payment of the principal of, or premium or interest on this Bond, or for any claim based hereon or on the Indenture or any indenture supplemental thereto, against any incorporator, or against any stockholder, director or officer, as such, past, present or future, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability, whether at common law, in equity, by any constitution, statute, rule of law, or otherwise, of incorporators, stockholders, directors or officers being released by every owner hereof by the acceptance of this Bond and as part of the consideration for the issue hereof, and being likewise released by the terms of the Indenture; provided, however, that nothing herein or in the Indenture or any indenture supplemental thereto contained shall prevent the enforcement of the liability, if any, of any stockholder or subscriber to capital stock upon or in respect of shares of capital stock not fully paid up. Notwithstanding any provision in the Indenture, the Supplemental Indenture No. 2 of March 1, 1998 or this Pollution Control Series T Bond to the contrary, any payment by the Company under the New Mortgage of principal of, or premium or interest on, bonds which shall have been authenticated and delivered under the New Mortgage (the "New Mortgage Pollution Control Series T Bonds") upon the basis of the issuance and delivery to the New Mortgage Trustee of the Pollution Control -8- 10 Series T Bonds shall, to the extent thereof, be deemed to satisfy and discharge the obligation of the Company to make a payment of principal, premium or interest, as the case may be, in respect of this Pollution Control Series T Bond which is then due. This Pollution Control Series T Bond constitutes a "Pledged Bond" (as defined in the New Mortgage) and is subject to all of the rights and restrictions applicable to Pledged Bonds as set forth in the New Mortgage. Without limiting the generality of the foregoing, this Pollution Control Series T Bond shall be subject to surrender by the New Mortgage Trustee in accordance with the provisions of Section 7.03 of the New Mortgage. To the extent that any provisions in the Indenture, the Supplemental Indenture No. 2 of March 1, 1998 or this Pollution Control Series T Bond are inconsistent with the provisions relating to Pledged Bonds that are set forth in the New Mortgage, the provisions of the New Mortgage shall apply. SECTION 3. Notwithstanding any provision in the Original Indenture, this Supplemental Indenture No. 2, or the Pollution Control Series T Bonds to the contrary, any payment by the Company under the New Mortgage of principal of, or premium or interest on, the New Mortgage Pollution Control Series T Bonds shall, to the extent thereof, be deemed to satisfy and discharge the obligation of the Company to make any payment of principal, premium or interest, as the case may be, in respect of the Pollution Control Series T Bonds which is then due. SECTION 4. The Pollution Control Series T Bonds constitute "Pledged Bonds" (as defined in the New Mortgage) and are subject to all of the rights and restrictions applicable to Pledged Bonds as set forth in the New Mortgage. Without limiting the generality of the foregoing, the Pollution Control Series T Bonds shall be subject to surrender by the New Mortgage Trustee in accordance with the provisions of Section 7.03 of the New Mortgage. To the extent that any provisions in the Original Indenture, this Supplemental Indenture No. 2 or the Pollution Control Series T Bonds are inconsistent with the provisions relating to Pledged Bonds that are set forth in the New Mortgage, the provisions of the New Mortgage shall apply. ARTICLE II. REDEMPTION. The Pollution Control Series T Bonds shall, subject to the provisions of the Original Indentures, be redeemable on the same terms, on the same dates and in the same manner as the New Mortgage Pollution Control Series T Bonds shall be redeemed under the terms of the supplemental indenture No. 2 to the New Mortgage dated as of March 1, 1998. -9- 11 ARTICLE III. ISSUE OF POLLUTION CONTROL SERIES T BONDS. SECTION 1. The Company hereby exercises the right to obtain the authentication of $33,755,000 principal amount of additional Bonds pursuant to the terms of Section 6 of Article III of the Original Indenture in substitution for refundable Bonds, all of which shall be Pollution Control Series T Bonds. SECTION 2. Such Pollution Control Series T Bonds may be authenticated and delivered prior to the filing for recordation of this Supplemental Indenture No. 2. SECTION 3. Notwithstanding any provision in the Original Indenture to the contrary, execution of the Pollution Control Series T Bonds on behalf of the Company, and the attesting of the corporate seal of the Company affixed to the Pollution Control Series T Bonds by the officers of the Company authorized to do such acts by Section 12 of Article II of the Original Indenture may be validly done either by the manual or the facsimile signatures of such authorized officers of the Company. ARTICLE IV. THE TRUSTEE. The Trustee hereby accepts the trusts hereby declared and provided, and agrees to perform the same upon the terms and conditions in the 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 No. 2 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 No. 2 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 No. 2. ARTICLE V. MISCELLANEOUS PROVISIONS. This Supplemental Indenture No. 2 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. -10- 12 IN WITNESS WHEREOF, Illinois Power Company has caused this Supplemental Indenture No. 2 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 Supplemental Indenture No. 2 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 Supplemental Indenture No. 2 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 Supplemental Indenture No. 2 to be attested by its Secretary or one of its Assistant Secretaries; all as of the first day of March, 1998. ILLINOIS POWER COMPANY By /s/ Robert A. Schultz ------------------------------------------ Robert A. Schultz Vice President -- Finance (CORPORATE SEAL) ATTEST: /s/ Leah Manning Stetzner - -------------------------------------- Leah Manning Stetzner Vice President, General Counsel and Corporate Secretary HARRIS TRUST AND SAVINGS BANK, Trustee By /s/ J. Bartolini ------------------------------------------ J. Bartolini Vice President (CORPORATE SEAL) ATTEST: /s/ C. Potter - --------------------------- C. Potter Assistant Secretary -11- 13 STATE OF ILLINOIS ) SS. COUNTY OF MACON ) BE IT REMEMBERED, that on this 2nd day of March, 1998, before me, the undersigned, a Notary Public within and for the County and State aforesaid, personally came Robert A. Schultz, Vice President -- Finance and Leah Manning Stetzner, Vice President, General Counsel and Corporate 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 officers and as the free and voluntary act of said Illinois Power Company for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. -------------------------------------- Notary Public, Macon County, Illinois My Commission Expires on . ----------------- (NOTARIAL SEAL) STATE OF ILLINOIS ) SS. COUNTY OF COOK ) BE IT REMEMBERED, that on this 27th day of February, 1998, 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 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 Secretary, respectively, and as the 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. --------------------------------------- Notary Public, Cook County, Illinois My Commission Expires on May 21, 2001. (NOTARIAL SEAL) -12- 14 Return To: This Instrument Was Prepared By: ILLINOIS POWER COMPANY Schiff Hardin & Waite Real Estate Dept. F-14 7200 Sears Tower 500 S. 27th Street Chicago, IL 60606 Decatur, IL 62525 -13- EX-4.41 6 SUPP IND #1 AS OF 3/1/98 TO GENERAL MORTGAGE IND 1 EXHIBIT 4.41 ================================================================================ ILLINOIS POWER COMPANY TO HARRIS TRUST AND SAVINGS BANK, AS TRUSTEE ,____________________________ SUPPLEMENTAL INDENTURE NO. 1 DATED AS OF MARCH 1, 1998 TO GENERAL MORTGAGE INDENTURE AND DEED OF TRUST DATED AS OF NOVEMBER 1, 1992 ================================================================================ 2 SUPPLEMENTAL INDENTURE No. 1 dated as of March 1, 1998 ("Supplemental Indenture No. 1"), made by and between ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), party of the first part, and HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois (the "Trustee"), as Trustee under the General Mortgage Indenture and Deed of Trust dated as of November 1, 1992, hereinafter mentioned, party of the second part; WHEREAS, the Illinois Environmental Facilities Financing Act (20 ILCS 3515/1 et seq.), as amended and supplemented (the "Act"), authorizes and empowers the Illinois Development Finance Authority, a political subdivision and body politic and corporate, duly organized and validly existing under and by virtue of the Constitution and laws of the State of Illinois ("IDFA") to issue bonds for the refunding of any bonds deemed necessary in connection with any purpose of IDFA; and WHEREAS, pursuant to and in accordance with the provisions of the Act, a predecessor of IDFA has heretofore made a loan to the Company for the purpose of financing certain pollution control facilities of the Company; and WHEREAS, such predecessor to IDFA has financed a portion of the costs of such pollution control facilities as an authorized project under the Act by the issuance of the Illinois Industrial Pollution Control Financing Authority Pollution Control Revenue Bonds, 1977 Series A (Illinois Power Company Project) in the aggregate principal amount of $18,700,000 (all of which are currently outstanding) (the "Prior Bonds") and by loaning the proceeds therefrom to the Company; and WHEREAS, IDFA now intends to issue its Pollution Control Revenue Refunding Bonds, 1998 Series A (Illinois Power Company Project) in the aggregate principal amount of $18,700,000 (the "Series A IDFA Bonds") and to loan the proceeds therefrom to the Company pursuant to a Loan Agreement dated as of March 1, 1998 (the "Loan Agreement") to assist the Company in refunding on or about April 1, 1998 the Prior Bonds; and WHEREAS, the Series A IDFA Bonds will be issued by IDFA pursuant to an Indenture of Trust (as from time to time amended or modified, the "IDFA Series A Indenture") dated as of March 1, 1998 between IDFA and Harris Trust and Savings Bank, as Trustee under such Indenture (together with any successor in such capacity the "IDFA Indenture Trustee"); WHEREAS, the Company has heretofore executed and delivered its General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 as from time to time amended (the "Indenture"), to the Trustee, for the security of the Bonds of the Company issued and to be issued thereunder (the "Bonds"); and WHEREAS, pursuant to the terms and provisions of the Indenture there were created and authorized by supplemental indentures thereto bearing the following dates, respectively, the New Mortgage Bonds of the series issued thereunder and respectively identified opposite such dates: 3
DATE OF SUPPLEMENTAL INDENTURE IDENTIFICATION OF SERIES CALLED - ---------------------- ------------------------ ------ February 15, 1993 8% Series due 2023 Bonds of the 2023 Series March 15, 1993 6 1/8% Series due 2000 Bonds of the 2000 Series March 15, 1993 6 3/4% Series due 2005 Bonds of the 2005 Series July 15, 1993 7 1/2% Series due 2025 Bonds of the 2025 Series August 1, 1993 6 1/2% Series due 2003 Bonds of the 2003 Series October 15, 1993 5 5/8% Series due 2000 Bonds of the Second 2000 Series November 1, 1993 Pollution Control Series Bonds of the Pollution Control M Series M November 1, 1993 Pollution Control Series Bonds of the Pollution Control N Series N November 1, 1993 Pollution Control Series Bonds of the Pollution Control O Series O April 1, 1997 Pollution Control Series Bonds of the Pollution Control P Series P April 1, 1997 Pollution Control Series Bonds of the Pollution Control Q Series Q April 1, 1997 Pollution Control Series Bonds of the Pollution Control R Series R
and WHEREAS, the Company desires to create a new series of Bonds to be issued under the Indenture to be known as New Mortgage Bonds, Pollution Control Series S (the "Pollution Control Series S Bonds"); and WHEREAS, the Company, in the exercise of the powers and authority conferred upon and reserved to it under the provisions of the Indenture, and pursuant to appropriate resolutions of the Board of Directors, has duly resolved and determined to make, execute and deliver to the Trustee a Supplemental Indenture No. 1 in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture No. 1 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 SUPPLEMENTAL INDENTURE No. 1 WITNESSETH: -2- 4 THAT Illinois Power Company, in consideration of the purchase and ownership from time to time of the Bonds and the service by the Trustee, and its successors, under the Indenture and of One Dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trust under the Indenture, for the benefit of those who shall hold the Bonds as follows: ARTICLE I. DESCRIPTION OF POLLUTION CONTROL SERIES S BONDS. SECTION 1. The Company hereby creates a new series of Bonds to be known as "Pollution Control Series S Bonds." The Pollution Control Series S Bonds shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, all of the terms, conditions and covenants of the Indenture, as supplemented and modified. The Pollution Control Series S Bonds shall be issued only to the IDFA Indenture Trustee as security for the Company's obligations under the Loan Agreement relating to the Series A IDFA Bonds. The Company shall not cause any Pollution Control Series S Bonds to be paid or deemed to be paid prior to the payment of the Series A IDFA Bonds. The Pollution Control Series S Bonds shall be dated as provided in Section 3.03 of Article Three of the Indenture. The Pollution Control Series S Bonds shall mature on March 1, 2028, and shall bear interest at the rate of five and four-tenths per cent (5.40%) per annum, payable semi-annually on March 1 and September 1 of each year, commencing September 1, 1998, until the principal sum is paid in full. SECTION 2. The Pollution Control Series S Bonds and the Trustee's Certificate of Authentication shall be substantially in the following forms respectively: [FORM OF FACE OF BOND) ILLINOIS POWER COMPANY (Incorporated under the laws of the State of Illinois) NEW MORTGAGE BOND, POLLUTION CONTROL SERIES S No. ________ $18,700,000 ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to Harris Trust and Savings Bank, as Trustee (the "IDFA Indenture Trustee") under the Indenture of Trust dated as of March 1, 1998 (the "IDFA Series A Indenture"), relating to the Pollution Control Revenue Refunding Bonds, 1998 Series A (the "Series A IDFA Bonds"), between the Illinois Development Finance Authority ("IDFA") and the IDFA Indenture Trustee, or registered assigns, the principal sum of $18,700,000 on March 1, 2028, in any -3- 5 coin or currency of the United States of America which at the time of payment is legal tender for public and private debts, and to pay interest thereon in like coin or currency from March 1, 1998, payable semi-annually on March 1 and September 1 of each year, commencing September 1, 1998, at the rate of five and four-tenths per cent (5.40%) per annum, until said principal sum is paid in full. Both the principal of, and the interest on, this Bond are payable at the agency of the Company in the City of Chicago, Illinois. This Bond shall not be entitled to any benefit under the Indenture or any indenture supplemental thereto, or become valid or obligatory for any purpose, until the form of certificate endorsed hereon shall have been signed by or on behalf of Harris Trust and Savings Bank, the Trustee under the Indenture, or a successor trustee thereto under the Indenture (the "Trustee"). The provisions of this Bond are continued on the reverse hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. IN WITNESS WHEREOF, Illinois Power Company has caused this Bond to be signed (manually or by facsimile signature) in its name by an Authorized Executive Officer, as defined in the aforesaid Indenture, and its corporate seal (or a facsimile thereof) to be hereto affixed and attested (manually or by facsimile signature) by an Authorized Executive Officer, as defined in such Indenture on the date hereof. Dated __________, 1998 ILLINOIS POWER COMPANY, By . . . . . . . . . . . . . . . . . Authorized Executive Officer ATTEST: . . . . . . . . . . . . . . . . . . Authorized Executive Officer [FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION] This is one of the Bonds of the series designated therein referred to in the within-mentioned Indenture and the Supplemental Indenture No. 1 dated as of March 1, 1998. HARRIS TRUST AND SAVINGS BANK, Trustee, By . . . . . . . . . . . . . . . . . Authorized Signatory -4- 6 [FORM OF REVERSE OF BOND] This Bond is one of a duly authorized issue of Bonds of the Company (the "Bonds") in unlimited aggregate principal amount, of the series hereinafter specified, all issued and to be issued under and equally secured by the General Mortgage Indenture and Deed of Trust (the "Indenture"), dated as of November 1, 1992, executed by the Company to Harris Trust and Savings Bank (the "Trustee"), as Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of registered owners of the Bonds and of the Trustee in respect thereof, and the terms and conditions upon which the Bonds are, and are to be, secured. The Bonds may be issued in series, for various principal sums, may mature at different times, may bear interest at different rates and may otherwise vary as provided in the Indenture. This Bond is one of a series designated as the "New Mortgage Bonds, Pollution Control Series S" (the "Pollution Control Series S Bonds") of the Company, unlimited in aggregate principal amount, issued under and secured by the Indenture and described in the supplemental indenture no. 1 dated as of March 1, 1998 (the "Supplemental Indenture No. 1 of March 1, 1998"), between the Company and the Trustee, supplemental to the Indenture. This Pollution Control Series S Bond is subject to redemption in accordance with the terms of Article II of the Supplemental Indenture No. 1 of March 1, 1998. In case an Event of Default, as defined in the Indenture, shall occur, the principal of all Bonds at any such time outstanding under the Indenture may be declared or may become due and payable, upon the conditions and in the manner and with the effect provided in the Indenture. The Indenture provides that such declaration may be rescinded under certain circumstances. ARTICLE II. REDEMPTION. SECTION 1. The Pollution Control Series S Bonds shall, subject to the provisions of the Indenture, be redeemable on the same terms, on the same dates and in the same manner as the Series A IDFA Bonds shall be redeemed under the terms of the IDFA Series A Indenture. SECTION 2. The Pollution Control Series S Bonds shall be redeemed in whole whenever the Trustee receives a written notice from the IDFA Indenture Trustee stating that the principal of any bonds then outstanding under the IDFA Series A Indenture has been declared to be immediately due and payable pursuant to the provisions of Section 802 thereof. Such redemption shall be on any date not more than one (1) business day after the receipt of such notice from the trustee under the IDFA Series A Indenture. Any such redemption shall be at the redemption price of 100% of the principal amount of the Bonds to be redeemed, together with accrued interest to the date selected for redemption. A demand from the IDFA Indenture Trustee shall be executed on behalf of such IDFA Indenture Trustee by its President or a Vice President or a Trust Officer and -5- 7 shall be deemed received by the Trustee when delivered at its corporate trust office in Chicago, Illinois. The Trustee may conclusively rely as to the truth of the statements contained therein upon any such demand. SECTION 3. Subject to the provisions of the Indenture, notice of redemption of Pollution Control Series S Bonds shall be sent by the Company by certified mail, postage prepaid, not later than the date fixed for redemption to the registered owners of such Bonds at their addresses as the same shall appear, if at all, on the transfer register of the Company. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the holders receive such notice, but failure to give notice by mail, or any defect in such notice, to the holder of any such Bonds designated for redemption shall not affect the validity of the redemption of any other such Bond. ARTICLE III. ISSUE OF POLLUTION CONTROL SERIES S BONDS. SECTION 1. The Company hereby exercises the right to obtain the authentication of $18,700,000 principal amount of additional Bonds pursuant to the terms of Section 4.02 of the Indenture, all of which shall be Pollution Control Series S Bonds. SECTION 2. Such Pollution Control Series S Bonds may be authenticated and delivered prior to the filing for recordation of this Supplemental Indenture No. 1. ARTICLE IV. THE TRUSTEE. The Trustee hereby accepts the trusts hereby declared and provided, and agrees to perform the same upon the terms and conditions in the Indenture set forth and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 1 or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. In general, each and every term and condition contained in Article Eleven of the Indenture shall apply to this Supplemental Indenture No. 1 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 No. 1. -6- 8 ARTICLE V. MISCELLANEOUS PROVISIONS. This Supplemental Indenture No. 1 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. -7- 9 IN WITNESS WHEREOF, said Illinois Power Company has caused this Supplemental Indenture No. 1 to be executed on its behalf by an Authorized Executive Officer as defined in the Indenture, and its corporate seal to be hereto affixed and said seal and this Supplemental Indenture No. 1 to be attested by an Authorized Executive Officer as defined in the Indenture; and said Harris Trust and Savings Bank, in evidence of its acceptance of the trust hereby created, has caused this Supplemental Indenture No. 1 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 Supplemental Indenture No. 1 to be attested by its Secretary or one of its Assistant Secretaries; all as of the first day of March, 1998. ILLINOIS POWER COMPANY By /s/ Robert A. Schultz ------------------------------------- Robert A. Schultz Vice President -- Finance (CORPORATE SEAL) ATTEST: /s/ Leah Manning Stetzner - ------------------------------- Leah Manning Stetzner Vice President, General Counsel and Corporate Secretary HARRIS TRUST AND SAVINGS BANK, Trustee By /s/ J. Bartolini ------------------------------------- J. Bartolini Vice President (CORPORATE SEAL) ATTEST: /s/ C. Potter - ---------------------------- C. Potter Assistant Secretary -8- 10 STATE OF ILLINOIS ) SS. COUNTY OF MACON ) BE IT REMEMBERED, that on this 2nd day of March, 1998, before me, the undersigned, a Notary Public within and for the County and State aforesaid, personally came Robert A. Schultz, Vice President -- Finance and Leah Manning Stetzner, Vice President, General Counsel and Corporate 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 officers and as the free and voluntary act of said Illinois Power Company for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. ____________________________________________ Notary Public, Macon County, Illinois My Commission Expires on ___________________. (NOTARIAL SEAL) STATE OF ILLINOIS ) SS. COUNTY OF COOK ) BE IT REMEMBERED, that on 27th day of February, 1998, 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 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, and as the 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. ____________________________________________ Notary Public, Cook County, Illinois My Commission Expires on May 21, 2001. (NOTARIAL SEAL) -9- 11 Return To: This Instrument Was Prepared By: ILLINOIS POWER COMPANY Schiff Hardin & Waite Real Estate Dept. F-14 7200 Sears Tower 500 S. 27th Street Chicago, IL 60606 Decatur, IL 62525 -10- EX-4.42 7 SUPP INDENT #2 DATED AS OF 3/1/98 TO GENERAL MORT 1 EXHIBIT 4.42 ================================================================================ ILLINOIS POWER COMPANY TO HARRIS TRUST AND SAVINGS BANK, AS TRUSTEE ------------- SUPPLEMENTAL INDENTURE NO. 2 DATED AS OF MARCH 1, 1998 TO GENERAL MORTGAGE INDENTURE AND DEED OF TRUST DATED AS OF NOVEMBER 1, 1992 ================================================================================ 2 SUPPLEMENTAL INDENTURE No. 2 dated as of March 1, 1998 ("Supplemental Indenture No. 2"), made by and between ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), party of the first part, and HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois (the "Trustee"), as Trustee under the General Mortgage Indenture and Deed of Trust dated as of November 1, 1992, hereinafter mentioned, party of the second part; WHEREAS, the Illinois Environmental Facilities Financing Act (20 ILCS 3515/1 et seq.), as amended and supplemented (the "Act"), authorizes and empowers the Illinois Development Finance Authority, a political subdivision and body politic and corporate, duly organized and validly existing under and by virtue of the Constitution and laws of the State of Illinois ("IDFA") to issue bonds for the refunding of any bonds deemed necessary in connection with any purpose of IDFA; and WHEREAS, pursuant to and in accordance with the provisions of the Act, IDFA has heretofore made a loan to the Company for the purpose of financing certain pollution control facilities of the Company; and WHEREAS, IDFA has financed a portion of the costs of such pollution control facilities as an authorized project under the Act by the issuance of the Illinois Industrial Pollution Control Financing Authority Pollution Control Revenue Bonds, 1987 Series A (Illinois Power Company Project) in the aggregate principal amount of $33,755,000 (all of which are currently outstanding) (the "Prior Bonds") and by loaning the proceeds therefrom to the Company; and WHEREAS, IDFA now intends to issue its Pollution Control Revenue Refunding Bonds, 1998 Series B (Illinois Power Company Project) in the aggregate principal amount of $33,755,000 (the "Series B IDFA Bonds") and to loan the proceeds therefrom to the Company pursuant to a Loan Agreement dated as of March 1, 1998 (the "Loan Agreement") to assist the Company in refunding on or about April 1, 1998 the Prior Bonds; and WHEREAS, the Series B IDFA Bonds will be issued by IDFA pursuant to an Indenture of Trust (as from time to time amended or modified, the "IDFA Series B Indenture") dated as of March 1, 1998 between IDFA and Harris Trust and Savings Bank, as Trustee under such Indenture (together with any successor in such capacity the "IDFA Indenture Trustee"); WHEREAS, the Company has heretofore executed and delivered its General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 as from time to time amended (the "Indenture"), to the Trustee, for the security of the Bonds of the Company issued and to be issued thereunder (the "Bonds"); and WHEREAS, pursuant to the terms and provisions of the Indenture there were created and authorized by supplemental indentures thereto bearing the following dates, respectively, the New Mortgage Bonds of the series issued thereunder and respectively identified opposite such dates: 3
SUPPLEMENTAL INDENTURE IDENTIFICATION OF SERIES CALLED ---------------------- ------------------------ ------ February 15, 1993 8% Series due 2023 Bonds of the 2023 Series March 15, 1993 6 1/8% Series due 2000 Bonds of the 2000 Series March 15, 1993 6 3/4% Series due 2005 Bonds of the 2005 Series July 15, 1993 7 1/2% Series due 2025 Bonds of the 2025 Series August 1, 1993 6 1/2% Series due 2003 Bonds of the 2003 Series October 15, 1993 5 5/8% Series due 2000 Bonds of the Second 2000 Series November 1, 1993 Pollution Control Series Bonds of the Pollution M Control Series M November 1, 1993 Pollution Control Series Bonds of the Pollution N Control Series N November 1, 1993 Pollution Control Series Bonds of the Pollution O Control Series O April 1, 1997 Pollution Control Series Bonds of the Pollution P Control Series P April 1, 1997 Pollution Control Series Bonds of the Pollution Q Control Series Q April 1, 1997 Pollution Control Series Bonds of the Pollution R Control Series R
and WHEREAS, the Company desires to create a new series of Bonds to be issued under the Indenture to be known as New Mortgage Bonds, Pollution Control Series T (the "Pollution Control Series T Bonds"); and WHEREAS, the Company, in the exercise of the powers and authority conferred upon and reserved to it under the provisions of the Indenture, and pursuant to appropriate resolutions of the Board of Directors, has duly resolved and determined to make, execute and deliver to the Trustee a Supplemental Indenture No. 2 in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture No. 2 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 SUPPLEMENTAL INDENTURE No. 2 WITNESSETH: -2- 4 THAT Illinois Power Company, in consideration of the purchase and ownership from time to time of the Bonds and the service by the Trustee, and its successors, under the Indenture and of One Dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trust under the Indenture, for the benefit of those who shall hold the Bonds as follows: ARTICLE I. DESCRIPTION OF POLLUTION CONTROL SERIES T BONDS. SECTION 1. The Company hereby creates a new series of Bonds to be known as "Pollution Control Series T Bonds." The Pollution Control Series T Bonds shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, all of the terms, conditions and covenants of the Indenture, as supplemented and modified. The Pollution Control Series T Bonds shall be issued only to the IDFA Indenture Trustee as security for the Company's obligations under the Loan Agreement relating to the Series B IDFA Bonds. The Company shall not cause any Pollution Control Series T Bonds to be paid or deemed to be paid prior to the payment of the Series B IDFA Bonds. The Pollution Control Series T Bonds shall be dated as provided in Section 3.03 of Article Three of the Indenture. The Pollution Control Series T Bonds shall mature on March 1, 2028, and shall bear interest at the rate of five and four-tenths per cent (5.40%) per annum, payable semi-annually on March 1 and September 1 of each year, commencing September 1, 1998, until the principal sum is paid in full. SECTION 2. The Pollution Control Series T Bonds and the Trustee's Certificate of Authentication shall be substantially in the following forms respectively: [FORM OF FACE OF BOND) ILLINOIS POWER COMPANY (Incorporated under the laws of the State of Illinois) NEW MORTGAGE BOND, POLLUTION CONTROL SERIES T No. ________ $33,755,000 ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to Harris Trust and Savings Bank, as Trustee (the "IDFA Indenture Trustee") under the Indenture of Trust dated as of March 1, 1998 (the "IDFA Series B Indenture"), relating to the Pollution Control Revenue Refunding Bonds, 1998 Series B (the "Series B IDFA Bonds"), between the Illinois Development Finance Authority ("IDFA") and the IDFA Indenture Trustee, or registered assigns, the principal sum of $33,755,000 on March 1, 2028, in any -3- 5 coin or currency of the United States of America which at the time of payment is legal tender for public and private debts, and to pay interest thereon in like coin or currency from March 1, 1998, payable semi-annually on March 1 and September 1 of each year, commencing September 1, 1998, at the rate of five and four-tenths per cent (5.40%) per annum, until said principal sum is paid in full. Both the principal of, and the interest on, this Bond are payable at the agency of the Company in the City of Chicago, Illinois. This Bond shall not be entitled to any benefit under the Indenture or any indenture supplemental thereto, or become valid or obligatory for any purpose, until the form of certificate endorsed hereon shall have been signed by or on behalf of Harris Trust and Savings Bank, the Trustee under the Indenture, or a successor trustee thereto under the Indenture (the "Trustee"). The provisions of this Bond are continued on the reverse hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. IN WITNESS WHEREOF, Illinois Power Company has caused this Bond to be signed (manually or by facsimile signature) in its name by an Authorized Executive Officer, as defined in the aforesaid Indenture, and its corporate seal (or a facsimile thereof) to be hereto affixed and attested (manually or by facsimile signature) by an Authorized Executive Officer, as defined in such Indenture on the date hereof. Dated __________, 1998 ILLINOIS POWER COMPANY, By . . . . . . . . . . . . . . . . . Authorized Executive Officer ATTEST: . . . . . . . . . . . . . . . . . . Authorized Executive Officer [FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION] This is one of the Bonds of the series designated therein referred to in the within-mentioned Indenture and the Supplemental Indenture No. 2 dated as of March 1, 1998. HARRIS TRUST AND SAVINGS BANK, Trustee, By . . . . . . . . . . . . . . . . . Authorized Signatory -4- 6 [FORM OF REVERSE OF BOND] This Bond is one of a duly authorized issue of Bonds of the Company (the "Bonds") in unlimited aggregate principal amount, of the series hereinafter specified, all issued and to be issued under and equally secured by the General Mortgage Indenture and Deed of Trust (the "Indenture"), dated as of November 1, 1992, executed by the Company to Harris Trust and Savings Bank (the "Trustee"), as Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of registered owners of the Bonds and of the Trustee in respect thereof, and the terms and conditions upon which the Bonds are, and are to be, secured. The Bonds may be issued in series, for various principal sums, may mature at different times, may bear interest at different rates and may otherwise vary as provided in the Indenture. This Bond is one of a series designated as the "New Mortgage Bonds, Pollution Control Series T" (the "Pollution Control Series T Bonds") of the Company, unlimited in aggregate principal amount, issued under and secured by the Indenture and described in the supplemental indenture No. 2 dated as of March 1, 1998 (the "Supplemental Indenture No. 2 of March 1, 1998"), between the Company and the Trustee, supplemental to the Indenture. This Pollution Control Series T Bond is subject to redemption in accordance with the terms of Article II of the Supplemental Indenture No. 2 of March 1, 1998. In case an Event of Default, as defined in the Indenture, shall occur, the principal of all Bonds at any such time outstanding under the Indenture may be declared or may become due and payable, upon the conditions and in the manner and with the effect provided in the Indenture. The Indenture provides that such declaration may be rescinded under certain circumstances. ARTICLE II. REDEMPTION. SECTION 1. The Pollution Control Series T Bonds shall, subject to the provisions of the Indenture, be redeemable on the same terms, on the same dates and in the same manner as the Series B IDFA Bonds shall be redeemed under the terms of the IDFA Series B Indenture. SECTION 2. The Pollution Control Series T Bonds shall be redeemed in whole whenever the Trustee receives a written notice from the IDFA Indenture Trustee stating that the principal of any bonds then outstanding under the IDFA Series B Indenture has been declared to be immediately due and payable pursuant to the provisions of Section 802 thereof. Such redemption shall be on any date not more than one (1) business day after the receipt of such notice from the trustee under the IDFA Series B Indenture. Any such redemption shall be at the redemption price of 100% of the principal amount of the Bonds to be redeemed, together with accrued interest to the date selected for redemption. A demand from the IDFA Indenture Trustee shall be executed on behalf of such IDFA Indenture Trustee by its President or a Vice President or a Trust Officer and shall be deemed received -5- 7 by the Trustee when delivered at its corporate trust office in Chicago, Illinois. The Trustee may conclusively rely as to the truth of the statements contained therein upon any such demand. SECTION 3. Subject to the provisions of the Indenture, notice of redemption of Pollution Control Series T Bonds shall be sent by the Company by certified mail, postage prepaid, not later than the date fixed for redemption to the registered owners of such Bonds at their addresses as the same shall appear, if at all, on the transfer register of the Company. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the holders receive such notice, but failure to give notice by mail, or any defect in such notice, to the holder of any such Bonds designated for redemption shall not affect the validity of the redemption of any other such Bond. ARTICLE III. ISSUE OF POLLUTION CONTROL SERIES T BONDS. SECTION 1. The Company hereby exercises the right to obtain the authentication of $33,755,000 principal amount of additional Bonds pursuant to the terms of Section 4.02 of the Indenture, all of which shall be Pollution Control Series T Bonds. SECTION 2. Such Pollution Control Series T Bonds may be authenticated and delivered prior to the filing for recordation of this Supplemental Indenture No. 2. ARTICLE IV. THE TRUSTEE. The Trustee hereby accepts the trusts hereby declared and provided, and agrees to perform the same upon the terms and conditions in the Indenture set forth and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 2 or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. In general, each and every term and condition contained in Article Eleven of the Indenture shall apply to this Supplemental Indenture No. 2 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 No. 2. -6- 8 ARTICLE V. MISCELLANEOUS PROVISIONS. This Supplemental Indenture No. 2 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. -7- 9 IN WITNESS WHEREOF, said Illinois Power Company has caused this Supplemental Indenture No. 2 to be executed on its behalf by an Authorized Executive Officer as defined in the Indenture, and its corporate seal to be hereto affixed and said seal and this Supplemental Indenture No. 2 to be attested by an Authorized Executive Officer as defined in the Indenture; and said Harris Trust and Savings Bank, in evidence of its acceptance of the trust hereby created, has caused this Supplemental Indenture No. 2 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 Supplemental Indenture No. 2 to be attested by its Secretary or one of its Assistant Secretaries; all as of the first day of March, 1998. ILLINOIS POWER COMPANY By /s/ Robert A. Schultz ------------------------------------------ Robert A. Schultz Vice President -- Finance (CORPORATE SEAL) ATTEST: /s/ Leah Manning Stetzner - ------------------------------- Leah Manning Stetzner Vice President, General Counsel and Corporate Secretary HARRIS TRUST AND SAVINGS BANK, Trustee By /s/ J. Bartolini ------------------------------------------ J. Bartolini Vice President (CORPORATE SEAL) ATTEST: /s/ C. Potter - ------------------------------- C. Potter Assistant Secretary -8- 10 STATE OF ILLINOIS) SS. COUNTY OF MACON ) BE IT REMEMBERED, that on this 2nd day of March, 1998, before me, the undersigned, a Notary Public within and for the County and State aforesaid, personally came Robert A. Schultz, Vice President -- Finance and Leah Manning Stetzner, Vice President, General Counsel and Corporate 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 officers and as the free and voluntary act of said Illinois Power Company for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. -------------------------------------- Notary Public, Macon County, Illinois My Commission Expires on . ----------------- (NOTARIAL SEAL) STATE OF ILLINOIS ) SS. COUNTY OF COOK ) BE IT REMEMBERED, that on 27th day of February, 1998, 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 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, and as the 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. ---------------------------------------- Notary Public, Cook County, Illinois My Commission Expires on May 21, 2001. (NOTARIAL SEAL) -9- 11 Return To: This Instrument Was Prepared By: ILLINOIS POWER COMPANY Schiff Hardin & Waite Real Estate Dept. F-14 7200 Sears Tower 500 S. 27th Street Chicago, IL 60606 Decatur, IL 62525 -10- EX-4.43 8 SUPP INDENT DATED 7/1/5/98 TO MORT & DEED OF TRUST 1 EXHIBIT 4.43 ================================================================================ ILLINOIS POWER COMPANY TO HARRIS TRUST AND SAVINGS BANK, AS TRUSTEE ------------- SUPPLEMENTAL INDENTURE DATED AS OF JULY 15, 1998 TO MORTGAGE AND DEED OF TRUST DATED NOVEMBER 1, 1943 ================================================================================ 2 SUPPLEMENTAL INDENTURE dated as of July 15, 1998 (the "Supplemental Indenture"), made by and between ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), party of the first part, and 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, hereinafter mentioned, party of the second part; WHEREAS, the Company has heretofore executed and delivered its Mortgage and Deed of Trust dated November 1, 1943 ("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, pursuant to the terms and provisions of the Original Indenture there were created and authorized by Supplemental Indentures thereto bearing the following dates, respectively, the First Mortgage Bonds of the series issued thereunder and respectively identified opposite such dates:
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED -------------------- -------------- ------ November 1, 1943 4% Series due 1973 Bonds of the 1973 Series (redeemed) March 1, 1946 2 7/8% Series due 1976 Bonds of the 1976 Series (paid at maturity) February 1, 1948 3 1/2% Series due 1978 Bonds of the 1978 SeriEs (paid at maturity) July 1, 1949 2 7/8 % Series due 1979 Bonds of the 1979 Series (paid at maturity) April 1, 1950 2 3/4% Series due 1980 Bonds of the 1980 SeriEs (paid at maturity) March 1, 1952 3 1/2% Series due 1982 Bonds of the 1982 SeriEs (paid at maturity) November 1, 1953 3 1/2% Series due 1983 Bonds of the 1983 SeriEs (paid at maturity) July 1, 1956 3 3/4% Series due 1986 Bonds of the 1986 SeriEs (paid at maturity) May 1, 1958 4% Series due 1988 Bonds of the 1988 Series (redeemed) January 1, 1963 4 1/4% Series due 1993 Bonds of the 1993 SeriEs (paid at maturity) October 1, 1966 5.85% Series due 1996 Bonds of the 1996 Series (paid at maturity)
-1- 3
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED -------------------- -------------- ------ January 1, 1968 6 3/8% Series due 1998 Bonds of the First 1998 Series (redeemed) October 1, 1968 6 3/4% Series due October 1, Bonds of the Second 1998 Series 1998 (redeemed) October 1, 1969 8.35% Series due 1999 Bonds of the First 1999 Series (redeemed) November 1, 1970 9% Series due 2000 Bonds of the 2000 Series (redeemed) October 1, 1971 7.60% Series due 2001 Bonds of the 2001 Series (redeemed) June 1, 1973 7 5/8% Series due 2003 Bonds of the First 2003 Series (redeemed) May 1, 1974 Pollution Control Series A Bonds of the Pollution Control Series A September 1, 1974 10 1/2% Series due 2004 Bonds of the First 2004 Series (redeemed) July 1, 1976 8 3/4% Series due 2006 Bonds of the 2006 Series (redeemed) May 1, 1977 Pollution Control Series B Bonds of Pollution Control (redeemed) Series B November 1, 1977 8 1/4% Series due 2007 Bonds of the 2007 Series (redeemed) August 1, 1978 8 7/8% Series due 2008 Bonds of the 2008 Series (redeemed) July 1, 1979 9 7/8% Series due July 1, Bonds of the Second 2004 Series 2004 (redeemed) July 31, 1980 11 3/8% Series due 1987 Bonds of the 1987 Series (redeemed) August 1, 1980 12 5/8% Series due 2010 Bonds of the 2010 Series (redeemed) July 1, 1982 14 1/2% Series due 1990 Bonds of the 1990 Series (redeemed)
-2- 4
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED -------------------- -------------- ------ November 1, 1982 12% Series due 2012 Bonds of the 2012 Series (redeemed) December 15, 1983 Pollution Control Series C Bonds of the Pollution Control (redeemed) Series C May 15, 1984 Pollution Control Series D Bonds of the Pollution Control (redeemed) Series D March 1, 1985 Pollution Control Series E Bonds of the Pollution Control (redeemed) Series E February 1, 1986 10 1/2% Series due 2016 Bonds of the First 2016 Series (redeemed) July 1, 1986 9 7/8% Series due 2016 Bonds of the Second 2016 Series (redeemed) September 1, 1986 9 3/8% Series due 2016 Bonds of the Third 2016 Series (redeemed) February 1, 1987 Pollution Control Series F Bonds of the Pollution Control (redeemed) Series F February 1, 1987 Pollution Control Series G Bonds of the Pollution Control (redeemed) Series G February 1, 1987 Pollution Control Series H Bonds of the Pollution Control (redeemed) Series H July 1, 1987 Pollution Control Series I Bonds of the Pollution Control (redeemed) Series I July 1, 1988 10% Series due 1998 Bonds of the Third 1998 Series (redeemed) July 1, 1991 Pollution Control Series J Bonds of the Pollution Control Series J June 1, 1992 Pollution Control Series K Bonds of the Pollution Control Series K June 1, 1992 Pollution Control Series L Bonds of the Pollution Control Series L July 1, 1992 7.95% Series due 2004 Bonds of the Third 2004 Series July 1, 1992 8 3/4% Series due 2021 Bonds of the 2021 Series September 1, 1992 6 1/2% Series due 1999 Bonds of the 1999 Series
-3- 5
