EXHIBIT 4.3
FORM OF INDENTURE
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ILLINOIS POWER SPECIAL PURPOSE TRUST,
Note Issuer
and
XXXXXX TRUST AND SAVINGS BANK,
Indenture Trustee
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INDENTURE
Dated as of December 1, 1998
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Issuable in Series
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TABLE OF CONTENTS
PAGE
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ARTICLE I - DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . .3
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . .3
SECTION 1.02. Incorporation by Reference of Trust Indenture Act. . . . . . . .3
SECTION 1.03. Rules of Construction. . . . . . . . . . . . . . . . . . . . . .3
ARTICLE II - THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
SECTION 2.01. Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
SECTION 2.02. Denominations; Notes Issuable in Series. . . . . . . . . . . . .4
SECTION 2.03. Execution Authentication and Delivery. . . . . . . . . . . . . .6
SECTION 2.04. Temporary Notes. . . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 2.05. Registration; Registration of Transfer and Exchange of
Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Notes . . . . . . . . . . .8
SECTION 2.07. Persons Deemed Owner . . . . . . . . . . . . . . . . . . . . . .8
SECTION 2.08. Payment of Principal, Premium if any, and Interest; Interest
on Overdue Principal; Principal, Premium, if any, and
Interest Rights Preserved. . . . . . . . . . . . . . . . . . . .9
SECTION 2.09. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.10. Outstanding Amount; Authentication and Delivery of Notes . . . 10
SECTION 2.11. Book-Entry Notes . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.12. Notices to Clearing Agency . . . . . . . . . . . . . . . . . . 18
SECTION 2.13. Definitive Notes . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.14. CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.15. Letter of Representations. . . . . . . . . . . . . . . . . . . 19
SECTION 2.16. Release of Note Collateral . . . . . . . . . . . . . . . . . . 19
SECTION 2.17. Special Terms Applicable to Subsequent Transfers of Certain
Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.18. Tax Treatment. . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.19. State Pledge . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE III - COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.01. Payment of Principal, Premium, if any, and Interest. . . . . . 21
SECTION 3.02. Maintenance of Office or Agency. . . . . . . . . . . . . . . . 22
SECTION 3.03. Money for Payments To Be Held in Trust . . . . . . . . . . . . 22
SECTION 3.04. Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.05. Protection of Note Collateral. . . . . . . . . . . . . . . . . 23
SECTION 3.06. Opinions as to Note Collateral . . . . . . . . . . . . . . . . 24
SECTION 3.07. Performance of Obligations; Servicing SEC Filings. . . . . . . 25
SECTION 3.08. Certain Negative Covenants . . . . . . . . . . . . . . . . . . 27
SECTION 3.09. Annual Statement as to Compliance. . . . . . . . . . . . . . . 27
(i)
SECTION 3.10. Note Issuer May Consolidate, etc., Only on Certain Terms . . . 28
SECTION 3.11. Successor or Transferee. . . . . . . . . . . . . . . . . . . . 30
SECTION 3.12. No Other Business. . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.13. No Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.14. Servicer's Obligations . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.15. Guarantees Loans Advances and Other Liabilities. . . . . . . . 30
SECTION 3.16. Capital Expenditures.. . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.17. Restricted Payments. . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.18. Notice of Events of Default. . . . . . . . . . . . . . . . . . 31
SECTION 3.19. Further Instruments and Acts . . . . . . . . . . . . . . . . . 31
SECTION 3.20. Purchase of Subsequent Transition Property . . . . . . . . . . 31
ARTICLE IV - SATISFACTION AND DISCHARGE; DEFEASANCE. . . . . . . . . . . . . . . . 33
SECTION 4.01. Satisfaction and Discharge of Indenture Defeasance . . . . . . 33
SECTION 4.02. Conditions to Defeasance . . . . . . . . . . . . . . . . . . . 35
SECTION 4.03. Application of Trust Money . . . . . . . . . . . . . . . . . . 36
SECTION 4.04. Repayment of Moneys Held by Paying Agent . . . . . . . . . . . 36
ARTICLE V - REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment . . . . . . 38
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.04. Remedies; Priorities . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.05. Optional Preservation of the Note Collateral . . . . . . . . . 42
SECTION 5.06. Limitation of Suits. . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.07. Unconditional Rights of Holders To Receive Principal,
Premium, if any, and Interest. . . . . . . . . . . . . . . . . 43
SECTION 5.08. Restoration of Rights and Remedies . . . . . . . . . . . . . . 43
SECTION 5.09. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . 43
SECTION 5.10. Delay or Omission Not a Waiver . . . . . . . . . . . . . . . . 43
SECTION 5.11. Control by Holders . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.12. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . 44
SECTION 5.13. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.14. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . 45
SECTION 5.15. Action on Notes. . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.16. Performance and Enforcement of Certain Obligations . . . . . . 45
ARTICLE VI - THE INDENTURE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.01. Duties of Indenture Trustee. . . . . . . . . . . . . . . . . . 46
SECTION 6.02. Rights of Indenture Trustee. . . . . . . . . . . . . . . . . . 48
SECTION 6.03. Individual Rights of Indenture Trustee . . . . . . . . . . . . 48
SECTION 6.04. Indenture Trustee's Disclaimer . . . . . . . . . . . . . . . . 48
(ii)
SECTION 6.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.06. Reports by Indenture Trustee to Holders. . . . . . . . . . . . 49
SECTION 6.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . 49
SECTION 6.08. Replacement of Indenture Trustee . . . . . . . . . . . . . . . 50
SECTION 6.09. Successor Indenture Trustee by Merger. . . . . . . . . . . . . 51
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee. . . . . . . . . 51
SECTION 6.11. Eligibility; Disqualification. . . . . . . . . . . . . . . . . 53
SECTION 6.12. Preferential Collection of Claims Against Note Issuer. . . . . 53
SECTION 6.13. Representations and Warranties of Indenture Trustee. . . . . . 53
ARTICLE VII - HOLDERS' LISTS AND REPORTS . . . . . . . . . . . . . . . . . . . . . 53
SECTION 7.01. Note Issuer To Furnish Indenture Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . . . . . 53
SECTION 7.02. Preservation of Information; Communications to Holders . . . . 54
SECTION 7.03. Reports by Note Issuer . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.04. Reports by Indenture Trustee . . . . . . . . . . . . . . . . . 55
ARTICLE VIII - ACCOUNTS, DISBURSEMENTS AND RELEASES. . . . . . . . . . . . . . . . 55
SECTION 8.01. Collection of Money. . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.02. Collection Account . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.03. General Provisions Regarding the Collection Account. . . . . . 58
SECTION 8.04. Release of Note Collateral . . . . . . . . . . . . . . . . . . 59
SECTION 8.05. Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.06. Reports by Independent Accountants . . . . . . . . . . . . . . 60
ARTICLE IX - SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 9.01. Supplemental Indentures Without Consent of Holders . . . . . . 60
SECTION 9.02. Supplemental Indentures with Consent of Holders. . . . . . . . 62
SECTION 9.03. Execution of Supplemental Indentures.. . . . . . . . . . . . . 63
SECTION 9.04. Effect of Supplemental Indenture . . . . . . . . . . . . . . . 64
SECTION 9.05. Conformity with Trust Indenture Act. . . . . . . . . . . . . . 64
SECTION 9.06. Reference in Notes to Supplemental Indentures. . . . . . . . . 64
ARTICLE X - REDEMPTION OF NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.01. Optional Redemption by Note Issuer . . . . . . . . . . . . . . 64
SECTION 10.02. Form of Optional Redemption Notice . . . . . . . . . . . . . . 65
SECTION 10.03. Notes Payable on Optional Redemption Date. . . . . . . . . . . 65
ARTICLE XI - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 11.01. Compliance Certificates and Opinions, etc. . . . . . . . . . . 66
SECTION 11.02. Form of Documents Delivered to Indenture Trustee . . . . . . . 67
SECTION 11.03. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 11.04. Notices, etc. to Indenture Trustee, Note Issuer and
(iii)
Rating Agencies . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 11.05. Notices to Holders Waiver. . . . . . . . . . . . . . . . . . . 69
SECTION 11.06. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . 70
SECTION 11.07. Effect of Headings and Table of Contents . . . . . . . . . . . 70
SECTION 11.08. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 70
SECTION 11.09. Separability . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 11.10. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . 70
SECTION 11.11. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 11.12. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.13. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.14. Recording of Indenture . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.15. Trust Obligation . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.16. No Recourse to Note Issuer . . . . . . . . . . . . . . . . . . 71
SECTION 11.17. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.18. No Petition. . . . . . . . . . . . . . . . . . . . . . . . . . 72
EXHIBIT A-1 -- Form of Notes
EXHIBIT B -- Form of Trust Issuance Certificate
EXHIBIT C -- Form of Series Supplement
(iv)
CROSS REFERENCE TABLE
TIA SECTION INDENTURE SECTION
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310 (a)(1) 6.11
(a)(2) 6.11
(a)(3) 6.10
(a)(4) N.A.