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED -------------------- -------------- ------ February 15, 1993 8% Series due 2023 Bonds of the 2023 Series March 15, 1993 6 1/8% Series due 2000 Bonds of the 2000 Series March 15, 1993 6 3/4% Series due 2005 Bonds of the 2005 Series July 15, 1993 7 1/2% Series due 2025 Bonds of the 2025 Series Series M August 1, 1993 6 1/2% Series due 2003 Bonds of the Second 2003 Series October 15, 1993 5 5/8% Series due 2000 Bonds of the Second 2003 Series November 1, 1993 Pollution Control Series M Bonds of the Second 2003 Series November 1, 1993 Pollution Control Series N Bonds of the Pollution Control Series N November 1, 1993 Pollution Control Series O Bonds of the Pollution Control Series O April 1, 1997 Pollution Control Series P Bonds of the Pollution Control Series P April 1, 1997 Pollution Control Series Q Bonds of the Pollution Control Series Q April 1, 1997 Pollution Control Series R Bonds of the Pollution Control Series R March 1, 1998 Pollution Control Series S Bonds of the Pollution Control Series S March 1, 1998 Pollution Control Series T Bonds of the Pollution Control Series T
and WHEREAS, the Company desires to create a new series of Bonds to be issued under the Original Indenture, to be known as First Mortgage Bonds, 6 1/4% Series due 2002 (the "Bonds of the 2002 Series") and to issue additional Bonds under the Original Indenture; and WHEREAS, the Bonds of the 2002 Series are to be issued to Harris Trust and Savings Bank, as trustee (the "New Mortgage Trustee") under the Company's General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (the "New Mortgage") and are to be owned and held -4- 6 by the New Mortgage Trustee as "Pledged Bonds" (as defined in the New Mortgage) in accordance with the terms of the New Mortgage; 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 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 SUPPLEMENTAL 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 the New Trustee and any successor holder of the Bonds as follows: ARTICLE I. DESCRIPTION OF BONDS OF THE 2002 SERIES. SECTION 1. The Company hereby creates a new series of Bonds to be known as "The First Mortgage Bonds, 6 1/4% Series due 2002" (the "Bonds of the 2002 Series"). The Bonds of the 2002 Series shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, all of the terms, conditions and covenants of the Original Indenture, as supplemented and modified. The Bonds of the 2002 Series will be issued only to the New Mortgage Trustee as security for a series of bonds being issued under the Company's New Mortgage and the supplemental indenture to the New Mortgage dated as of July 15, 1998 (the "New Mortgage Bonds of the 2002 Series"). The Bonds of the 2002 Series shall be dated as provided in Section 6 of Article II of the Original Indenture and for the purposes of said Section 6 the commencement of the first interest period shall be July 21, 1998. All Bonds of the 2002 Series shall mature on July 15, 2002, and shall bear interest at the rate of SIX AND ONE-QUARTER per cent (6 1/4%) per annum, payable semi-annually on July 15 and January 15 of each year, commencing January 15, 1999, until the principal sum is paid in full. Any payment by the Company of principal of, or interest on, any Bonds of the 2002 Series shall be applied by the New Mortgage Trustee to the payment of any principal or interest, as the case may be, in respect of the New Mortgage Bonds of the 2002 Series due in accordance with the terms of the New Mortgage. SECTION 2. The Bonds of the 2002 Series and the Trustee's Certificate shall be substantially in the following forms respectively: -5- 7 [FORM OF FACE OF BOND] ILLINOIS POWER COMPANY (Incorporated under the laws of the State of Illinois) FIRST MORTGAGE BOND, 6 1/4% SERIES DUE 2002 No. ............. $100,000,000 ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company," which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to Harris Trust and Savings Bank as trustee (the "New Mortgage Trustee") under the Company's General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (the "New Mortgage") or its registered assigns, the principal sum of One Hundred Million Dollars ($100,000,000) on July 15, 2002, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts, and to pay interest thereon in like coin or currency from July 21, 1998, payable semi-annually on July 15 and January 15 in each year, commencing January 15, 1999, at the rate of SIX AND ONE-QUARTER percent (6 1/4%) per annum, until the Company's obligation with respect to the payment of such principal shall be discharged as provided in the Indenture. Both the principal of, and the interest on, this Bond are payable at the agency of the Company in the City of Chicago, Illinois. This First Mortgage Bond shall not be entitled to any benefit under the Indenture or any indenture supplemental thereto, or become valid or obligatory for any purpose, until the form of certificate endorsed hereon shall have been signed by or on behalf of Harris Trust and Savings Bank, the Trustee under the Indenture, or a successor trustee thereto under the Indenture (the "Trustee"). The provisions of this First Mortgage Bond are continued on the reverse hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. IN WITNESS WHEREOF, Illinois Power Company has caused this First Mortgage Bond to be signed (manually or by facsimile signature) in its name by its President or a Vice President, and its corporate seal (or a facsimile thereof) to be hereto affixed and attested (manually or by facsimile signature) by its Secretary or an Assistant Secretary. Dated . . . . . . . . . . . . . ILLINOIS POWER COMPANY, By . . . . . . . . . . . Vice President ATTEST: . . . . . . . . . . . . . . . . . . . . Assistant Secretary -6- 8 [FORM OF TRUSTEE'S CERTIFICATE] This First Mortgage Bond is one of the Bonds of the series designated therein, described in the within-mentioned Indenture and the Supplemental Indenture dated as of July 15, 1998. HARRIS TRUST AND SAVINGS BANK, Trustee, By . . . . . . . . . . . . . . Authorized Officer [FORM OF REVERSE OF BOND) This First Mortgage Bond is one of a duly authorized issue of Bonds of the Company (the "Bonds") in unlimited aggregate principal amount, of the series hereinafter specified, all issued and to be issued under and equally secured by the Mortgage and Deed of Trust (the "Indenture"), dated November 1, 1943, executed by the Company to Harris Trust and Savings Bank (the "Trustee"), as Trustee, to which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated February 15, 1993, which amended Section 1 of Article IX of the Indenture, reference is hereby made for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of the registered owners of the Bonds and of the Trustee in respect thereof, and the terms and conditions upon which the Bonds are, and are to be, secured. The Bonds may be issued in series, for various principal sums, may mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided. This First Mortgage Bond is one of a series designated as the First Mortgage Bonds, 6 1/4% Series Due 2002 (the "Bonds of the 2002 Series") of the Company, unlimited in aggregate principal amount, issued under and secured by the Indenture and described in the supplemental indenture dated as of July 15, 1998 (the "Supplemental Indenture of July 15, 1998"), between the Company and the Trustee, supplemental to the Indenture. To the extent permitted by, and as provided in, the Indenture, modifications or alterations of the Indenture, or of any indenture supplemental thereto, and of the rights and obligations of the Company and of the holders of the Bonds and coupons may be made with the consent of the Company by an affirmative vote of the holders of not less than 662/3% in amount of the Bonds entitled to vote then outstanding, at a meeting of Bondholders called and held as provided in the Indenture, and by an affirmative vote of the holders of not less than 662/3% in amount of the Bonds of any series entitled to vote then outstanding and affected by such modification or alteration, in case one or more but less than all of the series of Bonds then outstanding under the Indenture are so affected; provided however, that no such modification or alteration shall be made which will affect the terms of payment of the principal of, or interest or premium, if any, on this First Mortgage Bond. -7- 9 In case an Event of Default, as defined in the Indenture, shall occur, the principal of all the Bonds at any such time outstanding under the Indenture may be declared or may become due and payable, upon the conditions and in the manner and with the effect provided in the Indenture. The Indenture provides that such declaration may in certain events be rescinded by the holders of a majority in principal amount of the Bonds outstanding. No recourse shall be had for the payment of the principal of, or premium or interest on this First Mortgage Bond, or for any claim based hereon or on the Indenture or any indenture supplemental thereto, against any incorporator, or against any stockholder, director or officer, as such, past, present or future, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability, whether at common law, in equity, by any constitution, statute, rule of law, or otherwise, of incorporators, stockholders, directors or officers being released by every owner hereof by the acceptance of this First Mortgage Bond and as part of the consideration for the issue hereof, and being likewise released by the terms of the Indenture; provided, however, that nothing herein or in the Indenture or any indenture supplemental thereto contained shall prevent the enforcement of the liability, if any, of any stockholder or subscriber to capital stock upon or in respect of shares of capital stock not fully paid up. Notwithstanding any provision in the Indenture, the Supplemental Indenture of July 15, 1998 or this First Mortgage Bond to the contrary, any payment by the Company under the New Mortgage of principal of, or interest on, bonds which shall have been authenticated and delivered under the New Mortgage (the "New Mortgage Bonds of the 2002 Series") upon the basis of the issuance and delivery to the New Mortgage Trustee of the Bonds of the 2002 Series shall, to the extent thereof, be deemed to satisfy and discharge the obligation of the Company to make a payment of principal or interest, as the case may be, in respect of this First Mortgage Bond which is then due. This First Mortgage Bond constitutes a "Pledged Bond" (as defined in the New Mortgage) and is subject to all of the rights and restrictions applicable to Pledged Bonds as set forth in the New Mortgage. Without limiting the generality of the foregoing, this First Mortgage Bond shall be subject to surrender by the New Mortgage Trustee in accordance with the provisions of Section 7.03 of the New Mortgage. To the extent that any provisions in the Indenture, the Supplemental Indenture of July 15, 1998 or this First Mortgage Bond are inconsistent with the provisions relating to Pledged Bonds that are set forth in the New Mortgage, the provisions of the New Mortgage shall apply. SECTION 3. Notwithstanding any provision in the Original Indenture, this Supplemental Indenture, or the Bonds of the 2002 Series to the contrary, any payment by the Company under the New Mortgage of principal of, or interest on, bonds which shall have been authenticated and delivered under the New Mortgage (the "New Mortgage Bonds of the 2002 Series") upon the basis of the issuance and delivery to the New Mortgage Trustee of the Bonds of the 2002 Series shall, to the extent thereof, be deemed to satisfy and discharge the obligation of the Company to make any -8- 10 payment of principal or interest, as the case may be, in respect of the Bonds of the 2002 Series which is then due. SECTION 4. The Bonds of the 2002 Series constitute "Pledged Bonds" (as defined in the New Mortgage) and are subject to all of the rights and restrictions applicable to Pledged Bonds as set forth in the New Mortgage. Without limiting the generality of the foregoing, the Bonds of the 2002 Series shall be subject to surrender by the New Mortgage Trustee in accordance with the provisions of Section 7.03 of the New Mortgage. To the extent that any provisions in the Original Indenture, this Supplemental Indenture or the Bonds of the 2002 Series are inconsistent with the provisions relating to Pledged Bonds that are set forth in the New Mortgage, the provisions of the New Mortgage shall apply. ARTICLE II. ISSUE OF BONDS OF THE 2002 SERIES. SECTION 1. The Company hereby exercises the right to obtain the authentication of $100,000,000 principal amount of additional Bonds pursuant to the terms of Section 4 of Article III of the Original Indenture on the basis of 75% of the net bondable value of property additions not subject to an unfunded prior lien. All such additional Bonds shall be Bonds of the 2002 Series. SECTION 2. Such Bonds of the 2002 Series may be authenticated and delivered prior to the filing for recordation of this Supplemental Indenture. SECTION 3. Notwithstanding any provision in the Original Indenture to the contrary, execution of the Bonds of the 2002 Series on behalf of the Company, and the attesting of the corporate seal of the Company affixed to the Bonds of the 2002 Series by the officers of the Company authorized to do such acts by Section 12 of Article II of the Original Indenture may be validly done either by the manual or the facsimile signatures of such authorized officers of the Company. ARTICLE III. REDEMPTION. The Bonds of the 2002 Series shall not be redeemable prior to maturity. -9- 11 ARTICLE IV. THE TRUSTEE. The Trustee hereby accepts the trusts hereby declared and provided, and agrees to perform the same upon the terms and conditions in the 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 V. MISCELLANEOUS PROVISIONS. This Supplemental Indenture may be simultaneously executed in any number of counterparts, each of which when so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. -10- 12 IN WITNESS WHEREOF, Illinois Power Company has caused this Supplemental 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 Supplemental 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 Supplemental 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 Supplemental Indenture to be attested by its Secretary or one of its Assistant Secretaries; all as of the fifteenth day of July, 1998. ILLINOIS POWER COMPANY By /s/ ROBERT A. SCHULTZ --------------------------------- Robert A. Schultz Vice President - Finance (CORPORATE SEAL) ATTEST: /s/ ELIZABETH A. O'DONNELL - -------------------------------------- Elizabeth A. O'Donnell Assistant Secretary HARRIS TRUST AND SAVINGS BANK, Trustee By /s/ J. BARTOLINI ------------------------------------ J. Bartolini Vice President (CORPORATE SEAL) ATTEST: /s/ C. POTTER - ------------------------------------- C. Potter Assistant Secretary -11- 13 STATE OF ILLINOIS ) ) SS.: COUNTY OF MACON ) BE IT REMEMBERED, that on this 11th day of June, 1998, before me, the undersigned, a Notary Public within and for the County and State aforesaid, personally came Robert A. Schultz, Vice President - Finance and Elizabeth A. O'Donnell, Assistant 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 officers and as the free and voluntary act of said Illinois Power Company for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. ------------------------------------- Notary Public, Macon County, Illinois My Commission Expires on _________________. (NOTARIAL SEAL) STATE OF ILLINOIS ) ) SS.: COUNTY OF COOK ) BE IT REMEMBERED, that on this 12th day of June, 1998, 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 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 Secretary, respectively, and as the 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. ------------------------------------ Notary Public, Cook County, Illinois My Commission Expires on May 21, 2001. (NOTARIAL SEAL) -12- 14 Return To: This Instrument Was Prepared By: ILLINOIS POWER COMPANY SCHIFF HARDIN & WAITE Real Estate Dept. F-14 6600 Sears Tower 500 S. 27th Street 233 South Wacker Drive Decatur, IL 62525 Chicago, IL 60606 -13- EX-4.44 9 SUPP INDENT DATED 7/15/98 TO GENERAL MORT INDENT 1 EXHIBIT 4.44 ================================================================================ ILLINOIS POWER COMPANY TO HARRIS TRUST AND SAVINGS BANK, AS TRUSTEE ------------------ SUPPLEMENTAL INDENTURE DATED AS OF JULY 15, 1998 TO GENERAL MORTGAGE INDENTURE AND DEED OF TRUST DATED AS OF NOVEMBER 1, 1992 ================================================================================ 2 SUPPLEMENTAL INDENTURE dated as of July 15, 1998 (the "Supplemental Indenture"), made by and between ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), party of the first part, and HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois (the "Trustee"), as Trustee under the General Mortgage indenture and Deed of Trust dated as of November 1, 1992, hereinafter mentioned, party of the second part; WHEREAS, the Company has heretofore executed and delivered its General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (the "Indenture"), to the Trustee, for the security of the Bonds of the Company issued and to be issued thereunder (the "Bonds"); and WHEREAS, pursuant to the terms and provisions of the Indenture there were created and authorized by Supplemental Indentures thereto bearing the following dates, respectively, the New Mortgage Bonds of the series issued thereunder and respectively identified opposite such dates:
DATE OF SUPPLEMENTAL Identification INDENTURE of Series Called ----------- ----------- ------ February 15, 1993 8% Series due 2023 Bonds of the 2023 Series March 15, 1993 6 1/2% Series due 2000 Bonds of the 2000 Series March 15, 1993 6 3/4% Series due 2005 Bonds of the 2005 Series July 15, 1993 7 1/2% Series due 2025 Bonds of the 2025 Series August 1, 1993 6 1/2% Series due 2003 Bonds of the 2003 Series October 15, 1993 5 5/8% Series due 2000 Bonds of the Second 2000 Series November 1, 1993 Pollution Control Series M Bonds of the Pollution Control Series M November 1, 1993 Pollution Control Series N Bonds of the Pollution Control Series N November 1, 1993 Pollution Control Series O Bonds of the Pollution Control Series O April 1, 1997 Pollution Control Series P Bonds of the Pollution Control Series P April 1, 1997 Pollution Control Series Q Bonds of the Pollution Control Series Q April 1, 1997 Pollution Control Series R Bonds of the Pollution Control Series R March 1, 1998 Pollution Control Series S Bonds of the Pollution Control Series S March 1, 1998 Pollution Control Series T Bonds of the Pollution Control Series T
WHEREAS, the Company desires to create a new series of Bonds to be issued under the Indenture, to be known as New Mortgage Bonds, 6 1/4% Series due 2002 (the "New Mortgage Bonds of the 2002 Series"); and WHEREAS, the Company, in the exercise of the powers and authority conferred upon and reserved to it under the provisions of the indenture, and pursuant to appropriate resolutions of the Board of Directors, has duly resolved and determined to make, execute and deliver to the Trustee a Supplemental Indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument have been done, performed and fulfilled and the execution and delivery hereof have been in all respects duly authorized; NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: THAT Illinois Power Company, in consideration of the purchase and ownership from time to time of the Bonds and the service by the Trustee, and its successors, under the Indenture and of One Dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee 2 3 and its successors in the trust under the Indenture, for the benefit of those who shall hold the Bonds as follows: ARTICLE I. DESCRIPTION OF NEW MORTGAGE BONDS OF THE 2002 SERIES. SECTION 1. The Company hereby creates a new series of Bonds to be known as the "New Mortgage Bonds of the 2002 Series." The New Mortgage Bonds of the 2002 Series shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, all of the terms, conditions and covenants of the Indenture, as supplemented and modified. The commencement of the first interest period shall be July 21, 1998. All New Mortgage Bonds of the 2002 Series shall mature on July 15, 2002, and shall bear interest at the rate of SIX AND ONE-QUARTER PER CENT (6 1/4%) per annum, payable semi-annually on July 15 and January 15 in each year. The person in whose name any of the New Mortgage Bonds of the 2002 Series are registered at the close of business on any record date (as hereinafter defined) with respect to any interest payment date shall be entitled to receive the interest payable on such interest payment date notwithstanding the cancellation of such New Mortgage Bonds of the 2002 Series upon any transfer or exchange subsequent to the record date and prior to such interest payment date; provided, however, that if and to the extent the Company shall default in the payment of the interest due on such interest payment date, such defaulted interest shall be paid as provided in Section 3.07 of the Indenture. The term "record date" as used in this Section with respect to any interest payment date shall mean the July 1 or January 1, as the case may be, next preceding the semi-annual interest payment date, or, if such July 1 or January 1 shall be a legal holiday or a day on which banking institutions in the City of Chicago, Illinois, are authorized by law to close, then the next preceding day which shall not be a legal holiday or a day on which such institutions are so authorized to close. SECTION 2. The New Mortgage Bonds of the 2002 Series shall be issued only as registered Bonds without coupons of the denomination of $1,000, or any integral multiple of $1,000, appropriately numbered. The New Mortgage Bonds of the 2002 Series may be exchanged, upon surrender thereof, at the agency of the Company in the City of Chicago, Illinois, for one or more New Mortgage Bonds of the 2002 Series of other authorized denominations, for the same aggregate principal amount, subject to the terms and conditions set forth in the Indenture. New Mortgage Bonds of the 2002 Series may be exchanged or transferred without expense to the registered owner thereof except that any taxes or other governmental charges required to be paid with respect to such transfer or exchange shall be paid by the registered owner requesting such transfer or exchange as a condition precedent to the exercise of such privilege. SECTION 3. The New Mortgage Bonds of the 2002 Series and the Trustee's Certificate of Authentication shall be substantially in the following forms respectively: 3 4 [FORM OF FACE OF BOND] ILLINOIS POWER COMPANY (Incorporated under the laws of the State of Illinois) NEW MORTGAGE BOND, 6 1/4% SERIES DUE 2002 No. . . . . . . . . . . . . . $100,000,000 ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company," which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to ........ or registered assigns, the principal sum of One Hundred Million Dollars ($100,000,000) on July 15, 2002, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts, and to pay interest thereon in like coin or currency from July 21, 1998, payable semi-annually on1 July 15 and January 15 in each year, commencing January 15, 1999, at the rate of SIX AND ONE-QUARTER per cent (6 1/4%) per annum, until the Company's obligation with respect to the payment of such principal shall be discharged as provided in the Indenture hereinafter mentioned. The interest so payable on any July 15 or January 15 will, subject to certain exceptions provided in the Supplemental Indenture dated as of July 15, 1998, be paid to the person in whose name this New Mortgage Bond is registered at the close of business on the immediately preceding July 1 or January 1, as the case may be. Both principal of, and interest on, this New Mortgage Bond are payable at the agency of the Company in the City of Chicago, Illinois. This New Mortgage Bond shall not be entitled to any benefit under the Indenture or any indenture supplemental thereto, or become valid or obligatory for any purpose, until the form of certificate endorsed hereon shall have been signed by or on behalf of Harris Trust and Savings Bank, the Trustee under the Indenture, or a successor trustee thereto under the Indenture (the "Trustee"). The provisions of this New Mortgage Bond are continued on the reverse hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. IN WITNESS WHEREOF, Illinois Power Company has caused this New Mortgage Bond to be signed (manually or by facsimile signature) in its name by an Authorized Executive Officer, as defined in the Indenture, and its corporate seal (or a facsimile thereof) to be hereto affixed and attested (manually or by facsimile signature) by an Authorized Executive Officer, as defined in the Indenture. Dated . . . . . . . . . . . . ILLINOIS POWER COMPANY, By ................................ Authorized Executive Officer ATTEST: ........................................ Authorized Executive Officer 4 5 [FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION] This New Mortgage Bond is one of the Bonds of the series designated therein referred to in the within-mentioned Indenture dated as of November 1, 1992 and the Supplemental Indenture dated as of July 15, 1998. HARRIS TRUST AND SAVINGS BANK, Trustee, By ................................ Authorized Signatory [FORM OF REVERSE OF BOND] This New Mortgage Bond is one of a duly authorized issue of Bonds of the Company (the "Bonds") in unlimited aggregate principal amount, of the series hereinafter specified, all issued and to be issued under and equally secured by a General Mortgage Indenture and Deed of Trust (the "Indenture"), dated as of November 1, 1992, executed by the Company to Harris Trust and Savings Bank (the "Trustee"), as Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of registered owners of the Bonds and of the Trustee in respect thereof, and the terms and conditions upon which the Bonds are, and are to be, secured. The Bonds may be issued in series, for various principal sums, may mature at different times, may bear interest at different rates and may otherwise vary as provided in the Indenture. This New Mortgage Bond of the 2002 Series is one of a series designated as the "New Mortgage Bonds, 6 1/4% Series Due 2002" (the "New Mortgage Bonds of the 2002 Series") of the Company, unlimited in aggregate principal amount, issued under and secured by the Indenture and described in the supplemental indenture dated as of July 15, 1998 (the "Supplemental Indenture dated as of July 15, 1998"), between the Company and the Trustee, supplemental to the Indenture. The New Mortgage Bonds of the 2002 Series are not subject to redemption prior to maturity. In case an Event of Default, as defined in the Indenture, shall occur, the principal of all the Bonds at any such time outstanding under the Indenture may be declared or may become due and payable, upon the conditions and in the manner and with the effect provided in the Indenture. The Indenture provides that such declaration may be rescinded under certain circumstances. ARTICLE II. ISSUE OF NEW MORTGAGE BONDS OF THE 2002 SERIES. SECTION 1. The Company hereby exercises the right to obtain the authentication of $100,000,000 principal amount of Bonds pursuant to the terms of Section 4.02 of the Indenture. All such Bonds shall be New Mortgage Bonds of the 2002 Series. SECTION 2. Such New Mortgage Bonds of the 2002 Series may be authenticated and delivered prior to the filing for recordation of this Supplemental Indenture. 5 6 ARTICLE III. REDEMPTION. The New Mortgage Bonds of the 2002 Series shall not be redeemable prior to maturity. ARTICLE IV. THE TRUSTEE. The Trustee hereby accepts the trusts hereby declared and provided, and agrees to perform the same upon the terms and conditions in the Indenture set forth and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. In general, each and every term and condition contained in Article Eleven of the Indenture shall apply to this Supplemental Indenture with the same force and effect as if the same were herein set forth in full, with such omissions, variations and modifications thereof as may be appropriate to make the same conform to this Supplemental Indenture. ARTICLE V. MISCELLANEOUS PROVISIONS. This Supplemental Indenture may be simultaneously executed in any number of counterparts, each of which when so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. 6 7 IN WITNESS WHEREOF, Illinois Power Company has caused this Indenture to be executed on its behalf by an Authorized Executive Officer as defined in the Indenture, and its corporate seal to be hereto affixed and said seal and this Indenture to be attested by an Authorized Executive Officer as defined in the Indenture; and said 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 fifteenth day of July, 1998. ILLINOIS POWER COMPANY By /s/ ROBERT A. SCHULTZ -------------------------------- (CORPORATE SEAL) Robert A. Schultz Vice President - Finance ATTEST: /s/ ELIZABETH A. O'DONNELL - ------------------------------- Elizabeth A. O'Donnell Assistant Secretary HARRIS TRUST AND SAVINGS BANK, Trustee By /s/ J. BARTOLINI -------------------------------- (CORPORATE SEAL) J. Bartolini Vice President ATTEST: /s/ C. POTTER - ------------------------ C. Potter Assistant Secretary 7 8 STATE OF ILLINOIS ) ) SS.: COUNTY OF MACON ) BE IT REMEMBERED, that on this 11th day of June, 1998, before me, the undersigned, a Notary Public within and for the County and State aforesaid, personally came Robert A. Schultz, Vice President - Finance and Elizabeth A. O'Donnell, Assistant 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 officers, and as the free and voluntary act of said Illinois Power Company for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. ------------------------------------- Notary Public, Macon County, Illinois My Commission Expires _______________. (NOTARIAL SEAL) STATE OF ILLINOIS ) ) SS.: COUNTY OF COOK ) BE IT REMEMBERED, that on this 12th day of June, 1998, 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 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 officers, and as the 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. ------------------------------------ Notary Public, Cook County, Illinois My Commission Expires: May 21, 2001 (NOTARIAL SEAL) 8 9 Return To: This Instrument Was Prepared By: ILLINOIS POWER COMPANY SCHIFF HARDIN & WAITE Real Estate Dept. F-14 6600 Sears Tower 500 S. 27th Street 233 South Wacker Drive Decatur, IL 62525 Chicago, IL 60606 9 EX-4.45 10 SUPP INDENT 9/15/98 TO MORT & DEED OF TRUST 1 EXHIBIT 4.45 ================================================================================ ILLINOIS POWER COMPANY TO HARRIS TRUST AND SAVINGS BANK, AS TRUSTEE ------------- SUPPLEMENTAL INDENTURE DATED AS OF SEPTEMBER 15, 1998 TO MORTGAGE AND DEED OF TRUST DATED NOVEMBER 1, 1943 ================================================================================ 2 SUPPLEMENTAL INDENTURE dated as of September 15, 1998 (the "Supplemental Indenture"), made by and between ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), party of the first part, and 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, hereinafter mentioned, party of the second part; WHEREAS, the Company has heretofore executed and delivered its Mortgage and Deed of Trust dated November 1, 1943 ("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, pursuant to the terms and provisions of the Original Indenture there were created and authorized by Supplemental Indentures thereto bearing the following dates, respectively, the First Mortgage Bonds of the series issued thereunder and respectively identified opposite such dates:
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED - -------------------- -------------- ------ November 1, 1943 4% Series due 1973 Bonds of the 1973 Series (redeemed) March 1, 1946 2 7/8% Series due 1976 Bonds of the 1976 Series (paid at maturity) February 1, 1948 3 1/2% Series due 1978 Bonds of the 1978 SeriEs (paid at maturity) July 1, 1949 2 7/8 % Series due 1979 Bonds of the 1979 Series (paid at maturity) April 1, 1950 2 3/4% Series due 1980 Bonds of the 1980 SeriEs (paid at maturity) March 1, 1952 3 1/2% Series due 1982 Bonds of the 1982 SeriEs (paid at maturity) November 1, 1953 3 1/2% Series due 1983 Bonds of the 1983 SeriEs (paid at maturity) July 1, 1956 3 3/4% Series due 1986 Bonds of the 1986 SeriEs (paid at maturity) May 1, 1958 4% Series due 1988 Bonds of the 1988 Series (redeemed) January 1, 1963 4 1/4% Series due 1993 Bonds of the 1993 SeriEs (paid at maturity) October 1, 1966 5.85% Series due 1996 Bonds of the 1996 Series (paid at maturity)
-2- 3
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED - -------------------- -------------- ------ January 1, 1968 6 3/8% Series due 1998 Bonds of the First 1998 Series (redeemed) October 1, 1968 6 3/4% Series due October 1, Bonds of the Second 1998 Series 1998 (redeemed) October 1, 1969 8.35% Series due 1999 Bonds of the First 1999 Series (redeemed) November 1, 1970 9% Series due 2000 Bonds of the 2000 Series (redeemed) October 1, 1971 7.60% Series due 2001 Bonds of the 2001 Series (redeemed) June 1, 1973 7 5/8% Series due 2003 Bonds of the First 2003 Series (redeemed) May 1, 1974 Pollution Control Series A Bonds of the Pollution Control Series A September 1, 1974 10 1/2% Series due 2004 Bonds of the First 2004 Series (redeemed) July 1, 1976 8 3/4% Series due 2006 Bonds of the 2006 Series (redeemed) May 1, 1977 Pollution Control Series B Bonds of Pollution Control (redeemed) Series B November 1, 1977 8 1/4% Series due 2007 Bonds of the 2007 Series (redeemed) August 1, 1978 8 7/8% Series due 2008 Bonds of the 2008 Series (redeemed) July 1, 1979 9 7/8% Series due July 1, Bonds of the Second 2004 Series 2004 (redeemed) July 31, 1980 11 3/8% Series due 1987 Bonds of the 1987 Series (redeemed) August 1, 1980 12 5/8% Series due 2010 Bonds of the 2010 Series (redeemed) July 1, 1982 14 1/2% Series due 1990 Bonds of the 1990 Series (redeemed)
-3- 4
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED - -------------------- -------------- ------ November 1, 1982 12% Series due 2012 Bonds of the 2012 Series (redeemed) December 15, 1983 Pollution Control Series C Bonds of the Pollution Control (redeemed) Series C May 15, 1984 Pollution Control Series D Bonds of the Pollution Control (redeemed) Series D March 1, 1985 Pollution Control Series E Bonds of the Pollution Control (redeemed) Series E February 1, 1986 10 1/2% Series due 2016 Bonds of the First 2016 Series (redeemed) July 1, 1986 9 7/8% Series due 2016 Bonds of the Second 2016 Series (redeemed) September 1, 1986 9 3/8% Series due 2016 Bonds of the Third 2016 Series (redeemed) February 1, 1987 Pollution Control Series F Bonds of the Pollution Control (redeemed) Series F February 1, 1987 Pollution Control Series G Bonds of the Pollution Control (redeemed) Series G February 1, 1987 Pollution Control Series H Bonds of the Pollution Control (redeemed) Series H July 1, 1987 Pollution Control Series I Bonds of the Pollution Control (redeemed) Series I July 1, 1988 10% Series due 1998 Bonds of the Third 1998 Series (redeemed) July 1, 1991 Pollution Control Series J Bonds of the Pollution Control Series J June 1, 1992 Pollution Control Series K Bonds of the Pollution Control Series K June 1, 1992 Pollution Control Series L Bonds of the Pollution Control Series L July 1, 1992 7.95% Series due 2004 Bonds of the Third 2004 Series July 1, 1992 8 3/4% Series due 2021 Bonds of the 2021 Series September 1, 1992 6 1/2% Series due 1999 Bonds of the 1999 Series
-4- 5
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED - -------------------- -------------- ------ February 15, 1993 8% Series due 2023 Bonds of the 2023 Series March 15, 1993 6 1/8% Series due 2000 Bonds of the 2000 Series March 15, 1993 6 3/4% Series due 2005 Bonds of the 2005 Series July 15, 1993 7 1/2% Series due 2025 Bonds of the 2025 Series August 1, 1993 6 1/2% Series due 2003 Bonds of the Second 2003 Series October 15, 1993 5 5/8% Series due 2000 Bonds of the Second 2000 Series November 1, 1993 Pollution Control Series M Bonds of the Pollution Control Series M November 1, 1993 Pollution Control Series N Bonds of the Pollution Control Series N November 1, 1993 Pollution Control Series O Bonds of the Pollution Control Series O April 1, 1997 Pollution Control Series P Bonds of the Pollution Control Series P April 1, 1997 Pollution Control Series Q Bonds of the Pollution Control Series Q April 1, 1997 Pollution Control Series R Bonds of the Pollution Control Series R March 1, 1998 Pollution Control Series S Bonds of the Pollution Control Series S March 1, 1998 Pollution Control Series T Bonds of the Pollution Control Series T July 15, 1998 6 1/4% Series due 2002 Bonds of the 2002 Series
and WHEREAS, the Company desires to create a new series of Bonds to be issued under the Original Indenture, to be known as First Mortgage Bonds, 6% Series due 2003 (the "Bonds of the Third 2003 Series") and to issue additional Bonds under the Original Indenture; and -5- 6 WHEREAS, the Bonds of the Third 2003 Series are to be issued to Harris Trust and Savings Bank, as trustee (the "New Mortgage Trustee") under the Company's General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (the "New Mortgage") and are to be owned and held by the New Mortgage Trustee as "Pledged Bonds" (as defined in the New Mortgage) in accordance with the terms of the New Mortgage; 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 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 SUPPLEMENTAL 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 the New Trustee and any successor holder of the Bonds as follows: ARTICLE I. DESCRIPTION OF BONDS OF THE THIRD 2003 SERIES. SECTION 1. The Company hereby creates a new series of Bonds to be known as "The First Mortgage Bonds, 6% Series due 2003" (the "Bonds of the Third 2003 Series"). The Bonds of the Third 2003 Series shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, all of the terms, conditions and covenants of the Original Indenture, as supplemented and modified. The Bonds of the Third 2003 Series will be issued only to the New Mortgage Trustee as security for a series of bonds being issued under the Company's New Mortgage and the supplemental indenture to the New Mortgage dated as of September 15, 1998 (the "New Mortgage Bonds of the Second 2003 Series"). The Bonds of the Third 2003 Series shall be dated as provided in Section 6 of Article II of the Original Indenture and for the purposes of said Section 6 the commencement of the first interest period shall be September 16, 1998. All Bonds of the Third 2003 Series shall mature on September 15, 2003, and shall bear interest at the rate of SIX PER CENT (6%) per annum, payable semi-annually on March 15 and September 15 of each year, commencing March 15, 1999, until the principal sum is paid in full. Any payment by the Company of principal of, or interest on, any Bonds of the Third 2003 Series shall be applied by the New Mortgage Trustee to the payment of any principal or interest, as the case may be, in respect of the New Mortgage Bonds of the Second 2003 Series due in accordance with the terms of the New Mortgage. SECTION 2. The Bonds of the Third 2003 Series and the Trustee's Certificate shall be substantially in the following forms respectively: -6- 7 [FORM OF FACE OF BOND] ILLINOIS POWER COMPANY (Incorporated under the laws of the State of Illinois) FIRST MORTGAGE BOND, 6% SERIES DUE 2003 No. ............. $100,000,000 ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company," which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to Harris Trust and Savings Bank as trustee (the "New Mortgage Trustee") under the Company's General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (the "New Mortgage") or its registered assigns, the principal sum of One Hundred Million Dollars ($100,000,000) on September 15, 2003, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts, and to pay interest thereon in like coin or currency from September 16, 1998, payable semi-annually on March 15 and September 15 in each year, commencing March 15, 1999, at the rate of SIX PER CENT (6%) per annum, until the Company's obligation with respect to the payment of such principal shall be discharged as provided in the Indenture. Both the principal of, and the interest on, this Bond are payable at the agency of the Company in the City of Chicago, Illinois. This First Mortgage Bond shall not be entitled to any benefit under the Indenture or any indenture supplemental thereto, or become valid or obligatory for any purpose, until the form of certificate endorsed hereon shall have been signed by or on behalf of Harris Trust and Savings Bank, the Trustee under the Indenture, or a successor trustee thereto under the Indenture (the "Trustee"). The provisions of this First Mortgage Bond are continued on the reverse hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. IN WITNESS WHEREOF, Illinois Power Company has caused this First Mortgage Bond to be signed (manually or by facsimile signature) in its name by its President or a Vice President, and its corporate seal (or a facsimile thereof) to be hereto affixed and attested (manually or by facsimile signature) by its Secretary or an Assistant Secretary. Dated . . . . . . . . . . . . . ILLINOIS POWER COMPANY, By . . . . . . . . . . . Vice President ATTEST: . . . . . . . . . . . . . . . . Assistant Secretary -7- 8 [FORM OF TRUSTEE'S CERTIFICATE] This First Mortgage Bond is one of the Bonds of the series designated therein, described in the within-mentioned Indenture and the Supplemental Indenture dated as of September 15, 1998. HARRIS TRUST AND SAVINGS BANK, Trustee, By . . . . . . . . . . . . . . Authorized Officer [FORM OF REVERSE OF BOND) This First Mortgage Bond is one of a duly authorized issue of Bonds of the Company (the "Bonds") in unlimited aggregate principal amount, of the series hereinafter specified, all issued and to be issued under and equally secured by the Mortgage and Deed of Trust (the "Indenture"), dated November 1, 1943, executed by the Company to Harris Trust and Savings Bank (the "Trustee"), as Trustee, to which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated February 15, 1993, which amended Section 1 of Article IX of the Indenture, reference is hereby made for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of the registered owners of the Bonds and of the Trustee in respect thereof, and the terms and conditions upon which the Bonds are, and are to be, secured. The Bonds may be issued in series, for various principal sums, may mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided. This First Mortgage Bond is one of a series designated as the First Mortgage Bonds, 6% Series Due 2003 (the "Bonds of the Third 2003 Series") of the Company, unlimited in aggregate principal amount, issued under and secured by the Indenture and described in the supplemental indenture dated as of September 15, 1998 (the "Supplemental Indenture of September 15, 1998"), between the Company and the Trustee, supplemental to the Indenture. To the extent permitted by, and as provided in, the Indenture, modifications or alterations of the Indenture, or of any indenture supplemental thereto, and of the rights and obligations of the Company and of the holders of the Bonds and coupons may be made with the consent of the Company by an affirmative vote of the holders of not less than 662/3% in amount of the Bonds entitled to vote then outstanding, at a meeting of Bondholders called and held as provided in the Indenture, and by an affirmative vote of the holders of not less than 662/3% in amount of the Bonds of any series entitled to vote then outstanding and affected by such modification or alteration, in case one or more but less than all of the series of Bonds then outstanding under the Indenture are so affected; provided however, that no such modification or alteration shall be made which will affect the terms of payment of the principal of, or interest or premium, if any, on this First Mortgage Bond. -8- 9 In case an Event of Default, as defined in the Indenture, shall occur, the principal of all the Bonds at any such time outstanding under the Indenture may be declared or may become due and payable, upon the conditions and in the manner and with the effect provided in the Indenture. The Indenture provides that such declaration may in certain events be rescinded by the holders of a majority in principal amount of the Bonds outstanding. No recourse shall be had for the payment of the principal of, or premium or interest on this First Mortgage Bond, or for any claim based hereon or on the Indenture or any indenture supplemental thereto, against any incorporator, or against any stockholder, director or officer, as such, past, present or future, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability, whether at common law, in equity, by any constitution, statute, rule of law, or otherwise, of incorporators, stockholders, directors or officers being released by every owner hereof by the acceptance of this First Mortgage Bond and as part of the consideration for the issue hereof, and being likewise released by the terms of the Indenture; provided, however, that nothing herein or in the Indenture or any indenture supplemental thereto contained shall prevent the enforcement of the liability, if any, of any stockholder or subscriber to capital stock upon or in respect of shares of capital stock not fully paid up. Notwithstanding any provision in the Indenture, the Supplemental Indenture of September 15, 1998 or this First Mortgage Bond to the contrary, any payment by the Company under the New Mortgage of principal of, or interest on, bonds which shall have been authenticated and delivered under the New Mortgage (the "New Mortgage Bonds of the Second 2003 Series") upon the basis of the issuance and delivery to the New Mortgage Trustee of the Bonds of the Third 2003 Series shall, to the extent