(a)(5) 6.11
(b) 6.11
(c) N.A.
311 (a) 6.12
(b) 6.12
(c) N.A.
312 (a) 7.01, 7.02
(b) 7.02
(c) 7.02
313 (a) 7.04
(b)1 7.04
(b)2 7.04
(c) 7.04
(d) 7.04
314 (a) 7.03(a), 3.09
(b) 3.06
(c)1 2.10, 4.01, 11.01(a)
(c)2 2.10, 4.01, 11.01(a)
(c)3 2.10, 4.01, 11.01(a)
(d) 2.10, 11.01(a)
(e) 11.01(a)
(f) 11.01(a)
315 (a) 6.01(b)
(b) 6.05
(c) 6.01(a)
(d) 6.02, 6.01(c)
(e) 5.13
316 (a)last Appendix A "Outstanding"
sentence
(a)(1)(A) 5.11
(a)(1)(B) 5.12
(a)(2) Omitted
(b) 5.07
(c) Appendix A "Record Date"
317 (a)(1) 5.03(b)
(a)(2) 5.03(c)
(b) 3.03
318 (a) 11.07
N.A. means Not Applicable.
Note: This cross reference table shall not, for any purpose, be deemed to be
part of this Indenture.
vi
INDENTURE dated as of December 1, 1998, between ILLINOIS POWER
SPECIAL PURPOSE TRUST, a Delaware business trust (the "Note Issuer"), and
Xxxxxx Trust and Savings Bank, a banking corporation organized under the laws
of the State of Illinois, as trustee (the "Indenture Trustee").
In consideration of the mutual agreements herein contained, each
party agrees as follows for the benefit of the other and each of the Holders:
RECITALS OF THE NOTE ISSUER
The Note issuer has duly authorized the execution and delivery of
this Indenture and the creation and issuance of Notes issuable in Series
hereunder, each Series to be of substantially the tenor set forth herein and
in the respective Trust Issuance Certificate or Series Supplement, if any,
relating to each such Series of Notes.
The Notes shall be non-recourse obligations and shall be secured by
and payable solely out of the proceeds of the Intangible Transition Property
and the other Note Collateral. If and to the extent that such proceeds of
Intangible Transition Property and the other Note Collateral are insufficient
to pay all amounts owing with respect to the Notes, then, except as otherwise
expressly provided hereunder, the Holders of the Notes shall have no Claim in
respect of such insufficiency against the Note Issuer, and the Holders, by
their acceptance of the Notes, waive any such Claim.
All things necessary to (a) make the Notes, when executed by the
Note Issuer and authenticated and delivered by the Indenture Trustee
hereunder and duly issued by the Note Issuer, valid obligations, and (b) make
this Note Indenture a valid agreement of the Note Issuer, in each case, in
accordance with their respective terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Note Issuer, in consideration of the premises herein
contained and of the purchase of the Notes by the Holders and of other good
and lawful consideration, the receipt and sufficiency of which are hereby
acknowledged, and to secure, equally and ratably without prejudice, priority
or distinction, except as specifically otherwise set forth in this Indenture,
the payment of the Notes, the payment of all other amounts due under or in
connection with this Indenture and the performance and observance of all of
the covenants and conditions contained herein or in such Notes, has hereby
executed and delivered this Indenture and by these presents does hereby
convey, grant and assign, transfer and pledge, in each case, in and unto the
Indenture Trustee, its successors and assigns forever, for the benefit of the
Holders, all and singular the property hereinafter described (hereinafter
referred to as the "NOTE COLLATERAL"), to wit:
GRANTING CLAUSE
The Note Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Holders of the
Notes from time to time issued and outstanding, all of the Note Issuer's
right, title and interest in and to (a) the Intangible Transition Property
created under and pursuant to the 1998 Funding Order, and transferred by the
Grantee to the Note Issuer pursuant to the Sale Agreement (including, to the
fullest extent permitted by law, all revenues, collections, claims, rights,
payments, money or proceeds of or arising from the IFCs authorized in the
1998 Funding Order and any Tariffs filed pursuant thereto and any Allocable
IFC Revenue Amounts), (b) all Intangible Transition Property created under
and pursuant to any Subsequent Funding Order, and transferred by the Grantee
to the Note Issuer pursuant to a Subsequent Sale Agreement (including, to the
fullest extent permitted by law, all revenues, collections, claims, rights,
payments, money or proceeds of or arising from the IFCs authorized in such
Subsequent Funding Order and any Subsequent Tariffs filed pursuant thereto
and any Allocable IFC Revenue Amounts), (c) the Grant Agreement, the Sale
Agreement and all property and interests in property transferred under the
Sale Agreement, (d) each Subsequent Grant Agreement, Subsequent Sale
Agreement and all property and interests in property transferred under any
Subsequent Sale Agreement, (e) the Servicing Agreement, (f) the Collection
Account, all subaccounts thereof and all amounts of cash or investment
property on deposit therein or credited thereto from time to time, (g) any
interest rate exchange agreement which is executed in connection with the
issuance of Floating Rate Notes, if any, (h) all rights to compel the
Servicer to file for and obtain adjustments to the IFCs in accordance with
Section 18-104(d) of the Funding Law, the 1998 Funding Order or any
Subsequent Funding Order or any Tariff or Subsequent Tariff filed in
connection therewith, (i) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing, (j) all general
intangibles, chattel paper and accounts of the Note Issuer, and (k) all
payments on or under, and all proceeds in respect of, any or all of the
foregoing; it being understood that the following do not constitute Note
Collateral: (i) cash that has been released pursuant to Section 8.02(d)(xiii)
following retirement of all Outstanding Series of Notes, (ii) net investment
earnings which have been released to the Note Issuer pursuant to Section
8.02(d), and (iii) amounts deposited with the Note Issuer on any Series
Issuance Date, including the Closing Date, for payment of costs of issuance
with respect to the related Series (together with any interest earnings
thereon), it being understood that such amounts described in clauses (i) and
(iii) above shall not be subject to Section 3.17.
The foregoing Grant is made in trust to secure the payment of
principal of and premium, if any, interest on, and any other amounts owing in
respect of, the Notes equally and ratably without prejudice, priority or
distinction, except as expressly provided in this Indenture, and to secure
compliance with the provisions of this Indenture with respect to the Notes,
all as provided in this Indenture. This Indenture constitutes a security
agreement within the meaning of the UCC to the extent that, under Illinois
law, the provisions of the UCC are applicable hereto.
2
The Indenture Trustee, as trustee on behalf of the Holders,
acknowledges such Grant and accepts the trusts under this Indenture in
accordance with the provisions of this Indenture.
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED between the parties
hereto that all Notes are to be issued, countersigned and delivered and that
all of the Note Collateral is to be held and applied, subject to the further
covenants, conditions, releases, uses and trusts hereinafter set forth, and
the Note Issuer, for itself and any successor, does hereby covenant and agree
to and with the Indenture Trustee and its successors in said trust, for the
benefit of the Holders, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS. Except as otherwise specified herein
or as the context may otherwise require, the capitalized terms used herein
shall have the respective meanings set forth in Appendix A attached hereto
and made a part hereof for all purposes of this Indenture.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Indenture Securities" means the Notes.
"Indenture Security Holder" means a Holder.
"Indenture to be Qualified" means this Indenture.
"Indenture Trustee" or "Institutional Trustee" means the Indenture
Trustee.