thereof, be deemed to satisfy and discharge the obligation of the Company to make a payment of principal or interest, as the case may be, in respect of this First Mortgage Bond which is then due. This First Mortgage Bond constitutes a "Pledged Bond" (as defined in the New Mortgage) and is subject to all of the rights and restrictions applicable to Pledged Bonds as set forth in the New Mortgage. Without limiting the generality of the foregoing, this First Mortgage Bond shall be subject to surrender by the New Mortgage Trustee in accordance with the provisions of Section 7.03 of the New Mortgage. To the extent that any provisions in the Indenture, the Supplemental Indenture of September 15, 1998 or this First Mortgage Bond are inconsistent with the provisions relating to Pledged Bonds that are set forth in the New Mortgage, the provisions of the New Mortgage shall apply. SECTION 3. Notwithstanding any provision in the Original Indenture, this Supplemental Indenture, or the Bonds of the Third 2003 Series to the contrary, any payment by the Company under -9- 10 the New Mortgage of principal of, or interest on, New Mortgage Bonds of the Second 2003 Series upon the basis of the issuance and delivery to the New Mortgage Trustee of the Bonds of the Third 2003 Series shall, to the extent thereof, be deemed to satisfy and discharge the obligation of the Company to make any payment of principal or interest, as the case may be, in respect of the Bonds of the Third 2003 Series which is then due. SECTION 4. The Bonds of the Third 2003 Series constitute "Pledged Bonds" (as defined in the New Mortgage) and are subject to all of the rights and restrictions applicable to Pledged Bonds as set forth in the New Mortgage. Without limiting the generality of the foregoing, the Bonds of the Third 2003 Series shall be subject to surrender by the New Mortgage Trustee in accordance with the provisions of Section 7.03 of the New Mortgage. To the extent that any provisions in the Original Indenture, this Supplemental Indenture or the Bonds of the Third 2003 Series are inconsistent with the provisions relating to Pledged Bonds that are set forth in the New Mortgage, the provisions of the New Mortgage shall apply. ARTICLE II. ISSUE OF BONDS OF THE THIRD 2003 SERIES. SECTION 1. The Company hereby exercises the right to obtain the authentication of $100,000,000 principal amount of additional Bonds pursuant to the terms of Section 4 of Article III of the Original Indenture on the basis of 75% of the net bondable value of property additions not subject to an unfunded prior lien. All such additional Bonds shall be Bonds of the Third 2003 Series. SECTION 2. Such Bonds of the Third 2003 Series may be authenticated and delivered prior to the filing for recordation of this Supplemental Indenture. SECTION 3. Notwithstanding any provision in the Original Indenture to the contrary, execution of the Bonds of the Third 2003 Series on behalf of the Company, and the attesting of the corporate seal of the Company affixed to the Bonds of the Third 2003 Series by the officers of the Company authorized to do such acts by Section 12 of Article II of the Original Indenture may be validly done either by the manual or the facsimile signatures of such authorized officers of the Company. ARTICLE III. REDEMPTION. The Bonds of the Third 2003 Series shall not be redeemable prior to maturity. -10- 11 ARTICLE IV. THE TRUSTEE. The Trustee hereby accepts the trusts hereby declared and provided, and agrees to perform the same upon the terms and conditions in the 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 V. MISCELLANEOUS PROVISIONS. This Supplemental Indenture may be simultaneously executed in any number of counterparts, each of which when so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. -11- 12 IN WITNESS WHEREOF, Illinois Power Company has caused this Supplemental 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 Supplemental 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 Supplemental 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 Supplemental Indenture to be attested by its Secretary or one of its Assistant Secretaries; all as of the fifteenth day of August, 1998. ILLINOIS POWER COMPANY By /s/ ROBERT A. SCHULTZ --------------------------------- Robert A. Schultz Vice President - Finance (CORPORATE SEAL) ATTEST: /s/ SONDRA K. COOPRIDER - ------------------------------- Sondra K. Cooprider Assistant Secretary HARRIS TRUST AND SAVINGS BANK, Trustee By /s/ J. BARTOLINI -------------------------------- J. Bartolini Vice President (CORPORATE SEAL) ATTEST: /s/ C. POTTER - ----------------------------- C. Potter Assistant Secretary -12- 13 STATE OF ILLINOIS ) ) SS.: COUNTY OF MACON ) BE IT REMEMBERED, that on this 12th day of August, 1998, before me, the undersigned, a Notary Public within and for the County and State aforesaid, personally came Robert A. Schultz, Vice President - Finance and Sondra K. Cooprider, Assistant 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 officers and as the free and voluntary act of said Illinois Power Company for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. ------------------------------------- Notary Public, Macon County, Illinois My Commission Expires on _________________. (NOTARIAL SEAL) STATE OF ILLINOIS ) ) SS.: COUNTY OF COOK ) BE IT REMEMBERED, that on this 17th day of August, 1998, 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 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 Secretary, respectively, and as the 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. ------------------------------------- Notary Public, Macon County, Illinois My Commission Expires on May 21, 2001. (NOTARIAL SEAL) -13- 14 Return To: This Instrument Was Prepared By: ILLINOIS POWER COMPANY SCHIFF HARDIN & WAITE Real Estate Dept. F-14 6600 Sears Tower 500 S. 27th Street 233 South Wacker Drive Decatur, IL 62525 Chicago, IL 60606 -14- EX-4.46 11 SUPP INDENT 9/15/98 TO GENERAL MORTGAGE INDENT 1 EXHIBIT 4.46 ================================================================================ ILLINOIS POWER COMPANY TO HARRIS TRUST AND SAVINGS BANK, AS TRUSTEE ------------------ SUPPLEMENTAL INDENTURE DATED AS OF SEPTEMBER 15, 1998 TO GENERAL MORTGAGE INDENTURE AND DEED OF TRUST DATED AS OF NOVEMBER 1, 1992 ================================================================================ 2 SUPPLEMENTAL INDENTURE dated as of September 15, 1998 (the "Supplemental Indenture"), made by and between ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), party of the first part, and HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois (the "Trustee"), as Trustee under the General Mortgage indenture and Deed of Trust dated as of November 1, 1992, hereinafter mentioned, party of the second part; WHEREAS, the Company has heretofore executed and delivered its General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (the "Indenture"), to the Trustee, for the security of the Bonds of the Company issued and to be issued thereunder (the "Bonds"); and WHEREAS, pursuant to the terms and provisions of the Indenture there were created and authorized by Supplemental Indentures thereto bearing the following dates, respectively, the New Mortgage Bonds of the series issued thereunder and respectively identified opposite such dates:
DATE OF SUPPLEMENTAL IDENTIFICATION INDENTURE OF SERIES CALLED - -------------------- ------------------ ------ February 15, 1993 8% Series due 2023 Bonds of the 2023 Series March 15, 1993 6 1/2% Series due 2000 Bonds of the 2000 SeriES March 15, 1993 6 3/4% Series due 2005 Bonds of the 2005 SeriES July 15, 1993 7 1/2% Series due 2025 Bonds of the 2025 SeriES August 1, 1993 6 1/2% Series due 2003 Bonds of the First 2003 Series October 15, 1993 5 % Series due 2000 Bonds of the Second 2000 Series November 1, 1993 Pollution Control Series M Bonds of the Pollution Control Series M November 1, 1993 Pollution Control Series N Bonds of the Pollution Control Series N November 1, 1993 Pollution Control Series O Bonds of the Pollution Control Series O April 1, 1997 Pollution Control Series P Bonds of the Pollution Control Series P April 1, 1997 Pollution Control Series Q Bonds of the Pollution Control Series Q April 1, 1997 Pollution Control Series R Bonds of the Pollution Control Series R March 1, 1998 Pollution Control Series S Bonds of the Pollution Control Series S March 1, 1998 Pollution Control Series T Bonds of the Pollution Control Series T July 15, 1998 6 1/4% Series due 2002 Bonds of the 2002 Series
WHEREAS, the Company desires to create a new series of Bonds to be issued under the Indenture, to be known as New Mortgage Bonds, 6% Series due 2003 (the "New Mortgage Bonds of the Second 2003 Series"); and WHEREAS, the Company, in the exercise of the powers and authority conferred upon and reserved to it under the provisions of the indenture, and pursuant to appropriate resolutions of the Board of Directors, has duly resolved and determined to make, execute and deliver to the Trustee a Supplemental Indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument have been done, performed and fulfilled and the execution and delivery hereof have been in all respects duly authorized; NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: THAT Illinois Power Company, in consideration of the purchase and ownership from time to time of the Bonds and the service by the Trustee, and its successors, under the Indenture and of 2 3 One Dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trust under the Indenture, for the benefit of those who shall hold the Bonds as follows: ARTICLE I. DESCRIPTION OF NEW MORTGAGE BONDS OF THE SECOND 2003 SERIES. SECTION 1. The Company hereby creates a new series of Bonds to be known as the "New Mortgage Bonds of the Second 2003 Series." The New Mortgage Bonds of the Second 2003 Series shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, all of the terms, conditions and covenants of the Indenture, as supplemented and modified. The commencement of the first interest period shall be September 16, 1998. All New Mortgage Bonds of the Second 2003 Series shall mature on September 15, 2003, and shall bear interest at the rate of SIX PER CENT (6%) per annum, payable semi-annually on March 15 and September 15 in each year. The person in whose name any of the New Mortgage Bonds of the Second 2003 Series are registered at the close of business on any record date (as hereinafter defined) with respect to any interest payment date shall be entitled to receive the interest payable on such interest payment date notwithstanding the cancellation of such New Mortgage Bonds of the Second 2003 Series upon any transfer or exchange subsequent to the record date and prior to such interest payment date; provided, however, that if and to the extent the Company shall default in the payment of the interest due on such interest payment date, such defaulted interest shall be paid as provided in Section 3.07 of the Indenture. The term "record date" as used in this Section with respect to any interest payment date shall mean the March 1 or September 1, as the case may be, next preceding the semi-annual interest payment date, or, if such March 1 or September 1 shall be a legal holiday or a day on which banking institutions in the City of Chicago, Illinois, are authorized by law to close, then the next preceding day which shall not be a legal holiday or a day on which such institutions are so authorized to close. SECTION 2. The New Mortgage Bonds of the Second 2003 Series shall be issued only as registered Bonds without coupons of the denomination of $1,000, or any integral multiple of $1,000, appropriately numbered. The New Mortgage Bonds of the Second 2003 Series may be exchanged, upon surrender thereof, at the agency of the Company in the City of Chicago, Illinois, for one or more New Mortgage Bonds of the Second 2003 Series of other authorized denominations, for the same aggregate principal amount, subject to the terms and conditions set forth in the Indenture. New Mortgage Bonds of the Second 2003 Series may be exchanged or transferred without expense to the registered owner thereof except that any taxes or other governmental charges required to be paid with respect to such transfer or exchange shall be paid by the registered owner requesting such transfer or exchange as a condition precedent to the exercise of such privilege. SECTION 3. The New Mortgage Bonds of the Second 2003 Series and the Trustee's Certificate of Authentication shall be substantially in the following forms respectively: 3 4 [FORM OF FACE OF BOND] ILLINOIS POWER COMPANY (Incorporated under the laws of the State of Illinois) NEW MORTGAGE BOND, 6% SERIES DUE 2003 No. . . . . . . . . . . . . . $100,000,000 ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company," which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to ........ or registered assigns, the principal sum of One Hundred Million Dollars ($100,000,000) on September 15, 2003, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts, and to pay interest thereon in like coin or currency from September 16, 1998, payable semi-annually on March 15 and September 15 in each year, commencing March 15, 1999, at the rate of SIX PER CENT (6%) per annum, until the Company's obligation with respect to the payment of such principal shall be discharged as provided in the Indenture hereinafter mentioned. The interest so payable on any March 15 or September 15 will, subject to certain exceptions provided in the Supplemental Indenture dated as of September 15, 1998, be paid to the person in whose name this New Mortgage Bond is registered at the close of business on the immediately preceding March 1 or September 1, as the case may be. Both principal of, and interest on, this New Mortgage Bond are payable at the agency of the Company in the City of Chicago, Illinois. This New Mortgage Bond shall not be entitled to any benefit under the Indenture or any indenture supplemental thereto, or become valid or obligatory for any purpose, until the form of certificate endorsed hereon shall have been signed by or on behalf of Harris Trust and Savings Bank, the Trustee under the Indenture, or a successor trustee thereto under the Indenture (the "Trustee"). The provisions of this New Mortgage Bond are continued on the reverse hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. IN WITNESS WHEREOF, Illinois Power Company has caused this New Mortgage Bond to be signed (manually or by facsimile signature) in its name by an Authorized Executive Officer, as defined in the Indenture, and its corporate seal (or a facsimile thereof) to be hereto affixed and attested (manually or by facsimile signature) by an Authorized Executive Officer, as defined in the Indenture. Dated . . . . . . . . . . . . ILLINOIS POWER COMPANY, By ............................... Authorized Executive Officer ATTEST: ...................................... Authorized Executive Officer 4 5 [FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION] This New Mortgage Bond is one of the Bonds of the series designated therein referred to in the within-mentioned Indenture dated as of November 1, 1992 and the Supplemental Indenture dated as of September 15, 1998. HARRIS TRUST AND SAVINGS BANK, Trustee, By............................... Authorized Signatory [FORM OF REVERSE OF BOND] This New Mortgage Bond is one of a duly authorized issue of Bonds of the Company (the "Bonds") in unlimited aggregate principal amount, of the series hereinafter specified, all issued and to be issued under and equally secured by a General Mortgage Indenture and Deed of Trust (the "Indenture"), dated as of November 1, 1992, executed by the Company to Harris Trust and Savings Bank (the "Trustee"), as Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of registered owners of the Bonds and of the Trustee in respect thereof, and the terms and conditions upon which the Bonds are, and are to be, secured. The Bonds may be issued in series, for various principal sums, may mature at different times, may bear interest at different rates and may otherwise vary as provided in the Indenture. This New Mortgage Bond of the Second 2003 Series is one of a series designated as the "New Mortgage Bonds, 6% Series Due 2003" (the "New Mortgage Bonds of the Second 2003 Series") of the Company, unlimited in aggregate principal amount, issued under and secured by the Indenture and described in the supplemental indenture dated as of September 15, 1998 (the "Supplemental Indenture dated as of September 15, 1998"), between the Company and the Trustee, supplemental to the Indenture. The New Mortgage Bonds of the Second 2003 Series are not subject to redemption prior to maturity. In case an Event of Default, as defined in the Indenture, shall occur, the principal of all the Bonds at any such time outstanding under the Indenture may be declared or may become due and payable, upon the conditions and in the manner and with the effect provided in the Indenture. The Indenture provides that such declaration may be rescinded under certain circumstances. ARTICLE II. ISSUE OF NEW MORTGAGE BONDS OF THE SECOND 2003 SERIES. SECTION 1. The Company hereby exercises the right to obtain the authentication of $100,000,000 principal amount of Bonds pursuant to the terms of Section 4.02 of the Indenture. All such Bonds shall be New Mortgage Bonds of the Second 2003 Series. 5 6 SECTION 2. Such New Mortgage Bonds of the Second 2003 Series may be authenticated and delivered prior to the filing for recordation of this Supplemental Indenture. ARTICLE III. REDEMPTION. The New Mortgage Bonds of the Second 2003 Series shall not be redeemable prior to maturity. ARTICLE IV. THE TRUSTEE. The Trustee hereby accepts the trusts hereby declared and provided, and agrees to perform the same upon the terms and conditions in the Indenture set forth and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. In general, each and every term and condition contained in Article Eleven of the Indenture shall apply to this Supplemental Indenture with the same force and effect as if the same were herein set forth in full, with such omissions, variations and modifications thereof as may be appropriate to make the same conform to this Supplemental Indenture. ARTICLE V. MISCELLANEOUS PROVISIONS. This Supplemental Indenture may be simultaneously executed in any number of counterparts, each of which when so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. 6 7 IN WITNESS WHEREOF, Illinois Power Company has caused this Indenture to be executed on its behalf by an Authorized Executive Officer as defined in the Indenture, and its corporate seal to be hereto affixed and said seal and this Indenture to be attested by an Authorized Executive Officer as defined in the Indenture; and said 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 fifteenth day of September, 1998. ILLINOIS POWER COMPANY By /s/ ROBERT A. SCHULTZ ---------------------------- (CORPORATE SEAL) Robert A. Schultz Vice President - Finance ATTEST: /s/ SONDRA K. COOPRIDER - ----------------------- Sondra K. Cooprider Assistant Secretary HARRIS TRUST AND SAVINGS BANK, TRUSTEE By /s/ J. BARTOLINI ------------------------------- (CORPORATE SEAL) J. Bartolini Vice President ATTEST: /s/ C. POTTER - ----------------------- C. Potter Assistant Secretary 7 8 STATE OF ILLINOIS ) ) SS.: COUNTY OF MACON ) BE IT REMEMBERED, that on this 12th day of August, 1998, before me, the undersigned, a Notary Public within and for the County and State aforesaid, personally came Robert A. Schultz, Vice President - Finance and Sondra K. Cooprider, Assistant 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 officers, and as the free and voluntary act of said Illinois Power Company for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. __________________________________________ Notary Public, Macon County, Illinois My Commission Expires _______________. (NOTARIAL SEAL) STATE OF ILLINOIS ) ) SS.: COUNTY OF COOK ) BE IT REMEMBERED, that on this 17th day of August, 1998, 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 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 officers, and as the 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. __________________________________________ Notary Public, Cook County, Illinois My Commission Expires: May 21, 2001 (NOTARIAL SEAL) 8 9 Return To: This Instrument Was Prepared By: ILLINOIS POWER COMPANY SCHIFF HARDIN & WAITE Real Estate Dept. F-14 6600 Sears Tower 500 S. 27th Street 233 South Wacker Drive Decatur, IL 62525 Chicago, IL 60606 9 EX-4.47 12 SUPP INDET 10/1/98 TO GEN MORT INDENT & DEED 1 EXHIBIT 4.47 ================================================================================ ILLINOIS POWER COMPANY TO HARRIS TRUST AND SAVINGS BANK, AS TRUSTEE SUPPLEMENTAL INDENTURE DATED AS OF OCTOBER 1, 1998 TO GENERAL MORTGAGE INDENTURE AND DEED OF TRUST DATED AS OF NOVEMBER 1, 1992 ================================================================================ 2 SUPPLEMENTAL INDENTURE, dated as of October 1, 1998 (the "Supplemental Indenture"), made by and between ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), party of the first part, and HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois (the "Trustee"), as Trustee under the General Mortgage Indenture and Deed of Trust dated as of November 1, 1992, hereinafter mentioned, party of the second part; WHEREAS, Illinois Development Finance Authority, a political subdivision and body politic and corporate, duly organized and validly existing under and by virtue of the Constitution and laws of the State of Illinois ("IDFA") issued its Adjustable Rate Pollution Control Revenue Refunding Bonds in the aggregate principal amount of $111,770,000 in three series consisting of (i) $51,770,000 aggregate principal amount of Adjustable Rate Pollution Control Revenue Refunding Bonds, 1993 Series A (Illinois Power Company Project) (the "Series A IDFA Bonds"), (ii) $30,000,000 aggregate principal amount of Adjustable Rate Pollution Control Revenue Refunding Bonds, 1993 Series B (Illinois Power Company Project) (the "Series B IDFA Bonds"), and (iii) $30,000,000 aggregate principal amount of Adjustable Rate Pollution Control Revenue Refunding Bonds, 1993 Series C (Illinois Power Company Project) (the "Series C IDFA Bonds") (the Series A IDFA Bonds, Series B IDFA Bonds and Series C IDFA Bonds shall collectively be referred to as the "Related IDFA Bonds") and lent the proceeds of the issuance of the Related IDFA Bonds to the Company pursuant to three separate Loan Agreements each dated as of November 1, 1993 (individually as from time to time amended or modified, a "Loan Agreement" and collectively, the "Loan Agreements"), to assist the Company in the refunding of certain prior IDFA Pollution Control Revenue Bonds on or about December 15, 1993. WHEREAS, the Series A IDFA Bonds, Series B IDFA Bonds and Series C IDFA Bonds were issued by IDFA pursuant to three separate Indentures