"Obligor" on the indenture securities means the Note Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
3
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as in
effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the
plural include the singular; and
(vi) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
ARTICLE II
THE NOTES
SECTION 2.01. FORM. The Notes and the Indenture Trustee's
certificate of authentication shall be in substantially the forms set forth in
Exhibit B, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or by the related
Trust Issuance Certificate or Series Supplement, if any, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of such Notes.
Any portion of the text of any Note may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Note.
The Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in Exhibit B are part of the terms of this Indenture.
SECTION 2.02. DENOMINATIONS; NOTES ISSUABLE IN SERIES. The Notes
shall be issuable in the Minimum Denomination specified in the applicable Trust
Issuance Certificate or Series Supplement, if any, in either case executed on
behalf of the Trust by an Authorized Officer of the Delaware Trustee and, except
as otherwise provided in such Trust Issuance Certificate or Series Supplement,
if any, in integral multiples thereof.
The Notes may, at the election of and as authorized by a Responsible
Officer of the Note Issuer, be issued in one or more Series (each comprised of
one or more Classes), and shall be designated generally as the "Transitional
Funding Trust Notes" of the Note Issuer, with such
4
further particular designations added or incorporated in such title for the
Notes of any particular Series or Class as a Responsible Officer of the Note
Issuer may determine. Each Note shall bear upon its face the designation so
selected for the Series or Class to which it belongs. All Notes of the same
Series shall be identical in all respects except for the denominations
thereof, unless such Series is comprised of one or more Classes, in which
case all Notes of the same Class shall be identical in all respects except
for the denominations thereof. All Notes of a particular Series or, if such
Series is comprised of one or more Classes, all Notes of a particular Class
thereof, in each case issued under this Indenture, shall be in all respects
equally and ratably entitled to the benefits hereof without preference,
priority, or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and provisions
of this Indenture.
Each Series of Notes shall be created by a Trust Issuance Certificate
or Series Supplement, as the case may be, authorized by a Responsible Officer of
the Note Issuer and establishing the terms and provisions of such Series. The
several Series and Classes thereof may differ as between Series and Classes, in
respect of any of the following matters:
(1) designation of the Series and, if applicable, the Classes
thereof,
(2) the principal amount;
(3) the Note Interest Rate;
(4) the Payment Dates;
(5) the Scheduled Maturity Date;
(6) the Final Maturity Date;
(7) the Series Issuance Date;
(8) the place or places for the payment of interest, principal and
premium, if any;
(9) the Minimum Denominations;
(10) the Expected Amortization Schedule;
(11) provisions with respect to the definitions set forth in
Appendix A hereto;
(12) whether or not the Notes of such Series are to be Book-Entry
Notes and the extent to which Section 2.11 should apply;
5
(13) any redemption provisions applicable to the Notes of such
Series and the price or prices at which and the terms and
conditions upon which Notes of such Series shall be redeemed or
purchased;
(14) to the extent applicable, the extent to which payments on the
Notes of the related Series are subordinate to or PARI PASSU in
right of payment of principal and interest to other Notes; and
(15) any other provisions expressing or referring to the terms and
conditions upon which the Notes of the applicable Series or
Class are to be issued under this Indenture that are not in
conflict with the provisions of this Indenture and as to which
the Rating Agency Condition is satisfied.
SECTION 2.03. EXECUTION AUTHENTICATION AND DELIVERY. The Notes
shall be executed on behalf of the Note Issuer by any of its Responsible
Officers. The signature of any such Responsible Officer on the Notes may be
manual or facsimile.
Notes bearing the manual or facsimile signature of individuals who
were at any time Responsible Officers of the Note Issuer shall bind the Note
Issuer, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Note Issuer may deliver Notes executed by the Note Issuer to
the Indenture Trustee pursuant to an Issuer Order for authentication; and the
Indenture Trustee shall authenticate and deliver such Notes as in this Indenture
provided and not otherwise.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for therein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.04. TEMPORARY NOTES. Pending the preparation of
Definitive Notes, the Note Issuer may execute, and upon receipt of an Issuer
Order the Indenture Trustee shall authenticate and deliver, Temporary Notes
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, of the tenor of the Definitive Notes in lieu of which they are issued
and with such variations not inconsistent with the terms of this Indenture as
the officers executing such Notes may determine, as evidenced by their execution
of such Notes.
If Temporary Notes are issued, the Note Issuer will cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the temporary
6
Notes shall be exchangeable for Definitive Notes upon surrender of the
Temporary Notes at the office or agency of the Note Issuer to be maintained
as provided in Section 3.02, without charge to the Holder. Upon surrender for
cancellation of any one or more Temporary Notes, the Note Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so delivered in exchange, the Temporary Notes shall in
all respects be entitled to the same benefits under this Indenture as
Definitive Notes.
SECTION 2.05. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF
NOTES. The Note Issuer shall cause to be kept a register (the "Note Register")
in which, subject to such reasonable regulations as it may prescribe, the Note
Issuer shall provide for the registration of Notes and the registration of
transfers of Notes. The Indenture Trustee shall be "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided. Upon
any resignation of any Note Registrar, the Note Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties of
Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Note
Issuer as Note Registrar, the Note Issuer will give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register, and the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to rely
conclusively upon a certificate executed on behalf of the Note Registrar by a
Responsible Officer thereof as to the names and addresses of the Holders of the
Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Note Issuer to be maintained as provided in Section 3.02, the
Note Issuer shall execute, and the Indenture Trustee shall authenticate and the
Holder shall obtain from the Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes in any Minimum Denominations,
of the same Series (and, if applicable, Class) and aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes in
any Minimum Denominations, of the same Series (and, if applicable, Class) and
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange, the Note
Issuer shall execute, and the Indenture Trustee shall authenticate and the
Holder shall obtain from the Indenture Trustee, the Notes which the Holder
making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
other Notes shall be the valid obligations of the Note Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
7
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by (a) a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an institution which is a member of
one of the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP); or
(iv) such other guarantee program acceptable to the Indenture Trustee, and (b)
such other documents as the Indenture Trustee may require.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Note Issuer or Indenture Trustee 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 Notes, other than exchanges pursuant to Section 2.04 or 9.06 not
involving any transfer.
The preceding provisions of this Section notwithstanding, the Note
Issuer shall not be required to make, and the Note Registrar need not register
transfers or exchanges (i) of Notes that have been selected for redemption
pursuant to Article X, (ii) of any Note that has been submitted within 15 days
preceding the due date for any payment with respect to such Note or (iii) of
Unregistered Notes unless Section 2.17 has been complied with in connection with
such transfer or exchange.
SECTION 2.06. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If
(i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Indenture Trustee such security
or indemnity as may be required by it to hold the Note Issuer and the Indenture
Trustee harmless, then the Note Issuer shall execute and, upon its written
request, the Indenture Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement
Note of like Series (and, if applicable, Class), tenor and principal amount,
bearing a number not contemporaneously outstanding; PROVIDED, HOWEVER, that if
any such destroyed, lost or stolen Note, but not a mutilated Note, shall have
become or within seven days shall be due and payable, or shall have been called
for redemption, instead of issuing a replacement Note, the Note Issuer may pay
such destroyed, lost or stolen Note when so due or payable or upon the Optional
Redemption Date without surrender thereof If, after the delivery of such
replacement Note or payment of a destroyed, lost or stolen Note pursuant to the
proviso to the preceding sentence, a purchaser of the original Note in lieu of
which such replacement Note was issued presents for payment such original Note,
the Note Issuer and the Indenture Trustee shall be entitled to recover such
replacement Note (or such payment) from the Person to whom it was delivered or
any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of
8
any loss, damage, cost or expense incurred by the Note Issuer or the
Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the Note
Issuer and/or the Indenture Trustee may require the payment by the Holder of
such Note of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other reasonable expenses (including
the fees and expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Note Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be found at any time or enforced
by any Person, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.07. PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Note Issuer, the Indenture Trustee and
any agent of the Note Issuer or the Indenture Trustee may treat the Person in
whose name any Note is registered (as of the day of determination) as the owner
of such Note for the purpose of receiving payments of principal of and premium,
if any, and interest on such Note and for all other purposes whatsoever, whether
or not such Note be overdue, and neither the Note Issuer, the Indenture Trustee
nor any agent of the Note Issuer or the Indenture Trustee shall be affected by
notice to the contrary.
SECTION 2.08. PAYMENT OF PRINCIPAL, PREMIUM IF ANY, AND INTEREST;
INTEREST ON OVERDUE PRINCIPAL; PRINCIPAL, PREMIUM, IF ANY, AND INTEREST RIGHTS
PRESERVED.
(a) The Notes shall accrue interest as provided in the related
Trust Issuance Certificate or Series Supplement, if any, at the applicable Note
Interest Rate specified therein, and such interest shall be payable on each
Payment Date as specified therein. Any installment of interest, principal or
premium, if any, payable on any Note which is punctually paid or duly provided
for on the applicable Payment Date shall be paid to the Person in whose name
such Note (or one or more Predecessor Notes) is registered on the Record Date
for such Payment Date, by check mailed first-class, postage prepaid to such
Person's address as it appears on the Note Register on such Record Date or in
such other manner as may be provided in the related Trust Issuance Certificate
or Series Supplement, if any, except that (i) upon application to the Indenture
Trustee by any Holder owning Notes of any Class in the principal amount of
$10,000,000 or more not later than the applicable Record Date payment will be
made by wire transfer to an account maintained by such Holder and (ii) with
respect to Book Entry Notes payments will be made by
9
wire transfer in immediately available funds to the account designated by the
Holder of the applicable Global Note unless and until such Global Note is
exchanged for Definitive Notes (in which event payments shall be made as
provided above) and except for the final installment of principal and
premium, if any, payable with respect to such Note on a Payment Date which
shall be payable as provided below. The funds represented by any such checks
returned undelivered shall be held in accordance with Section 3.03 hereof
(b) The principal of each Note of each Series (and, if applicable,
Class) shall be paid, to the extent funds are available therefor in the
Collection Account, in installments on each Payment Date specified in the
related Trust Issuance Certificate or Series Supplement, if any. Notwithstanding
the foregoing, the entire unpaid principal amount of the Notes of a Series shall
be due and payable, if not previously paid, on the date on which an Event of
Default shall have occurred and be continuing with respect to such Series, if
the Indenture Trustee or the Holders of the Notes representing not less than a
majority of the Outstanding Amount of the Notes of all Series have declared the
Notes to be immediately due and payable in the manner provided in Section 5.02.
All payments of principal and premium, if any, on the Notes of any Series shall
be made pro rata to the Holders entitled thereto unless otherwise provided in
the related Trust Issuance Certificate or Series Supplement, if any, with
respect to any Class of Notes included in such Series. The Indenture Trustee
shall notify the Person in whose name a Note is registered at the close of
business on the Record Date preceding the Payment Date on which the Note Issuer
expects that the final installment of principal of and premium, if any, and
interest on such Note will be paid. Such notice shall be mailed no later than
five days prior to such final Payment Date and shall specify that such final
installment will be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such installment. Notices in connection with redemptions of Notes
shall be mailed to Holders as provided in Section 10.02.
(c) If interest on the Notes of any Series is not paid when due,
such defaulted interest shall be paid (plus interest on such defaulted interest
at the applicable Note Interest Rate to the extent lawful) to the Persons who
are Holders on a subsequent Special Record Date, which date shall be at least
five Business Days prior to the Special Payment Date. The Note Issuer shall fix
or cause to be fixed any such Special Record Date and Special Payment Date, and,
at least 20 days before any such Special Record Date, the Note Issuer shall mail
to each affected Holder a notice that states the Special Record Date, the
Special Payment Date and the amount of defaulted interest (plus interest on such
defaulted interest) to be paid.
SECTION 2.09. CANCELLATION. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Note Issuer may at
any time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Note Issuer may have acquired in
any manner whatsoever, and all Notes so delivered shall be promptly canceled by
the Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange
for any Notes canceled as
10
provided in this Section, except as expressly permitted by this Indenture.
All canceled Notes may be held or disposed of by the Indenture Trustee in
accordance with its standard retention or disposal policy as in effect at the
time.
SECTION 2.10. OUTSTANDING AMOUNT; AUTHENTICATION AND DELIVERY OF
NOTES. The aggregate Outstanding Amount of Notes that may be authenticated and
delivered under this Indenture shall be limited as provided in Section 3.08
hereof.
Notes of each Series created and established by a Trust Issuance
Certificate or Series Supplement, if any, may from time to time be executed by
the Note Issuer and delivered to the Indenture Trustee for authentication and
thereupon the same shall be authenticated and delivered by the Indenture Trustee
upon Issuer Request and upon delivery by the Note Issuer to the Indenture
Trustee, and receipt by the Indenture Trustee, or the causing to occur by the
Note Issuer, of the following; PROVIDED, HOWEVER, that compliance with such
conditions and delivery of such documents shall only be required in connection
with the original issuance of a Note or Notes of such Series:
(1) NOTE ISSUER ACTION. An Issuer Order authorizing and directing
the execution, authentication and delivery of the Notes by the
Indenture Trustee and specifying the principal amount of Notes
to be authenticated.
(2) AUTHORIZATIONS. A Funding Order related to such Series which
shall be in full force and effect and be Final.
(3) OPINIONS.
(a) An Opinion of Counsel that the applicable Funding
Order is in full force and effect and Final and that
no other authorization, approval or consent of any
governmental body or bodies at the time having
jurisdiction in the premises is required for the valid
issuance, authentication and delivery of such Notes,
except for such registrations as are required under
the Blue Sky and securities laws of any State or such
authorizations, approvals or consents of governmental
bodies that have been obtained and copies of which
have been delivered with such Opinion of Counsel.
(b) An Opinion of Counsel that no authorization, approval
or consent of any governmental body or bodies at the
time having jurisdiction in the premises is required
for the valid execution and delivery by the Note
Issuer of each of the Basic Documents to which the
Note Issuer is a party, except for such
authorizations, approvals or consents of governmental
bodies that have been obtained and copies of which
have been delivered with such Opinion of Counsel.
11
(4) AUTHORIZING CERTIFICATE. An Officer's Certificate, dated the
Series Issuance Date, of the Note Issuer certifying that (i)
the Note Issuer has duly authorized the execution and delivery
of this Indenture and the related Trust Issuance Certificate or
Series Supplement, as the case may be, and the execution and
delivery of the Notes of such Series and (ii) that the Trust
Issuance Certificate or Series Supplement, as the case may be,
for such Series of Notes is in the form attached thereto, which
Trust Issuance Certificate or Series Supplement, as the case
may be, shall comply with the requirements of Section 2.02
hereof.
(5) THE NOTE COLLATERAL. The Note Issuer shall have made or caused
to be made all filings with the ICC pursuant to the Funding
Order and the Funding Law and all other filings necessary to
perfect the Grant of the Note Collateral to the Indenture
Trustee and the lien of this Indenture.
(6) CERTIFICATES OF THE NOTE ISSUER AND THE GRANTEE.
(a) An Officer's Certificate from the Note Issuer, dated
as of the Series Issuance Date:
(i) to the effect that (A) the Note Issuer is not in
Default under this Indenture and that the
issuance of the Notes applied for will not result
in any Default or in any breach of any of the
terms, conditions or provisions of or constitute
a default under the Funding Order or any
indenture, mortgage, deed of trust or other
agreement or instrument to which the Note Issuer
is a party or by which it or its property is
bound or any order of any court or administrative
agency entered in any Proceeding to which the
Note Issuer is a party or by which it or its
property may be bound or to which it or its
property may be subject; and (B) that all
conditions precedent provided in this Indenture
relating to the execution, authentication and
delivery of the Notes applied for have been
complied with;
(ii) to the effect that the Note Issuer has not
assigned any interest or participation in the
Note Collateral except for the Grant contained in
this Indenture; the Note Issuer has the power and
right to Grant the Note Collateral to the
Indenture Trustee as security hereunder; and the
Note Issuer, subject to the terms of this
Indenture, has Granted to the Indenture Trustee
all of its right, title and interest in and to
such Note Collateral free and clear of any lien,
mortgage, pledge, charge, security interest,
adverse claim or other encumbrance arising as a
result of
12
actions of the Note Issuer or through
the Note Issuer, except the lien of this
Indenture;
(iii) to the effect that the Note Issuer has
appointed the firm of Independent certified
public accountants as contemplated in Section
8.06 hereof;
(iv) to the effect that attached thereto are duly
executed, true and complete copies of the Grant
Agreement and the Sale Agreement or Subsequent
Grant Agreement and Subsequent Sale Agreement, as
applicable, and the Servicing Agreement; and
(v) stating that all filings with the ICC pursuant to
the Funding Law and the Funding Order and all UCC
financing statements with respect to the Note
Collateral which are required to be filed by the
terms of the Funding Order, the Funding Law, the
Grant Agreement and the Sale Agreement or
Subsequent Grant Agreement and Subsequent Sale
Agreement, as applicable, the Servicing Agreement
and this Indenture have been filed as required.