of Trust (as from time to time amended or modified, the "IDFA Series A Indenture," the "IDFA Series B Indenture" and the "IDFA Series C Indenture," respectively), each dated as of November 1, 1993 between IDFA and The Chase Manhattan Bank (formerly known as Chemical Bank) as Trustee under each such Indenture (together with any successor in such capacity, the "IDFA Indenture Trustee"), each of which was initially secured by three separate letters of credit (as from time to time amended, modified or replaced, the "Series A Letter of Credit," the "Series B Letter of Credit" and the "Series C Letter of Credit," respectively, and collectively, the "Letters of Credit") from Canadian Imperial Bank of Commerce, acting by and through its New York Agency ("CIBC") issued pursuant to three separate Reimbursement Agreements dated as of November 1, 1993 between the Company and CIBC (as from time to time amended or modified, the "Series A Reimbursement Agreement," the "Series B Reimbursement Agreement" and the "Series C Reimbursement Agreement," respectively, and collectively, the "Reimbursement Agreements"); and WHEREAS, the Series A Letter of Credit allows the IDFA Indenture Trustee to draw up to $54,535,795 for payment of principal and interest on the Series A IDFA Bonds (the "Series A Stated Amount"), the Series B Letter of Credit allows the IDFA Indenture Trustee to draw up to -2- 3 $31,602,740 for payment of principal and interest on the Series B IDFA Bonds (the "Series B Stated Amount"), and the Series C Letter of Credit allows the IDFA Indenture Trustee to draw up to $31,602,740 for payment of principal and interest on the Series C IDFA Bonds (the "Series C Stated Amount"); WHEREAS, the Company has heretofore executed and delivered its General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 as from time to time amended (the "Indenture"), to the Trustee, for the security of the Bonds of the Company issued and to be issued thereunder (the "Bonds"); and WHEREAS, the Company created three new series of Bonds under the Indenture and a Supplemental Indenture dated as of November 1, 1993 (the "November 1, 1993 Supplemental Indenture") known as New Mortgage Bonds, Pollution Control Series M (the "Pollution Control Series M Bonds"), New Mortgage Bonds, Pollution Control Series N (the "Pollution Control Series N Bonds") and the New Mortgage Bonds, Pollution Control Series O (the "Pollution Control Series O Bonds") to secure its obligations under the Reimbursement Agreements; WHEREAS, effective as of November 10, 1998, the Letters of Credit will be replaced by three separate letters of credit (as from time to time amended, modified or replaced, the "Series A ABN AMRO Letter of Credit," the "Series B ABN AMRO Letter of Credit," and the "Series C ABN AMRO Letter of Credit," respectively, and collectively, the "ABN AMRO Letters of Credit") from ABN AMRO Bank N.V. ("ABN AMRO") issued pursuant to three separate Reimbursement Agreements dated as of October 1, 1998 between the Company and ABN AMRO (as from time to time amended or modified, the "Series A ABN AMRO Reimbursement Agreement," the "Series B ABN AMRO Reimbursement Agreement" and the "Series C ABN AMRO Reimbursement Agreement," respectively, and collectively, the "ABN AMRO Reimbursement Agreements"); WHEREAS, the Company, with the consent of CIBC and the Trustee, desires to amend the November 1, 1993 Supplemental Indenture to reflect that, effective as of November 10, 1998, the Letters of Credit will be replaced by the ABN AMRO Letters of Credit and that the Pollution Control Series M Bonds, the Pollution Control Series N Bonds and Pollution Control Series O Bonds will hereafter secure the Company's obligations under the Reimbursement Agreements and the ABN AMRO Reimbursement Agreements; WHEREAS, the Company, in the exercise of the powers and authority conferred upon and reserved to it under the provisions of the Indenture, and pursuant to appropriate resolutions of the Board of Directors, has duly resolved and determined to make, execute and deliver to the Trustee a Supplemental Indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument have been done, performed and fulfilled and the execution and delivery hereof have been in all respects duly authorized; -3- 4 NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: THAT Illinois Power Company, in consideration of the purchase and ownership from time to time of the Bonds and the service by the Trustee, and its successors, under the Indenture and of One Dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trust under the Indenture, for the benefit of those who shall hold the Bonds as follows: ARTICLE I. AMENDMENT OF THE NOVEMBER 1, 1993 SUPPLEMENTAL INDENTURE. SECTION 1. The November 1, 1993 Supplemental Indenture is hereby amended to provide that, effective as of November 10, 1998: (a) All references to the "Series A Letter of Credit" shall also be deemed to be references to the "Series A ABN AMRO Letter of Credit (or any successor letter of credit)"; (b) All references to the "Series B Letter of Credit" shall also be deemed to be references to the "Series B ABN AMRO Letter of Credit (or any successor letter of credit)"; (c) All references to the "Series C Letter of Credit" shall also be deemed to be references to the "Series C ABN AMRO Letter of Credit (or any successor letter of credit)"; (d) All references to the "Series A Reimbursement Agreement" shall also be deemed to be references to the "Series A ABN AMRO Reimbursement Agreement (or any successor reimbursement agreement)"; (e) All references to the "Series B Reimbursement Agreement" shall also be deemed to be references to the "Series B ABN AMRO Reimbursement Agreement (or any successor reimbursement agreement)"; (f) All references to the "Series C Reimbursement Agreement" shall also be deemed to be references to the "Series C ABN AMRO Reimbursement Agreement (or any successor reimbursement agreement)"; and (g) All references to "CIBC" in Articles I, II and III of the November 1, 1993 Supplemental Indenture shall also be deemed to be references to "ABN AMRO (or any successor letter of credit bank)". -4- 5 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 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 Eleven of the Indenture shall apply to this Supplemental Indenture with the same force and effect as if the same were herein set forth in full, with such omissions, variations and modifications thereof as may be appropriate to make the same conform to this Supplemental Indenture. ARTICLE III. MISCELLANEOUS PROVISIONS. This Supplemental Indenture may be simultaneously executed in any number of counterparts, each of which when so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. -5- 6 IN WITNESS WHEREOF, said Illinois Power Company has caused this Supplemental Indenture to be executed on its behalf by an Authorized Executive Officer as defined in the Indenture, and its corporate seal to be hereto affixed and said seal and this Supplemental Indenture to be attested by an Authorized Executive Officer as defined in the Indenture; and said Harris Trust and Savings Bank, in evidence of its acceptance of the trust hereby created, has caused this Supplemental 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 Supplemental Indenture to be attested by its Secretary or one of its Assistant Secretaries; all as of the first day of October, 1998. ILLINOIS POWER COMPANY By /s/ Eric B. Weekes _____________________________ Eric B. Weekes Treasurer (CORPORATE SEAL) ATTEST: /s/ Sondra Cooprider ______________________________________ Sondra Cooprider Assistant Corporate Secretary HARRIS TRUST AND SAVINGS BANK, Trustee By /s/ J. Bartolini _____________________________ J. Bartolini Vice President (CORPORATE SEAL) ATTEST: /s/ D. Donovan ______________________________________ D. Donovan Assistant Secretary -6- 7 STATE OF ILLINOIS ) COUNTY OF MACON )ss.: BE IT REMEMBERED, that on this 1st day of October, 1998, before me, the undersigned, a Notary Public within and for the County and State aforesaid, personally came Eric B. Weekes, Treasurer, and Sondra Cooprider, Assistant Corporate 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 officers and as the free and voluntary act of said Illinois Power Company for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. ______________________________________ Notary Public, Macon County, Illinois My Commission Expires on ________________. (NOTARIAL SEAL) STATE OF ILLINOIS ) COUNTY OF COOK )ss.: BE IT REMEMBERED, that on this 2nd day of October, 1998, before me, the undersigned, a Notary Public within and for the County and State aforesaid, personally came J. Bartolini, Vice President, and D. Donovan, 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 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 officers, and as the 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.: ______________________________________ Notary Public, Cook County, Illinois My Commission Expires on _______________. (NOTARIAL SEAL) -7- 8 Return To: This Instrument Was Prepared By: ILLINOIS POWER COMPANY Schiff Hardin & Waite Real Estate Dept. F-14 6600 Sears Tower 500 S. 27th Street 233 South Wacker Drive Decatur, IL 62525 Chicago, IL 60606 -8- EX-4.48 13 FORM OF SUPPLEMENTAL INDENTURE FOR NEW MORT BONDS 1 EXHIBIT 4.48 (Form of Supplemental Indenture) SUPPLEMENTAL INDENTURE, dated as of _____________, _______ (the "Supplemental Indenture), made by and between ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company"), party of the first part, and HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois (the "Trustee"), as Trustee under the General Mortgage indenture and Deed of Trust dated as of November 1, 1992, hereinafter mentioned, party of the second part; WHEREAS, the Company has heretofore executed and delivered its General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 (the "Indenture"), to the Trustee, for the security of the Bonds of the Company issued and to be issued thereunder (the "Bonds"); and WHEREAS, pursuant to the terms and provisions of the Indenture there were created and authorized by Supplemental Indentures thereto bearing the following dates, respectively, the New Mortgage Bonds of the series issued thereunder and respectively identified opposite such dates:
Date of Supplemental Identification Indenture of Series Called -------------------- -------------- ------ February 15, 1993 8% Series due 2023 Bonds of the 2023 Series March 15, 1993 6 1/2% Series due 2000 Bonds of the 2000 Series March 15, 1993 6 3/4% Series due 2005 Bonds of the 2005 Series July 15, 1993 7 1/2% Series due 2025 Bonds of the 2025 Series August 1, 1993 6 1/2% Series due 2003 Bonds of the 2003 Series October 15, 1993 5 5/8% Series due 2000 Bonds of the Second 2000 Series November 1, 1993 Pollution Control Series M Bonds of the Pollution Control Series M November 1, 1993 Pollution Control Series N Bonds of the Pollution Control Series N November 1, 1993 Pollution Control Series O Bonds of the Pollution Control Series O April 1, 1997 Pollution Control Series P Bonds of the Pollution Control Series P April 1, 1997 Pollution Control Series Q Bonds of the Pollution Control Series Q April 1, 1997 Pollution Control Series R Bonds of the Pollution Control Series R March 1, 1998 Pollution Control Series S Bonds of the Pollution Control Series S March 1, 1998 Pollution Control Series T Bonds of the Pollution Control Series T July 15, 1998 6 1/4% Series due 2002 Bonds of the 2002 Series September 15, 1998 6% Series due 2003 Bonds of the Second 2003 Series
WHEREAS, the Company desires to create a new series of Bonds to be issued under the Indenture, to be known as New Mortgage Bonds, ____% Series due ____ (the "New Mortgage Bonds of the ____ Series"); and WHEREAS, the Company, in the exercise of the powers and authority conferred upon and reserved to it under the provisions of the indenture, and pursuant to appropriate resolutions of the Board of Directors, has duly resolved and determined to make, execute and deliver to the Trustee a Supplemental Indenture in the form hereof for the purposes herein provided; and 2 WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument have been done, performed and fulfilled and the execution and delivery hereof have been in all respects duly authorized; NOW, THEREFORE, THIS INDENTURE WITNESSETH: THAT Illinois Power Company, in consideration of the purchase and ownership from time to time of the Bonds and the service by the Trustee, and its successors, under the Indenture and of One Dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trust under the Indenture, for the benefit of those who shall hold the Bonds as follows: ARTICLE I. DESCRIPTION OF NEW MORTGAGE BONDS OF THE ____ SERIES. SECTION 1. The Company hereby creates a new series of Bonds to be known as "New Mortgage Bonds of the ____ Series." The New Mortgage Bonds of the ____ Series shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, all of the terms, conditions and covenants of the Indenture, as supplemented and modified. The commencement of the first interest period shall be ___________, ______. All New Mortgage Bonds of the ____ Series shall mature _____________, and shall bear interest at the rate of ______________ per cent (______%) per annum, payable semi-annually on the first day of _________ and the first day of ___________ in each year. The person in whose name any of the New Mortgage Bonds of the ____ Series are registered at the close of business on any record date (as hereinafter defined) with respect to any interest payment date shall be entitled to receive the interest payable on such interest payment date notwithstanding the cancellation of such New Mortgage Bonds of the ____ Series upon any transfer or exchange subsequent to the record date and prior to such interest payment date; provided, however, that if and to the extent the Company shall default in the payment of the interest due on such interest payment date, such defaulted interest shall be paid as provided in Section 3.07 of the Indenture. The term "record date" as used in this Section with respect to any interest payment date shall mean the _________ or ___________, as the case may be, next preceding the semi-annual interest payment date, or, if such _________ or _________ shall be a legal holiday or a day on which banking institutions in the City of Chicago, Illinois, are authorized by law to close, then the next preceding day which shall not be a legal holiday or a day on which such institutions are so authorized to close. 2 3 SECTION 2. The New Mortgage Bonds of the _____ Series shall be issued only as registered Bonds without coupons of the denomination of $1,000, or any integral multiple of $1,000, appropriately numbered. The New Mortgage Bonds of the ______ Series may be exchanged, upon surrender thereof, at the agency of the Company in the City of Chicago, Illinois, for one or more new New Mortgage Bonds of the ____ Series of other authorized denominations, for the same aggregate principal amount, subject to the terms and conditions set forth in the Indenture. New Mortgage Bonds of the ____ Series may be exchanged or transferred without expense to the registered owner thereof except that any taxes or other governmental charges required to be paid with respect to such transfer or exchange shall be paid by the registered owner requesting such transfer or exchange as a condition precedent to the exercise of such privilege. SECTION 3. The New Mortgage Bonds of the ____ Series and the Trustee's Certificate of Authentication shall be substantially in the following forms respectively: 3 4 [FORM OF FACE OF BOND] ILLINOIS POWER COMPANY (Incorporated under the laws of the State of Illinois) NEW MORTGAGE BOND, ____% SERIES DUE ____ No.____________ $_______________ ILLINOIS POWER COMPANY, a corporation organized and existing under the laws of the State of Illinois (the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to), for value received, hereby promises to pay to ________ or registered assigns, the sum of __________ Dollars ($_________) on the _____ day of ___________, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts, and to pay interest thereon in like coin or currency from _____________, payable semi-annually, on the _______ days of ___________ and _____________ in each year, at the rate of _____________ per cent (_____%) per annum, until the Company's obligation with respect to the payment of such principal shall be discharged as provided in the Indenture hereinafter mentioned. The interest so payable on any ____________ or ___________ will, subject to certain exceptions provided in the Supplemental Indenture dated as of ____________, _______, be paid to the person in whose name this Bond is registered at the close of business on the immediately preceding ________ or __________, as the case may be. Both principal of, and interest on, this Bond are payable at the agency of the Company in the City of Chicago, Illinois. This Bond shall not be entitled to any benefit under the Indenture or any indenture supplemental thereto, or become valid or obligatory for any purpose, until the form of certificate endorsed hereon shall have been signed by or on behalf of Harris Trust and Savings Bank, the Trustee under the Indenture, or a successor trustee thereto under the Indenture. The provisions of this New Mortgage Bond are continued on the reverse hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. 4 5 IN WITNESS WHEREOF, Illinois Power Company has caused this New Mortgage Bond to be signed (manually or by facsimile signature) in its name by an Authorized Executive Officer, as defined in the Indenture, and its corporate seal (or a facsimile thereof) to be hereto affixed and attested (manually or by facsimile signature) by an Authorized Executive Officer, as defined in this Indenture. Dated ________________, _______ ILLINOIS POWER COMPANY, By__________________________________ Authorized Executive Officer ATTEST: __________________________________ Authorized Executive Officer [FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION] This is one of the Bonds of the series designated therein referred to in the within-mentioned Indenture dated as of November 1, 1992 and Supplemental Indenture dated as of ______________, _______. HARRIS TRUST AND SAVINGS BANK, Trustee, By__________________________________ Authorized Signatory [FORM OF REVERSE OF BOND] This New Mortgage Bond of the _______ Series is one of a duly authorized issue of Bonds of the Company (the "Bonds") in unlimited aggregate principal amount, of the series hereinafter specified, all issued and to be issued under and equally secured by a General Mortgage Indenture and Deed of Trust (the "Indenture"), dated as of November 1, 1992, executed by the Company to Harris Trust and Savings Bank (the "Trustee"), as Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of registered owners of the Bonds and of the Trustee in respect thereof, and the terms and conditions upon which the Bonds are, and are to be, secured. The Bonds may be issued in series, for various principal sums, may mature at different 5 6 times, may bear interest at different rates and may otherwise vary as provided in the Indenture. This New Mortgage Bond of the _______ Series is one of a series designated as the "New Mortgage Bonds, ______% Series Due ________" (the "New Mortgage Bonds of the ________ Series") of the Company, unlimited in aggregate principal amount, issued under and secured by the Indenture and described in the supplemental indenture dated as of ____________, _______ (the "Supplemental Indenture dated as of __________, _______"), between the Company and the Trustee, supplemental to the Indenture. The New Mortgage Bonds of the ________ Series are not subject to redemption prior to maturity. In case an Event of Default, as defined in the Indenture, shall occur, the principal of all the New Mortgage Bonds of the ________ Series at any such time outstanding under the Indenture may be declared or may become due and payable, upon the conditions and in the manner and with the effect provided in the Indenture. The Indenture provides that such declaration may be rescinded under certain circumstances. ARTICLE II. ISSUE OF NEW MORTGAGE BONDS OF THE _____ SERIES. SECTION 1. The Company hereby exercises the right to obtain the authentication of $___________ principal amount of Bonds pursuant to the terms of Section 4.02 of the Indenture. All such Bonds shall be New Mortgage Bonds of the _____ Series. SECTION 2. Such New Mortgage Bonds of the _____ Series may be authenticated and delivered prior to the filing for recordation of this Supplemental Indenture. ARTICLE III. REDEMPTION. New Mortgage Bonds of the _____ Series [are] [are not] subject to redemption prior to maturity [as follows]. ARTICLE IV. THE TRUSTEE The Trustee hereby accepts the trusts hereby declared and provided, and agrees to perform the same upon the terms and conditions in the Indenture set forth and upon the following terms and conditions: 6 7 The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. In general, each and every term and condition contained in Article Eleven of the Indenture shall apply to this Supplemental Indenture with the same force and effect as if the same were herein set forth in full, with such omissions, variations and modifications thereof as may be appropriate to make the same conform to this Supplemental Indenture. ARTICLE V. MISCELLANEOUS PROVISIONS. This Supplemental Indenture may be simultaneously executed in any number of counterparts, each of which when so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, Illinois Power Company has caused this Indenture to be executed on its behalf by an Authorized Executive Officer as defined in the Indenture, and its corporate seal to be hereto affixed and said seal and this Indenture to be attested by an Authorized Executive Officer as defined in the Indenture; and said 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 _____ day of __________, _______. ILLINOIS POWER COMPANY By__________________________________ (CORPORATE SEAL) [President/Vice President] ATTEST: __________________________________ [Secretary/Assistant Secretary] HARRIS TRUST AND SAVINGS BANK, Trustee By__________________________________ (CORPORATE SEAL) [President/Vice President] 7 8 ATTEST: __________________________________ [Secretary/Assistant Secretary] 8 9 STATE OF ILLINOIS ) ) SS.: COUNTY OF __________ ) BE IT REMEMBERED, that on this _____ day of ____________, _______, before me, the undersigned ____________, a Notary Public within and for the County and State aforesaid, personally came _____________________________ and _________________________ of Illinois Power Company, a corporation duly organized, incorporated and existing under the laws of the State of Illinois, who are personally known to me to be such officers, and who are personally known to me to be the same persons who executed as such officers the within instrument of writing, and such persons duly acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act as such _________________ and _____________, respectively, and as the free and voluntary act of said Illinois Power Company for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. __________________________________________________ Notary Public, ________ County, Illinois My Commission Expires _______________. (NOTARIAL SEAL) STATE OF ILLINOIS ) ) COUNTY OF ______ ) SS.: BE IT REMEMBERED, that on this ____ day of _________, ______, before me, the undersigned ________________, a Notary Public within and for the County and State aforesaid, personally came _________________________ and ___________________________, of 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 the same persons who executed as such officers the within instrument of writing, and such persons duly acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act as such ______________ and ________________, respectively, and as the free and voluntary act of said Harris Trust and Savings Bank for the uses and purposes therein set forth. 