(b) An Officer's Certificate from the Grantee, dated as of
the Series Issuance Date, to the effect that, in the
case of the Intangible Transition Property,
immediately prior to the conveyance thereof to the
Note Issuer pursuant to the Sale Agreement or the
Subsequent Sale Agreement, as applicable:
(i) the Grantee was the owner of such Intangible
Transition Property, free and clear of any Lien;
the Grantee had not assigned any interest or
participation in such Intangible Transition
Property and the proceeds thereof other than to
the Note Issuer pursuant to the Sale Agreement or
Subsequent Sale Agreement, as applicable; the
Grantee has the power and right to convey such
Intangible Transition Property and the proceeds
thereof to the Note Issuer; and the Grantee,
subject to the terms of the Sale Agreement or the
Subsequent Sale Agreement, as applicable, has
validly conveyed to the Note Issuer all of its
right, title and interest in and to such
Intangible Transition Property and the proceeds
thereof, free and clear of any lien, mortgage,
pledge, charge, security interest, adverse claim
or other encumbrance; and
13
(ii) the attached copy of the Funding Order creating
such Intangible Transition Property is true and
correct.
(7) OPINION OF TAX COUNSEL. Illinois Power shall have delivered to
the Grantee, the Note Issuer, the Delaware Trustee and the
Indenture Trustee an opinion of independent tax counsel and/or
a ruling from the Internal Revenue Service (as selected by, and
in form and substance reasonably satisfactory to, Illinois
Power) to the effect that, for federal income tax purposes,
(i) such issuance of Notes, and transfer of the Note Proceeds
to Illinois Power, will not result in gross income to the
Grantee, the Note Issuer or Illinois Power and (ii) such
issuance will not materially adversely affect the
characterization of any then Outstanding Notes as obligations
of Illinois Power.
(8) OPINION OF COUNSEL. Unless otherwise specified in a Trust
Issuance Certificate or Series Supplement, if any, an Opinion
of Counsel, portions of which may be delivered by counsel for
the Note Issuer, portions of which may be delivered by counsel
for the Grantee and the Servicer, and portions of which may be
delivered by counsel for the Indenture Trustee, dated the
Series Issuance Date, in each case subject to the customary
exceptions, qualifications and assumptions contained therein,
to the collective effect that:
(a) the Indenture has been duly qualified under the Trust
Indenture Act and either the related Trust Issuance
Certificate or Series Supplement, if any, has been
duly qualified under the Trust Indenture Act or no
such qualification of the Trust Issuance Certificate
or Series Supplement is necessary;
(b) all instruments furnished to the Indenture Trustee
pursuant to this Indenture conform to the requirements
set forth in this Indenture and constitute all of the
documents required to be delivered hereunder for the
Indenture Trustee to authenticate and deliver the
Notes applied for, and all conditions precedent
provided for in this Indenture relating to the
authentication and delivery of the Notes have been
complied with;
(c) the Note Issuer has the power and authority to execute
and deliver the Trust Issuance Certificate, the Series
Supplement, if any, and this Indenture and to issue
the Notes, and each of the Trust Issuance Certificate,
the Series Supplement, if any, this Indenture, and the
Notes have been duly authorized and the Note Issuer is
duly formed
14
and is validly existing in good standing under the
laws of the jurisdiction of its organization;
(d) the Trust Issuance Certificate, the Series Supplement,
if any, and the Indenture have been duly executed and
delivered by the Note Issuer;
(e) the Notes applied for have been duly authorized and
executed and, when authenticated in accordance with
the provisions of the Indenture and delivered against
payment of the purchase price therefor, will
constitute valid and binding obligations of the Note
Issuer (subject to bankruptcy, insolvency,
reorganization and other similar laws affecting the
rights of creditors generally and general principles
of equity), entitled to the benefits of the Indenture
and any related Trust Issuance Certificate or Series
Supplement;
(f) this Indenture, the Grant Agreement or the Subsequent
Grant Agreement as applicable, the Sale Agreement or
the Subsequent Sale Agreement as applicable, the
Servicing Agreement and the related Trust Issuance
Certificate or Series Supplement, if any, are valid
and binding agreements of the Note Issuer, enforceable
in accordance with their respective terms, except as
such enforceability may be subject to bankruptcy,
insolvency, reorganization and other similar laws
affecting the rights of creditors generally and
general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law);
(g) in accordance with the Funding Law, the Funding Order
(A) creates Intangible Transition Property in an
amount not less than the amount, if any, specified in
the Trust Issuance Certificate or Series Supplement,
if any, which was vested by the Funding Order in the
Grantee; (B) approves and authorizes the sale,
transfer and assignment by the Grantee of such
Intangible Transition Property to the Note Issuer; (C)
approves the issuance and sale by the Note Issuer of
the Notes to be issued on such Series Issuance Date in
an aggregate principal amount which equals or exceeds
the initial Outstanding Amount of the Notes referred
to in (1) above; and (D) declares and establishes that
such Notes are Transitional Funding Instruments within
the meaning of Section 18-102 of the Funding Law;
15
(h) (A) at the time of the issuance of such Notes the lien
of this Indenture in favor of the Holders in the
Intangible Transition Property attaches automatically;
(B) such lien has been perfected in accordance with
Section 18-107(c) of the Funding Law and in accordance
with the Funding Order; (C) such lien is valid and
enforceable against Illinois Power, the Servicer, the
Grantee, the Note Issuer, and all third parties,
including judgment lien creditors; and (D) such lien
ranks prior to any other lien which subsequently
attaches to the Intangible Transition Property;
(i) with respect to the Note Collateral other than the
Intangible Transition Property, upon the giving of
value by the Indenture Trustee to the Note Issuer with
respect to such Note Collateral, (A) this Indenture,
together with any related Trust Issuance Certificate
or Series Supplement, creates in favor of the
Indenture Trustee a security interest in the rights of
the Note Issuer in such Note Collateral, and such
security interest is enforceable against Illinois
Power, the Servicer, the Grantee, the Note Issuer and
all third parties, (B) such security interest is
perfected, and (C) such perfected security interest is
of first priority;
(j) either (A) the Registration Statement covering the
Notes is effective under the Securities Act and, to
such counsel's knowledge, no stop order suspending the
effectiveness of such Registration Statement has been
issued under the Securities Act and no proceedings for
that purpose have been initiated or are pending or
threatened by the SEC or (B) the Notes are exempt from
the registration requirements under the Securities
Act;
(k) the Note Issuer is not now and, assuming that the Note
Issuer uses the proceeds of the sale of the Notes for
the purpose of acquiring Intangible Transition
Property in accordance with the terms of the Sale
Agreement or the Subsequent Sale Agreement, as
applicable, following the sale of the Notes to the
underwriter, underwriters, placement agent or agents
or similar Person, neither the Note Issuer nor the
Grantee will be required to be registered under the
Investment Company Act of 1940, as amended;
(l) the Grant Agreement or Subsequent Grant Agreement, as
applicable, is a valid and binding agreement of
Illinois Power enforceable against Illinois Power in
accordance with its terms and the Sale Agreement or
Subsequent Sale Agreement as applicable, is a valid
and binding agreement of the Grantee enforceable
against
16
the Grantee in accordance with its terms, except in
each case as such enforceability may be subject to
bankruptcy, insolvency, reorganization and other
similar laws affecting the rights of creditors
generally and general principles of equity (regardless
of whether such enforcement is considered in a
proceeding in equity or at law);
(m) the Servicing Agreement is a valid and binding
agreement of the Servicer enforceable against the
Servicer in accordance with its terms except as such
enforceability may be subject to bankruptcy,
insolvency, reorganization and other similar laws
affecting the rights of creditors generally and
general principles of equity (regardless of whether
such enforcement is considered in a proceeding in
equity or at law);
(n) pursuant to the Funding Order and upon the delivery of
the fully executed Sale Agreement or Subsequent Sale
Agreement as applicable to the Note Issuer and the
payment of the purchase price of the Intangible
Transition Property by the Note Issuer to the Grantee
pursuant to the Sale Agreement or Subsequent Sale
Agreement, as applicable, (i) the transfer of the
Intangible Transition Property by the Grantee to the
Note Issuer conveys the Grantee's right, title and
interest in the Intangible Transition Property to the
Note Issuer and will be treated under Illinois state
law as an absolute transfer of all of the Grantee's
right, title, and interest in the Intangible
Transition Property, other than for federal and state
income and franchise tax purposes, (ii) such transfer
of the Intangible Transition Property is perfected,
(iii) such transfer has priority over any other
assignment of the Intangible Transition Property and
(iv) the Intangible Transition Property is free and
clear of all liens created prior to its transfer to
the Note Issuer pursuant to the Sale Agreement; and
(o) such other matters as the Indenture Trustee may
reasonably require.
(9) ACCOUNTANT'S CERTIFICATE OR OPINION. Unless otherwise specified
in a Trust Issuance Certificate or a Series Supplement, if any,
a certificate or opinion, addressed to the Note Issuer and the
Indenture Trustee complying with the requirements of
Section 11.01(a) hereof, of a firm of Independent certified
public accountants of recognized national reputation to the
effect that (a) such accountants are Independent with respect
to the Note Issuer within the meaning of this Indenture, and
are independent public accountants within the meaning of the
standards of The American Institute of Certified
17
Public Accountants, and (b) with respect to the Note
Collateral, they have made such calculations as they deemed
necessary for the purpose and determined that, based on the
assumptions used in calculating the initial IFCs or, if
applicable, the most recent revised IFCs, as of the Series
Issuance Date for such Series (after giving effect to the
issuance of such Series and the application of the proceeds
therefrom) such IFCs are sufficient to pay (a) Operating
Expenses when incurred, plus (b) the Overcollateralization
Amount, plus (c) interest on each Series of Notes at their
respective Note Interest Rates when due, plus (d) principal
of each Series of Notes in accordance with the Expected
Amortization Schedule.)
(10) RATING AGENCY CONDITION. The Indenture Trustee shall receive
evidence reasonably satisfactory to it that the Rating Agency
Condition will be satisfied with respect to the issuance of
such new Series.
(11) REQUIREMENTS OF TRUST ISSUANCE CERTIFICATE OR SERIES
SUPPLEMENT. Such other funds, accounts, documents
certificates, agreements, instruments or opinions as may be
required by the terms of the Trust Issuance Certificate or
Series Supplement, if any, creating such Series.
(12) OTHER REQUIREMENTS. Such other documents, certificates,
agreements, instruments or opinions as the Indenture Trustee
may reasonably require.
SECTION 2.11. BOOK-ENTRY NOTES. Unless the applicable Trust
Issuance Certificate or Series Supplement, if any, provides otherwise, all of
the related Series of Notes shall be issued in Book-Entry Form, and the Note
Issuer shall execute and the Indenture Trustee shall, in accordance with this
Section and the Issuer Order with respect to such Series, authenticate and
deliver one or more Global Notes, evidencing the Notes of such Series which
(i) shall be an aggregate original principal amount equal to the aggregate
original principal amount of such Notes to be issued pursuant to the applicable
Issuer Order, (ii) shall be registered in the name of the Clearing Agency
therefor or its nominee, which shall initially be Cede & Co., as nominee for The
Depository Trust Company, the initial Clearing Agency, (iii) shall be delivered
by the Indenture Trustee to such Clearing Agency's or such nominee's
instructions, and (iv) shall bear a legend substantially to the following
effect: "TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN THE
CLEARING AGENCY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE."
Each Clearing Agency designated pursuant to this Section 2.11 must, at
the time of its designation and at all times while it serves as Clearing Agency
hereunder, be a "clearing agency" registered under the Exchange Act and any
other applicable statute or regulation.
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No Holder of any such Series of Notes issued in Book-Entry Form shall
receive a Definitive Note representing such Holder's interest in any such Notes,
except as provided in Section 2.13 or in the applicable Trust Issuance
Certificate or Series Supplement, if any, relating to such Notes. Unless (and
until) certificated, fully registered Notes of any Series (the "Definitive
Notes") have been issued to the Holders of such Series pursuant to Section 2.13
or pursuant to any applicable Trust Issuance Certificate or Series Supplement,
if any, relating thereto:
(a) the provisions of this Section 2.11 shall be in full force and
effect;
(b) the Note Issuer, the Servicer, the Paying Agent, the Note
Registrar and the Indenture Trustee may deal with the Clearing
Agency for all purposes (including the making of distributions
on the Notes of such Series) as the authorized representatives
of the Holders of such Series;
(c) to the extent that the provisions of this Section 2.11 conflict
with any other provisions of this Indenture, the provisions of
this Section 2.11 shall control; and
(d) the rights of Holders of such Series shall be exercised only
through the Clearing Agency and the Clearing Agency
Participants and shall be limited to those established by law
and agreements between such Holders and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until
Definitive Notes are issued pursuant to Section 2.13, the
initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Book-Entry Notes
to such Clearing Agency Participants.
SECTION 2.12. NOTICES TO CLEARING AGENCY. Unless and until
Definitive Notes shall have been issued to Holders of such Series pursuant to
Section 2.13 or the applicable Trust Issuance Certificate or Series Supplement,
if any, relating to such Notes, whenever notice, payment, or other communication
to the holders of Book-Entry Notes of any Series is required under this
Indenture, the Indenture Trustee, the Servicer and the Paying Agent shall give
all such notices and communications specified herein to be given to Holders of
such Series to the Clearing Agency.
SECTION 2.13. DEFINITIVE NOTES. If (i)(A) the Administrator advises
the Indenture Trustee in writing that the Clearing Agency is no longer willing
or able to properly discharge its responsibilities under any Letter of
Representations and (B) the Administrator is unable to locate a qualified
successor Clearing Agency, (ii) the Administrator, at its option, advises the
Indenture Trustee in writing that, with respect to any Series, it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of a Servicer Default, Holders holding Notes aggregating not less
than 50% of the aggregate Outstanding Amount of any Series of Notes maintained
as Book-Entry Notes advise the Indenture Trustee, the Administrator,
19
the Note Issuer and the Clearing Agency (through the Clearing Agency
Participants) in writing that the continuation of a book-entry system through
the Clearing Agency is no longer in the best interests of the Holders of such
Series, the Administrator shall notify the Clearing Agency, the Indenture
Trustee and all such Holders of such Series in writing of the occurrence of
any such event and of the availability of Definitive Notes of such Series to
the Holders of such Series requesting the same. Upon surrender to the
Indenture Trustee of the Global Notes of such Series by the Clearing Agency
accompanied by registration instructions from such Clearing Agency for
registration, the Indenture Trustee shall authenticate and deliver Definitive
Notes of such Series. None of the Note Issuer, the Note Registrar, or the
Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions. Upon the issuance of Definitive Notes of any
Series, all references herein to obligations with respect to such Series
imposed upon or to be performed by the Clearing Agency shall be deemed to be
imposed upon and performed by the Indenture Trustee, to the extent applicable
with respect to such Definitive Notes and the Indenture Trustee shall
recognize the Holders of the Definitive Notes as Holders hereunder.
SECTION 2.14. CUSIP NUMBER. The Note Issuer in issuing any Note or
Series of Notes may use a "CUSIP" number and, if so used, the Indenture Trustee
shall use the CUSIP number in any notices to the Holders thereof as a
convenience to such Holders; PROVIDED, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The Note Issuer shall
promptly notify the Indenture Trustee in writing of any change in the CUSIP
number with respect to any Note.
SECTION 2.15. LETTER OF REPRESENTATIONS. Notwithstanding anything
to the contrary in this Indenture or any Series Supplement or any Trust Issuance
Certificate, the parties hereto shall comply with the terms of each Letter of
Representations.