9 10 IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. __________________________________________________ Notary Public, __________ County, Illinois My Commission Expires ____________. (NOTARIAL SEAL) Return To: This Instrument Was Prepared By: ILLINOIS POWER COMPANY Schiff Hardin & Waite Attention: ________________ 7200 Sears Tower 500 S. 27th Street Chicago, IL 60606 Decatur, IL 62525 10 EX-4.50 14 FORM OF UNSECURED NOTE 1 EXHIBIT 4.50 (Note Form) [Form of Face of Security] No.___________ $______________ ILLINOIS POWER COMPANY (Incorporated Under the Laws of the State of Illinois) _____% Note Due _____ Illinois Power Company, a corporation organized and existing under the laws of the State of Illinois (hereinafter called the "Company," which term shall include any successor corporation as defined in the Indenture hereinafter referred to) for value received hereby promises to pay to _______________________ or registered assigns, the principal sum of _______________________ Dollars ($___________) on __________________. Interest Payment Dates:_____________________ Record Dates:_______________________ See the reverse side hereof for additional provisions, including certain definitions. In Witness Whereof, Illinois Power Company has caused this Note to be signed (manually or by facsimile signature) in its name by its President or any Vice President, and its corporate seal (or a facsimile thereof) to be hereto affixed and attested (manually or by facsimile signature) by its Secretary or an Assistant Secretary. Dated: ______________, _____ Authenticated: ______________, _____ THE CHASE MANHATTAN BANK ILLINOIS POWER COMPANY as Trustee By _______________________________ By _________________________ Authorized Officer Its ____________________ or (SEAL) ___________________________________ By _________________________ as Authenticating Agent Its By ________________________________ Authorized Officer 2 [Form of Reverse of Security] ILLINOIS POWER COMPANY ______% Note Due _____ 1. Interest. Illinois Power Company, an Illinois corporation (the "Company"), promises to pay interest on the principal amount of this Security at the rate per annum shown above. The Company will pay interest semiannually on _______________ and _______________ of each year. Interest on the Securities (as hereinafter defined) will accrue from the most recent date to which interest has been paid or, if no interest has been paid or duly provided for, from ________________. 2. Method of Payment. The Company will pay interest on the Securities (except defaulted interest) to the persons who are registered holders of Securities at the close of business on the ___________ or ____________ next preceding the interest payment date even though Securities are cancelled after the record date and on or before the interest payment date. Holders must surrender Securities to a Paying Agent at a Place of Payment to collect principal payments. The Company will pay principal (and premium, if any) and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may pay principal (and premium, if any) and interest by its check payable in such money. The Company may mail an interest check to a holder's registered address. 3. Paying Agent, Registrar, Place of Payment. The Company maintains an office or agency in the Borough of Manhattan, in the City of New York, New York where the Securities may be presented or surrendered for payment, registration of transfer or exchange and where notices and demands with respect to the Securities may be made. Initially, The Chase Manhattan Bank (the "Trustee"), ______________________, New York, New York _______, will act as Paying Agent and Registrar and the Place of Payment is the office of the Trustee set forth above, Attention: __________________. The Company may appoint Co-Paying Agents or Co-Registrars and change any Paying Agent, Registrar, Place of Payment or Co-Paying Agent or Co-Registrar without notice. The Company may act as Paying Agent, Registrar or Co-Registrar. 4. Indenture. This Security is one of a duly authorized issue of debentures, notes or other evidences of indebtedness of the Company (hereinafter called the "Debt Securities") of the series hereinafter specified, all issued or to be issued under and pursuant to an indenture dated as of July 15, 1986 (hereinafter called the "Indenture"), between the Company and the Trustee to which Indenture and all indentures supplemental thereto (including those provisions of the Trust Indenture Act of 1939 made a part thereof) 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 Debt Securities. The Debt Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any), may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Security is one of a series designated as the ___________ Notes Due _________ of the Company (herein called the "Securities"), limited in aggregate principal amount to $__________ (except for Securities issued in substitution for destroyed, lost or stolen Securities). 2 3 The Securities are unsecured general obligations of the Company. 5. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in denominations of $__________ and whole multiples of $___________ . The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Registrar may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. [The Registrar need not exchange or register the transfer of any Security or portion of a Security selected for redemption. Also, it need not exchange or register the transfer of any Securities for a period of 15 days before a selection of Securities to be redeemed. ] 6. Persons Deemed Owners. The registered holder of a Security may be treated as its owner for all purposes. 7. Amendments and Waivers. Subject to certain exceptions, the Indenture may be amended with the consent of the holders of at least a majority in aggregate principal amount of the Securities together with the consent of the holders of at least a majority in aggregate principal amount of each other series of Debt Securities which are affected by the amendment. Subject to certain exceptions, the Securities may be amended with the consent of the holders of at least a majority in aggregate principal amount of the Securities and any existing default may be waived with the consent of the holders of a majority in aggregate principal amount of the Securities. Without the consent of any Securityholder, the Indenture or the Securities may be amended to cure any ambiguity, defect or inconsistency, to provide for assumption of Company obligations to Securityholders or to make any change that does not adversely affect the rights of any Securityholder. 8. Defaults and Remedies. An Event of Default is: (a) default for 30 days in payment of interest on the Securities; (b) default for 3 Business Days in payment of principal (and premium, if any) on these Securities; (c) failure by the Company for 60 days after notice to it to comply with any of its other agreements in the Indenture or the Securities; and (d) certain events of bankruptcy or insolvency. If an Event of Default occurs and is continuing, the Trustee or the holders of at least 33% in aggregate principal amount of the Securities may declare all the Securities to be due and payable immediately. Securityholders may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before tit enforces the Indenture or the Securities. Subject to certain limitations, holders of a majority in aggregate principal amount of the Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Securityholders notice of any continuing default (except a default in payment of principal (and premium, if any) or interest) if it determines that withholding notice is in their interests. The Company must furnish an annual compliance statement to the Trustee. 9. Trustee Dealings with Company. The Chase Manhattan Bank, the Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its affiliates, and may otherwise deal with the Company or its affiliates, as if it were not Trustee. 10. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or 3 4 the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. 11. Authentication. This Security shall not be valid or obligatory for any purpose or be entitled to any benefit under the Indenture unless the Certificate of Authorization hereon has been executed by the Trustee or an authenticating agent by the manual signature of the Trustee or an authenticating agent. 12. Abbreviations. Customary abbreviations may be used in the name of a Securityholder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to Minors Act). The Company will furnish to any Securityholder upon written request and without charge a copy of the Indenture. Requests may be made to: Illinois Power Company, Attention: Secretary, 500 South 27th Street, Decatur, Illinois 62525. 4 EX-4.51 15 FORM UNSECURED DEBENTURE 1 EXHIBIT 4.51 (Debenture with Sinking Fund Form) [Form of Face of Security] No._____________ $____________ ILLINOIS POWER COMPANY (Incorporated Under the Laws of the State of Illinois) _____% Debenture Due ___________ Illinois Power Company, a corporation organized and existing under the laws of the State of Illinois (hereinafter called the "Company", which term shall include any successor corporation as defined in the Indenture hereinafter referred to) for value received, hereby promises to pay to ________or registered assigns, the principal sum of __________ Dollars ($___________) on ___________. Interest Payment Dates: ______________________ Record Dates:___________________ See the reverse side hereof for additional provisions, including certain definitions. In Witness Whereof, Illinois Power Company has caused this Security to be signed (manually or by facsimile signature) in its name by its President or any Vice President, and corporate seal (or a facsimile thereof) to be hereto affixed and attested (manually or by facsimile signature) by its Secretary or an Assistant Secretary. Dated: ______________, _____ Authenticated: ______________, _____ THE CHASE MANHATTAN BANK ILLINOIS POWER COMPANY as Trustee By _______________________________ By _________________________ Authorized Officer Its ____________________ or (SEAL) ___________________________________ By _________________________ as Authenticating Agent Its By ________________________________ Authorized Officer 2 [Form of Reverse of Security] ILLINOIS POWER COMPANY ______% Debenture Due ____________ 1. Interest. Illinois Power Company, an Illinois corporation (the "Company"), promises to pay interest on the principal amount of this Security at the rate per annum shown above. The Company will pay interest semiannually on ____________ and _________ of each year. Interest on the Securities (as hereinafter defined) will accrue from the most recent (date to which interest has been paid or, if no interest has been paid, from ________________. 2. Method of Payment. The Company will pay interest on the Securities (except defaulted interest) to the persons who are registered holders of Securities at the close of business on the _____________ or _______________ next preceding the interest payment date even though Securities are cancelled after the record date and on or before the interest payment date. Holders must surrender Securities to a Paying Agent at a Place of Payment to collect principal payments. The Company will pay principal (and premium, if any) and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may pay principal (and premium, if any) and interest by its check payable in such to collect principal payments. The Company will pay principal (and premium. if any) and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. However. the Company may pay principal (and premium; if any) and interest by its check payable in such money. The Company may mail an interest check to a holder's registered address. 3. Paying Agent, Registrar, Place of Payment. The Company maintains an office or agency in the Borough of Manhattan in the City of New York, New York where the Securities may be presented or surrendered for payment, registration of transfer or exchange and where notices and demands with respect to the Securities may be made. Initially, The Chase Manhattan Bank (the "Trustee"), _______________, New York, New York ______, will act as Paying Agent and Registrar and the Place of Payment is the office of the Trustee set forth above, Attention: ________________. The Company may appoint Co-Paying Agents or Co-Registrars and change any Paying Agent, Registrar, Place of Payment or Co-Paying Agent or Co-Registrar without notice. The Company may act as Paying Agent, Registrar or Co-Registrar. 4. Indenture. This Security is one of a duly authorized issue of debentures, notes or other evidences of indebtedness of the Company (hereinafter called the "Debt Securities") of the series hereinafter specified, all issued or to be issued under and pursuant to an indenture dated as of July 15, 1986 (herein called the "Indenture"), between the Company and the Trustee to which Indenture and all indentures supplemental thereto (including those provisions of the Trust Indenture Act of 1939 made a part thereof) 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 Debt Securities. The Debt Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption 2 3 provisions (if any), may be subject to different sinking, purchase or analogous funds (if any), may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Security is one of a series designated as the _____% Debentures Due ______________ of the Company (herein called the "Securities"), limited in aggregate principal amount to $___________ (except for Securities issued in substitution for destroyed, lost or stolen Securities). The Securities are unsecured general obligations of the Company. 5. [Optional Redemption. The Company may redeem all the Securities at any time or some of them from time to time at the following redemption prices (expressed in percentages of principal amount), plus accrued interest to the redemption date: YEAR PERCENTAGE YEAR PERCENTAGE _______ _________ _______ __________ _______ _________ _______ __________ _______ _________ _______ __________ _______ _________ _______ __________ _______ _________ _______ __________ However, the Company may not so redeem Securities before ____________ directly or indirectly from or in anticipation of money borrowed by or for the account of the Company or a subsidiary at an interest cost of less than ______% per annum.] 6. [Mandatory Redemption. (a) The Company will redeem $_______ principal amount of Securities on ___________ and on each _______ thereafter through _________ at a redemption price of 100% of principal amount, plus accrued interest to the redemption date. As and for a sinking fund for the retirement of such Securities, the Company will, until all the Securities are paid or payment thereof provided for, deposit with the Trustee, prior to _______ in each of the years _______ to _________, inclusive an amount in cash sufficient to pay the redemption price of the Securities to be redeemed in such year as provided above in this subparagraph (a), less the amount of any credit against such payment received by the Company under the following subparagraph. Each such sinking fund payment shall be applied to the redemption of Securities on such __________ as herein provided. (b) The Company may deliver Securities theretofore acquired by the Company or apply Securities previously redeemed (other than any Securities previously redeemed through the operation of the sinking fund) in satisfaction of all or any part of any sinking fund payment required to be made pursuant to the preceding subparagraph; provided that such Securities shall not have been theretofore used for the purpose of any such credit. Each such Security shall be credited for such purpose by the Trustee at the redemption price set forth in the preceding subparagraph for redemption through the operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. (c) If in any year commencing with the year __________ to and including the year ____________ the Company shall elect to satisfy all or any part of the next ensuing sinking fund payment by crediting Securities pursuant to the preceding subparagraph, then on or before _______________ in such year the Company will deliver to the Trustee an Officers' Certificate specifying the portions of the next ensuing sinking fund payment which are to be satisfied, 3 4 respectively, by payment of cash, by delivering Securities theretofore acquired and by application of previously redeemed Securities, and will deliver to the Trustee any Securities to be so delivered. In case of the failure, on or before __________ in any such year, of the Company to give such notice and to deliver any such Securities, the next ensuing sinking fund obligation shall be paid entirely in cash. On or before ______________ in each such year the Trustee shall select the Securities to be redeemed upon the next ensuing ________________ in the manner specified in the Indenture, and shall cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in the Indenture. Such notice having been duly given, the redemption of such Securities shall be made on such _____________ upon the terms and in the manner set forth herein. ] 7. [Additional Optional Redemption. In addition to redemptions pursuant to paragraph ________, the company may redeem not more than $__________ principal amount of Securities on _________ and on each __________ thereafter through _____________ at a redemption price of 100% of aggregate principal amount, plus accrued interest to the redemption date.] 8. Notice of Redemption. Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of Securities to be redeemed at his registered address. Securities in denominations larger than $_____________ may be redeemed in part but only in whole multiples of $________________. On and after the redemption date interest ceases to accrue on Securities or portions of them called for redemption. 9. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in denominations of $____________ and whole multiples of $____________. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Registrar may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not exchange or register the transfer of any Security or portion of a Security selected for redemption. Also, it need not exchange or register the transfer of any Securities for a period of 15 days before a selection of Securities to be redeemed. 10. Persons Deemed Owners. The registered holder of a Security may be treated as its owner for all purposes. 11. Amendments and Waivers. Subject to certain exceptions, the Indenture may be amended with the consent of the holders of at least a majority in aggregate principal amount of the Securities together with the consent of the holders of at least a majority in aggregate principal amount of each other series of Debt Securities which are affected by the amendment. Subject to certain exceptions, the Securities may be amended with the consent of the holders of at least a majority in aggregate principal amount of the Securities and any existing default may be waived with the consent of the holders of a majority in aggregate principal amount of the Securities. Without the consent of any Securityholder, the Indenture or the Securities may be amended to cure any ambiguity, defect or inconsistency, to provide for assumption of Company obligations to Securityholders or to make any change that does not adversely affect the rights of any Securityholder. 4 5 12. Defaults and Remedies. An Event of Default is: (a) default for 30 days in payment of interest on the Securities; (b) default for 3 Business Days in payment of principal (and premium, if any) on them; (c) failure by the Company for 60 days alter notice to it to comply with any of its other agreements in the Indenture or the Securities; and (d) certain events of bankruptcy or insolvency. If an Event of Default occurs and is continuing, the Trustee or the holders of at least 33% in aggregate principal amount of Securities may declare all the Securities to be due and payable immediately. Securityholders may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, holders of a majority in aggregate principal amount of the Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Securityholders notice of any continuing default (except a default in payment of principal (and premium, if any) or interest) if it determines that withholding notice is in their interests. The Company must furnish an annual compliance statement to the Trustee. 13. Trustee Dealings with Company. The Chase Manhattan Bank, the Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its affiliates, and may otherwise deal with the Company or its affiliates, as if it were not Trustee. 14. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim made on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. 15. Authentication. This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. 16. Abbreviations. Customary abbreviations may be used in the name of a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A(= Uniform Gifts to Minors Act). The Company will furnish to any Securityholder upon written request and without charge a copy of the Indenture. Requests may be made to: Illinois Power Company, Attention: Secretary, 500 South 27th Street, Decatur, Illinois 62525. 