SECTION 2.16. RELEASE OF NOTE COLLATERAL. Subject to Section 11.01,
the Indenture Trustee shall release property from the lien of this Indenture
only as specified in Section 8.02(d) or upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(l) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates.
SECTION 2.17. SPECIAL TERMS APPLICABLE TO SUBSEQUENT TRANSFERS OF
CERTAIN NOTES.
(a) Certain Series of Notes may not be registered under the
Securities Act, or the securities laws of any other jurisdiction. Consequently,
such Unregistered Notes shall not be transferable other than pursuant to an
exemption from the registration requirements of the Securities Act and
satisfaction of certain other provisions specified herein or in the related
Trust Issuance Certificate or Series Supplement, if any. Unless otherwise
provided in the related Trust
20
Issuance Certificate or Series Supplement, if any, no sale, pledge or other
transfer of any Unregistered Note (or interest therein) may be made by any
Person unless either (i) such sale, pledge or other transfer is made to a
"qualified institutional buyer" (as defined under Rule 144A under the
Securities Act) or to an "institutional accredited investor" (as described in
Rule 501(a)(l), (2), (3) or (7) under the Securities Act) and, if so
requested by the Grantee or the Indenture Trustee, such proposed transferee
executes and delivers a certificate to such effect in form and substance
satisfactory to the Indenture Trustee and the Note Issuer, or (ii) such sale,
pledge or other transfer is otherwise made in a transaction exempt from the
registration requirements of the Securities Act, in which case (A) the
Indenture Trustee shall require that both the prospective transferor and the
prospective transferee to the Indenture Trustee and the Note Issuer in
writing the facts surrounding such transfer, which certification shall be in
form and substance satisfactory to the Indenture Trustee and the Note Issuer,
and (B) the Indenture Trustee shall require a written opinion of counsel
(which shall not be at the expense of the Note Issuer, the Servicer or the
Indenture Trustee) satisfactory to the Note Issuer and the Indenture Trustee
to the effect that such transfer will not violate the Securities Act. Neither
the Grantee, the Note Issuer, nor the Indenture Trustee nor the Servicer
shall be obligated to register any Unregistered Notes under the Securities
Act, qualify any Unregistered Notes under the securities laws of any state or
provide registration rights to any purchaser or holder thereof
(b) Unless otherwise provided in the related Trust Issuance
Certificate or Series Supplement, the Unregistered Notes may not be acquired by
or for the account of a Benefit Plan and, by accepting and holding an
Unregistered Note, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan and, if requested to do so by the Note
Issuer or the Indenture Trustee, the Holder of an Unregistered Note shall
execute and deliver to the Indenture Trustee a certificate to such effect in
form and substance satisfactory to the Indenture Trustee and the Note Issuer.
(c) Unless otherwise provided in the related Trust Issuance
Certificate or Series Supplement, Unregistered Notes shall be issued in the form
of Definitive Notes, shall be in fully registered form and Sections 2.11 and
2.12 of this Indenture shall not apply thereto.
(d) Each Unregistered Note shall bear legends to the effect set
forth in subsections (a) and (b) (if subsection (b) is applicable) above.
SECTION 2.18. TAX TREATMENT. The Note Issuer and the Indenture
Trustee, by entering into this Indenture, and the Holders and any Persons
holding a beneficial interest in any Note, by acquiring any Note or interest
therein, (i) express their intention that the Notes qualify under applicable
tax law as indebtedness of Illinois Power secured by the Note Collateral and
(ii) agree to treat the Notes as indebtedness of Illinois Power secured by
the Note Collateral for the purpose of federal income, state and local income
and franchise taxes, and any other taxes imposed upon, measured by or based
upon gross or net income, unless other required by appropriate taxing
authorities.
21
SECTION 2.19. STATE PLEDGE. At the Closing Date, under the laws of
the State of Illinois and the United States in effect on the Closing Date, the
State of Illinois has agreed with the Holders, pursuant to Section 18-105(b) of
the Funding Law, as follows:
"(b) The State pledges to and agrees with the holders
of any transitional funding instruments who may enter into
contracts with an electric utility, grantee, assignee or issuer
pursuant to this Article XVIII that the State will not in any way
limit, alter, impair or reduce the value of intangible transition
property created by, or instrument funding charges approved by, a
transitional funding order so as to impair the terms of any
contract made by such electric utility, grantee, assignee or
issuer with such holders or in any way impair the rights and
remedies of such holders until the pertinent grantee instruments
or, if the related transitional funding order does not provide
for the issuance of grantee instruments, the transitional funding
instruments and interest, premium and other fees, costs and
charges related thereto, as the case may be, are fully paid and
discharged. Electric utilities, grantees and issuers are
authorized to include these pledges and agreements of the State
in any contract with the holders of transitional funding
instruments or with any assignees pursuant to this Article XVIII
and any assignees are similarly authorized to include these
pledges and agreements of the State in any contract with any
issuer, holder or any other assignee. Nothing in this Article
XVIII shall preclude the State of Illinois from requiring
adjustments as may otherwise be allowed by law to the electric
utility's base rates, transition charges, delivery services
charges, or other charges for tariffed services, so long as any
such adjustment does not directly affect or impair any instrument
funding charges previously authorized by a transitional funding
order issued by the [ICC]."
As a result of the foregoing pledge, the State of Illinois may not, except as
provided in the succeeding sentence, in any way limit, alter, impair or reduce
the value of the ITP or the IFCs in a manner substantially impairing this
Indenture or the rights and remedies of the Holders (and, consequently, may not
revoke, reduce, postpone or terminate any Funding Order or the rights of the
Holders to receive IFC Payments and all other proceeds of the 1998 Transition
Property), until the Notes, together with interest thereon, are fully paid and
discharged. Notwithstanding the immediately preceding sentence, the State of
Illinois would be allowed to effect a temporary impairment of the Holders'
rights if it could be shown that such impairment was necessary to advance a
significant and legitimate public purpose.
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ARTICLE III
COVENANTS
SECTION 3.01. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The principal of and premium, if any, and interest on the Notes will be duly and
punctually paid in accordance with the terms of the Notes and this Indenture.
Amounts properly withheld under the Code or other tax laws by any Person from a
payment to any Holder of interest or principal or premium, if any, shall be
considered as having been paid by the Note Issuer to such Holder for all
purposes of this Indenture.
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY. The Note Issuer will
maintain in Chicago, Illinois, an office or agency [INSERT ADDRESS] where Notes
may be surrendered for registration of transfer or exchange. The Note Issuer
hereby initially appoints the Indenture Trustee to serve as its agent for the
foregoing purposes. The Note Issuer will give prompt written notice to the
Indenture Trustee of the location, and of any change in the location, of any
such office or agency. If at any time the Note Issuer shall fail to maintain any
such office or agency or shall fail to furnish the Indenture Trustee with the
address thereof, such surrenders may be made at the Corporate Trust Office of
the Indenture Trustee, and the Note Issuer hereby appoints the Indenture Trustee
as its agent to receive all such surrenders.
SECTION 3.03. MONEY FOR PAYMENTS TO BE HELD IN TRUST. As provided
in Section 8.02(a), all payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Collection Account
pursuant to Section 8.02(d) shall be made on behalf of the Note Issuer by the
Indenture Trustee or by another Paying Agent, and no amounts so withdrawn from
the Collection Account for payments with respect to any Notes shall be paid over
to the Note Issuer except as provided in this Section and Section 8.02.
The Note Issuer will cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee written notice of any default
by the Note Issuer of which it has actual knowledge in the making of
any payment required to be made with respect to the Notes;
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(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to
the Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
Notes if at any time it determines that it has ceased to meet the
standards required to be met by a Paying Agent at the time of such
determination; and
(v) comply with all requirements of the Code and other tax
laws with respect to the withholding from any payments made by it on
any Notes of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection
therewith.