5 EX-5 16 OPINION OF SCHIFF HARDIN & WAITE 1 Illinois Power Company January 22, 1999 Page 2 EXHIBIT 5 [Schiff Hardin & Waite Letterhead] Robert J. Regan (312) 258-5606 January 22, 1999 Illinois Power Company 500 S. 27th Street Decatur, Illinois 62525-1805 RE: $250,000,000 PRINCIPAL AMOUNT OF DEBT SECURITIES Ladies and Gentlemen: We are acting as counsel for Illinois Power Company (the "Company") in connection with the registration of an aggregate of $250,000,000 principal amount of debt securities, including the Company's New Mortgage Bonds (the "New Mortgage Bonds") or other debt securities (the "New Unsecured Debt") in one or more series. Each series of New Mortgage Bonds would be issued pursuant to the General Mortgage Indenture and Deed of Trust dated as of November 1, 1992 between the Company and Harris Trust and Savings Bank, as Trustee, and a supplemental indenture (the "New Mortgage Supplemental Indenture"), providing for the issuance of such series (the General Mortgage Indenture and Deed of Trust and all indentures supplemental thereto are collectively called the "New Mortgage"). Each series of New Unsecured Debt would be issued pursuant to the Indenture dated as of July 15, 1986 between the Company and The Chase Manhattan Bank, as Trustee, and a supplemental indenture (the "Unsecured Supplemental Indenture"), or a resolution duly adopted by the Board of Directors of the Company, providing for the issuance of such series. As counsel for the Company, we have examined such corporate records of the Company and have made such inquiry and further investigation as we deemed necessary in order to enable us to render this opinion. We have assumed the continued exemption of the contemplated transactions from the requirements of the Public Utility Holding Company Act of 1935, as amended to date, the genuineness of all signatures, the authenticity of all documents submitted to us as original counterparts, and the conformity to the originals of all documents submitted to us as certified or photostatic copies. Based upon the foregoing, we are of the opinion that: 1. The Company is a corporation validly organized and existing under and by virtue of the laws of the State of Illinois. 2. If the debt securities are New Mortgage Bonds, when the Registration Statement on Form S-3 relating to the New Mortgage Bonds and New Unsecured Debt (the "Registration Statement") has become effective and providing no stop order shall have been issued by the Securities and Exchange Commission relating thereto, and when the Illinois Commerce Commission shall have entered an order 2 Illinois Power Company January 22, 1999 Page 2 authorizing the execution and delivery of a New Mortgage Supplemental Indenture or New Mortgage Supplemental Indentures and the issuance and sale of one or more series of New Mortgage Bonds, and said order shall remain in effect, then upon the execution and delivery of the New Mortgage Supplemental Indenture or New Mortgage Supplemental Indentures and the issuance and sale of one or more series of the New Mortgage Bonds pursuant to the due authorization by the Board of Directors of the Company, such New Mortgage Bonds will be the legal and binding obligations of the Company, enforceable in accordance with their terms, subject to the due filing of the New Mortgage Supplemental Indenture or New Mortgage Supplemental Indentures relating thereto for record in the manner prescribed with respect to real estate mortgages and the issuance and sale of the New Mortgage Bonds thereunder before the intervention of any lien to which the New Mortgage is not expressly made subject, or not expressly excepted by the New Mortgage, and subject to the reservations, encumbrances and restrictions recited in the granting clause of, and as provided in, the New Mortgage or referred to in the Prospectus included in the Registration Statement under the subcaption "Security" under the caption "Description of the New Mortgage Bonds," and except as the legality, binding effect or enforceability of the New Mortgage Bonds may be limited or otherwise affected by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors' rights generally, or (b) the application of general principles of equity (regardless of whether the application of such principles is considered in a proceeding in equity or at law). 3. If the debt securities are New Unsecured Debt, when the Registration Statement has become effective and providing no stop order shall have been issued by the Securities and Exchange Commission relating thereto, and when the Illinois Commerce Commission shall have entered an order authorizing the issuance and sale of New Unsecured Debt, and said order shall remain in effect, then upon the execution and delivery of the Unsecured Supplemental Indenture or Unsecured Supplemental Indentures (if applicable) and the issuance and sale of one or more series of the New Unsecured Debt pursuant to the due authorization by the Board of Directors of the Company, such New Unsecured Debt will be the legal and binding obligation of the Company enforceable in accordance with its terms, except as the legality, binding effect or enforceability of the New Unsecured Debt may be limited or otherwise affected by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or similar laws affecting creditors' rights generally, or (b) the application of general principles of equity (regardless of whether the application of such principles is considered in a proceeding in equity or at law). We hereby consent to the use of this opinion as an exhibit to the Registration Statement to be filed with the Securities and Exchange Commission under the Securities Act of 1933 and the reference to us under the caption "Legal Opinions" in the Prospectus contained in the Registration Statement. Very truly yours, SCHIFF HARDIN & WAITE By: /s/ Robert J. Regan ------------------------------- RJR: Robert J. Regan EX-12 17 STMNT OF COMPUT OF RATIO OF EARNINGS 1 EXHIBIT 12 ILLINOIS POWER COMPANY STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (Thousands of Dollars)
Year Ended December 31, ------------------------------------------------------------------------------------- 1993 1993** 1994 1995 1996 1997 1997*** ---------- --------- --------- --------- --------- --------- --------- Earnings Available for Fixed Charges: Net Income (Loss) $ (56,038) $ (56,038) $ 180,242 $ 182,713 $ 228,618 $ (44,173) $ (44,173) Add: Income Taxes: Current 25,260 25,260 58,354 98,578 163,873 72,680 76,680 Deferred - Net 82,057 82,057 71,177 34,137 (16,028 36,963 36,963 Allocated income taxes (12,599) (12,599) (8,285) (8,417) (2,642) (1,446) (1,446) Investment tax credit - deferred (782) (782) (11,331) (6,894) (7,278) (7,278) (7,278) Income tax effect of disallowed costs (70,638) (70,638) -- -- -- -- -- Income tax effect of FAS 71 write-off -- -- -- -- -- (117,998) (117,998) Interest on long-term debt 154,110 154,110 135,115 125,581 118,438 109,595 109,595 Amortization of debt expense and premium-net, and other interest charges 17,007 17,007 15,826 29,558 22,325 26,260 26,260 One-third of all rentals (Estimated to be representative of the interest components) 5,992 5,992 5,847 5,221 4,346 4,229 4,229 Interest on in-core fuel 6,174 6,174 7,185 6,716 4,757 3,842 3,842 Disallowed Clinton plant costs -- 270,956 -- -- -- -- -- FAS 71 Regulatory Write-Offs -- -- -- -- -- -- 313,030 --------- --------- --------- --------- --------- --------- --------- Earnings (loss) available for fixed charges $ 150,543 $ 421,499 $ 454,130 $ 467,193 $ 516,409 $ 82,674 $ 395,704 ========= ========= ========= ========= ========= ========= ========= Fixed charges: Interest on long-term debt 154,110 $ 154,110 $ 135,115 $ 125,581 $ 118,438 $ 109,595 $ 109,595 Amortization of debt expense and premium-net, and other interest charges 27,619 27,619 25,381 38,147 28,957 31,204 31,204 One-third of all rentals (Estimated to be representative of the interest component) 5,992 5,992 5,847 5,221 4,346 4,229 4,229 --------- --------- --------- --------- --------- --------- --------- Total Fixed Charges $ 187,721 $ 187,721 $ 166,343 $ 168,949 $ 151,741 $ 145,028 $ 145,028 ========= ========= ========= ========= ========= ========= ========= Ratio of earnings to fixed charges 0.80* 2.25 2.73 2.77 3.40 0.57* 2.73 ========= ========= ========= ========= ========= ========= ========= Twelve Months Ended September ------------------------- 1998 1998*** ------------------------- Earnings Available for Fixed Charges: Net Income (Loss) $(197,357) $(197,357) Add: Income Taxes: Current 25,854 25,854 Deferred - Net (34,073) (34,073) Allocated income taxes (2,118) (2,118) Investment tax credit ( deferred (7,278) (7,278) Income tax effect of disallowed costs -- -- Income tax effect of FAS 71 write-off (117,998) (117,998) Interest on long-term debt 104,971 104,971 Amortization of debt expense and premium-net, and other interest charges 29,632 29,632 One-third of all rentals (Estimated to be representative of the interest components) 4,090 4,090 Interest on in-core fuel 3,816 3,816 Disallowed Clinton plant costs -- -- FAS 71 Regulatory Write-Offs -- 313,030 -------- --------- Earnings (loss) available for fixed charges $(190,461) $ 122,569 ========= ========= Fixed charges: Interest on long-term debt $ 104,971 $ 104,971 Amortization of debt expense and premium-net, and other interest charges 37,326 37,326 One-third of all rentals (Estimated to be representative of the interest component) 4,090 4,090 --------- --------- Total Fixed Charges $ 146,387 $ 146,387 ========= ========= Ratio of earnings to fixed charges (1.30)* 0.84 ========= =========
* Earnings are inadequate to cover fixed charges. Additional earnings (thousands) for 1993, 1997 and Twelve Months Ended September 30, 1998 of $37,178, $62,354, and $336,848. ** Supplemental ratio of earnings to fixed charges presented to exclude nonrecurring item - Disallowed Clinton plant costs. *** Supplemental ratio of earnings to fixed charges presented to exclude write-off related to the discontinued application of SFAS 71, "Accounting for the Effects of Certain Types of Regulation" for the generation segment of the business. EX-23.1 18 COSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement on Form S-3 of our report dated February 12, 1998, which appears on page a-10 of the 1997 Annual Report to Shareholders of Illinois Power Company, which is incorporated by reference in Illinois Power Company's Annual Report on Form 10-K for the year ended December 31, 1997. We also consent to the incorporation by reference of our report on the Financial Statement Schedules, which appears on page 27 of such Annual Report on Form 10-K. We also consent to the reference to us under the heading "Experts" in such Prospectus. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP St. Louis, Missouri January 22, 1999 EX-26.1 19 FORM T-1 1 EXHIBIT 26.1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 Statement of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) ______ HARRIS TRUST AND SAVINGS BANK (Name of Trustee) Illinois 36-1194448 (State of Incorporation) (I.R.S. Employer Identification No.) 111 West Monroe Street, Chicago, Illinois 60603 (Address of principal executive offices) Judith Bartolini, Harris Trust and Savings Bank, 311 West Monroe Street, Chicago, Illinois, 60606 312-461-2527 phone 312-461-3525 facsimile (Name, address and telephone number for agent for service) ILLINOIS POWER COMPANY (Obligor) Illinois 37-0344645 (State of Incorporation) (I.R.S. Employer Identification No.) 500 South 27th Street Decatur Illinois 62525 (Address of principal executive offices) New Mortgage Bonds (Title of indenture securities) 2 1. GENERAL INFORMATION. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. Commissioner of Banks and Trust Companies, State of Illinois, Springfield, Illinois; Chicago Clearing House Association, 164 West Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Harris Trust and Savings Bank is authorized to exercise corporate trust powers. 2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee, describe each such affiliation. The Obligor is not an affiliate of the Trustee. 3. through 15. NO RESPONSE NECESSARY 16. LIST OF EXHIBITS. 1. A copy of the articles of association of the Trustee as now in effect which includes the authority of the trustee to commence business and to exercise corporate trust powers. A copy of the Certificate of Merger dated April 1, 1972 between Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which constitutes the articles of association of the Trustee as now in effect and includes the authority of the Trustee to commence business and to exercise corporate trust powers was filed in connection with the Registration Statement of Louisville Gas and Electric Company, File No. 2-44295, and is incorporated herein by reference. 2. A copy of the existing by-laws of the Trustee. A copy of the existing by-laws of the Trustee was filed in connection with the Registration Statement of Commercial Federal Corporation, File No. 333-20711, and is incorporated herein by reference. 3. The consents of the Trustee required by Section 321(b) of the Act. (included as Exhibit A on page 2 of this statement) 4. A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority. (included as Exhibit B on page 3 of this statement) 1 3 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 12th day of January, 1999. HARRIS TRUST AND SAVINGS BANK By: /s/ J. Bartolini ----------------------- J. Bartolini Vice President EXHIBIT A The consents of the trustee required by Section 321(b) of the Act. Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that reports of examinations of said trustee by Federal and State authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. HARRIS TRUST AND SAVINGS BANK By: /s/ J. Bartolini ----------------------- J. Bartolini Vice President 2 4 EXHIBIT B Attached is a true and correct copy of the statement of condition of Harris Trust and Savings Bank as of September 30, 1998, as published in accordance with a call made by the State Banking Authority and by the Federal Reserve Bank of the Seventh Reserve District. [LOGO OF HARRIS BANK] Harris Trust and Savings Bank 111 West Monroe Street Chicago, Illinois 60603 of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of business on September 30, 1998, a state banking institution organized and operating under the banking laws of this State and a member of the Federal Reserve System. Published in accordance with a call made by the Commissioner of Banks and Trust Companies of the State of Illinois and by the Federal Reserve Bank of this District. Bank's Transit Number 71000288
THOUSANDS ASSETS OF DOLLARS Cash and balances due from depository institutions: Non-interest bearing balances and currency and coin....................... $ 1,097,714 Interest bearing balances................................................. $ 213,712 Securities:....................................................................... a. Held-to-maturity securities $ 0 b. Available-for-sale securities $ 5,036,734 Federal funds sold and securities purchased under agreements to resell $ 48,950 Loans and lease financing receivables: Loans and leases, net of unearned income.................................. $ 9,111,098 LESS: Allowance for loan and lease losses................................ $ 104,900 ----------- Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b)...................................................... $ 9,006,198 Assets held in trading accounts................................................... $ 202,008 Premises and fixed assets (including capitalized leases).......................... $ 245,290 Other real estate owned........................................................... $ 365 Investments in unconsolidated subsidiaries and associated companies............... $ 41 Customer's liability to this bank on acceptances outstanding...................... $ 34,997 Intangible assets................................................................. $ 260,477 Other assets...................................................................... $ 1,148,163 ----------- TOTAL ASSETS $17,294,649 ===========
3 5
LIABILITIES Deposits: In domestic offices........................................................................ $9,467,895 Non-interest bearing.................................................................. $2,787,471 Interest bearing...................................................................... $6,680,424 In foreign offices, Edge and Agreement subsidiaries, and IBF's............................. $1,268,759 Non-interest bearing.................................................................. $ 23,329 Interest bearing...................................................................... $1,245,430 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds purchased & securities sold under agreements to repurchase...................... $3,118,548 Trading Liabilities 110,858 Other borrowed money:......................................................................... a. With remaining maturity of one year or less $1,202,050 b. With remaining maturity of more than one year $0 Bank's liability on acceptances executed and outstanding $34,997 Subordinated notes and debentures............................................................. $225,000 Other liabilities............................................................................. $530,224 -------------- TOTAL LIABILITIES $15,958,331 EQUITY CAPITAL ============== Common stock.................................................................................. $100,000 Surplus....................................................................................... $604,834 a. Undivided profits and capital reserves.................................................... $580,271 b. Net unrealized holding gains (losses) on available-for-sale securities $51,213 -------------- TOTAL EQUITY CAPITAL $1,336,318 ============== Total liabilities, limited-life preferred stock, and equity capital........................... $17,294,649 ==============
I, Pamela Piarowski, Vice President of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. PAMELA PIAROWSKI 10/29/98 We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and, to the best of our knowledge and belief, has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and the Commissioner of Banks and Trust Companies of the State of Illinois and is true and correct. EDWARD W. LYMAN, ALAN G. McNALLY, CHARLES SHAW Directors. 4 EX-26.2 20 FORM T-1 1 EXHIBIT 26.2 ___________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 _________________________ FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE ___________________________________________ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________ ________________________________________ THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) NEW YORK 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 PARK AVENUE NEW YORK, NEW YORK 10017 (Address of principal executive offices) (Zip Code) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) ____________________________________________ ILLINOIS POWER COMPANY (Exact name of obligor as specified in its charter) ILLINOIS 37-0988139 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification No.) 500 SOUTH 27TH STREET DECATUR, IL 62525-1805 (Address of principal executive offices) (Zip Code) ____________________________________________ UNSECURED DEBT SECURITIES (Title of the indenture securities) ___________________________________________________________________ 2 GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. 3 Item 16. List of Exhibits List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 12th day of January, 1999. THE CHASE MANHATTAN BANK By /s/ Gregory P. Shea ------------------------- Gregory P. Shea Senior Trust Officer - 3 - 4 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business September 30, 1998, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS ASSETS MILLIONS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin .................................. $11,951 Interest-bearing balances .......................... 4,551 Securities: ............................................. Held to maturity securities............................... 1,740 Available for sale securities............................. 48,537 Federal funds sold and securities purchased under agreements to resell ............................... 29,730 Loans and lease financing receivables: Loans and leases, net of unearned income............ $127,379 Less: Allowance for loan and lease losses........... 2,719 Less: Allocated transfer risk reserve .............. 0 Loans and leases, net of unearned income, allowance, and reserve ............................. 124,660 Trading Assets ........................................... 51,549 Premises and fixed assets (including capitalized leases)............................................. 3,009 Other real estate owned .................................. 272 Investments in unconsolidated subsidiaries and associated companies................................ 300 Customers' liability to this bank on acceptances outstanding ........................................ 1,329 Intangible assets ........................................ 1,429 Other assets ............................................. 13,563 -------- TOTAL ASSETS ............................................. $292,620 ========
- 4 - 5 LIABILITIES Deposits In domestic offices .................................. $ 98,760 Noninterest-bearing .................................. $ 39,071 Interest-bearing ..................................... 59,689 -------- In foreign offices, Edge and Agreement, subsidiaries and IBF's................................ 75,403 Noninterest-bearing .................................. $ 3,877 Interest-bearing ..................................... 71,526 Federal funds purchased and securities sold under agreements to repurchase .............................................. 34,471 Demand notes issued to the U.S. Treasury ................... 1,000 Trading liabilities ........................................ 41,589 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less ........ 3,781 With a remaining maturity of more than one year through three years............................... 213 With a remaining maturity of more than three years.... 104 Bank's liability on acceptances executed and outstanding.... 1,329 Subordinated notes and debentures .......................... 5,408 Other liabilities .......................................... 12,041 TOTAL LIABILITIES .......................................... 274,099 -------- EQUITY CAPITAL Perpetual preferred stock and related surplus............... 0 Common stock ............................................... 1,211 Surplus (exclude all surplus related to preferred stock)... 10,441 Undivided profits and capital reserves ..................... 6,287 Net unrealized holding gains (losses) on available-for-sale securities ........................... 566 Cumulative foreign currency translation adjustments ........ 16 TOTAL EQUITY CAPITAL ....................................... 18,521 -------- TOTAL LIABILITIES AND EQUITY CAPITAL ....................... $292,620 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. JOSEPH L. SCLAFANI We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WALTER V. SHIPLEY ) THOMAS G. LABRECQUE ) DIRECTORS WILLIAM B. HARRISON, JR.) -5- -----END PRIVACY-ENHANCED MESSAGE-----