The Note Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to the Note Issuer on an Issuer Request; and, subject to Section
11.16, the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Note Issuer for payment thereof (but only to the
extent of the amounts so paid to the Note Issuer), and all liability of the
Indenture Trustee or such Paying Agent with respect to such trust money shall
thereupon cease; PROVIDED, HOWEVER, that the Indenture Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Note Issuer, cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day and of general
circulation in the City of Chicago, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Note Issuer. The Indenture Trustee may also adopt and
employ, at the expense of the Note Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice of
such repayment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in moneys due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.04. EXISTENCE. The Note Issuer will keep in full effect
its existence, rights and franchises as a business trust under the laws of the
State of Delaware (unless it
24
becomes, or any successor Note Issuer hereunder is or becomes, organized
under the laws of any other State or of the United States of America, in
which case the Note Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Note Collateral and each
other instrument or agreement included in the Note Collateral.
SECTION 3.05. PROTECTION OF NOTE COLLATERAL. The Note Issuer will
from time to time execute and deliver all such supplements and amendments hereto
and all filings with the ICC pursuant to the Funding Order or to the Funding Law
and all financing statements, continuation statements, instruments of further
assurance and other instruments, and will take such other action necessary or
advisable to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively
the purposes hereof,
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) enforce any of the Note Collateral;
(iv) preserve and defend title to the Note Collateral and the
rights of the Indenture Trustee and the Holders in such Note
Collateral against the Claims of all Persons and parties, including
the challenge by any party to the validity or enforceability of any
Funding Order, any Tariff, the Intangible Transition Property or any
proceeding relating thereto and institute any action or proceeding
necessary to compel performance by the ICC or the State of Illinois of
any of its obligations or duties under the Funding Law, the State
Pledge, or any Funding Order; or
(v) pay any and all taxes levied or assessed upon all or any
part of the Note Collateral.
The Note Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any filings with the ICC, financing statements,
continuation statements or other instrument required by the Indenture Trustee
pursuant to this Section, it being understood that the Indenture Trustee
shall have no such obligation or any duty to prepare such documents.
SECTION 3.06. OPINIONS AS TO NOTE COLLATERAL.
(a) On the Series Issuance Date for each Series (including the
Closing Date), the Note Issuer shall furnish to the Indenture Trustee an Opinion
of Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Indenture, any
indentures supplemental hereto, and any other requisite documents, and with
25
respect to the execution and filing of any filings with the ICC pursuant to
the Funding Law and the applicable Funding Order and any financing statements
and continuation statements, as are necessary to perfect and make effective
the lien and security interest of this Indenture and reciting the details of
such action, or stating that, in the opinion of such counsel, no such action
is necessary to make such lien and security interest effective.
(b) On or before September 30 in each calendar year, while any
Series is outstanding, beginning on September 30, 1999, the Note Issuer shall
furnish to the Indenture Trustee an Opinion of Counsel either stating that, in
the opinion of such counsel, such action has been taken with respect to the
recording, filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and with respect to the
execution and filing of any filings with the ICC pursuant to the Funding Law and
the Funding Order and any financing statements and continuation statements as is
necessary to maintain the lien and security interest created by this Indenture
and reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security interest.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and the execution and filing of any filings with the ICC,
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the lien and security interest created by
this Indenture until September 30 in the following calendar year.
(c) Prior to the effectiveness of any Subsequent Sale Agreement or
any amendment to any Sale Agreement, the Note Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion
of such counsel, all filings, including filings with the ICC pursuant to the
Funding Law, or the Funding Order, have been executed and filed that are
necessary fully to preserve and protect the interest of the Note Issuer and the
Indenture Trustee in the Intangible Transition Property and the proceeds
thereof, and reciting the details of such filings or referring to prior Opinions
of Counsel in which such details are given, or (B) stating that, in the opinion
of such counsel, no such action shall be necessary to preserve and protect such
interest.
SECTION 3.07. PERFORMANCE OF OBLIGATIONS; SERVICING SEC FILINGS.
(a) The Note Issuer (i) will diligently pursue any and all
actions to enforce its rights under each instrument or agreement included in
the Note Collateral and (ii) will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's covenants or obligations under any such
instrument or agreement or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument or agreement, except, in each case, as
expressly provided in this Indenture, any Trust Issuance Certificate, any
Series Supplement, the Sale Agreement, any Subsequent Sale Agreement related
to the applicable Note Collateral, the Servicing Agreement, the
Administration Agreement or such other instrument or agreement.
26
(b) The Note Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee herein or in an Officer's
Certificate of the Note Issuer shall be deemed to be action taken by the Note
Issuer. Initially, the Note Issuer has contracted with the Administrator to
assist the Note Issuer in performing its duties under this Indenture.
(c) The Note Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Note Collateral, including,
but not limited to, filing or causing to be filed all filings with the ICC
pursuant to the Funding Law or the Funding Order, all UCC financing statements
and continuation statements required to be filed by it by the terms of this
Indenture, the Sale Agreement, any Subsequent Sale Agreement and the Servicing
Agreement in accordance with and within the time periods provided for herein and
therein.
(d) If the Note Issuer shall have knowledge of the occurrence of a
Servicer Default under the Servicing Agreement, the Note Issuer shall promptly
give written notice thereof to the Indenture Trustee and the Rating Agencies,
and shall specify in such notice the response or action, if any, the Note Issuer
has taken or is taking with respect of such default. If a Servicer Default shall
arise from the failure of the Servicer to perform any of its duties or
obligations under the Servicing Agreement with respect to the Intangible
Transition Property or the IFCs, the Note Issuer shall take all reasonable steps
available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer and the Rating Agencies of the Servicer's rights and
powers pursuant to Section [7.01] of the Servicing Agreement, the Note Issuer
shall appoint a successor Servicer (the "Successor Servicer") with the Grantee's
prior written consent thereto (which consent shall not be unreasonably
withheld), and such Successor Servicer shall accept its appointment by a written
assumption in a form acceptable to the Grantee, the Note Issuer and the
Indenture Trustee. A Person shall qualify as a Successor Servicer only if such
Person satisfies the requirements of the Servicing Agreement. If within 30 days
after the delivery of the notice referred to above, the Note Issuer shall not
have obtained such a Successor Servicer, the Indenture Trustee may petition the
ICC or a court of competent jurisdiction to appoint a Successor Servicer. In
connection with any such appointment, the Grantee may make such arrangements for
the compensation of such Successor Servicer as it and such successor shall
agree, subject to the limitations set forth below and in the Servicing
Agreement.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Servicing Agreement, the Indenture Trustee shall promptly
notify the Note Issuer, the Holders and the Rating Agencies. As soon as a
Successor Servicer is appointed, the Note Issuer shall notify the Grantee,
the Note Issuer, the Holders and the Rating Agencies of such appointment,
specifying in such notice the name and address of such Successor Servicer.
27
(g) Without derogating from the absolute nature of the assignment
Granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Note Issuer agrees that it will not, without
the prior written consent of the Indenture Trustee or the Holders of at least a
majority in Outstanding Amount of the Notes of all Series, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of any Note
Collateral or the Basic Documents, or waive timely performance or observance by
Illinois Power, the Grantee or the Servicer under the Grant Agreement, any
Subsequent Grant Agreement, the Sale Agreement any Subsequent Sale Agreement or
the Servicing Agreement, respectively; PROVIDED, that no such consent shall be
required if (i) the Indenture Trustee shall have received an Officer's
Certificate stating that such waiver, amendment, modification, supplement or
termination shall not adversely affect in any material respect the interests of
the Holders and (ii) the Rating Agency Condition shall have been satisfied with
respect thereto. If any such amendment, modification, supplement or waiver shall
be so consented to by the Indenture Trustee or such Holders, the Note Issuer
agrees to execute and deliver, in its own name and at its own expense, such
agreements, instruments, consents and other documents as shall be necessary or
appropriate in the circumstances. The Note Issuer agrees that no such amendment,
modification, supplement or waiver shall adversely affect the rights of the
Holders of the Notes outstanding at the time of any such amendment,
modification, supplement or waiver.
(h) The Note Issuer shall, or shall cause the Administrator to,
file with the SEC such periodic reports, if any, as are required from time to
time under Section 13 of the Exchange Act.
(i) The Note Issuer shall make all filings required under the
Funding Law relating to the transfer of the ownership or security interest in
the Intangible Transition Property other than those required to be made by the
Grantee pursuant to the Basic Documents.
SECTION 3.08. CERTAIN NEGATIVE COVENANTS.
(a) The Note Issuer shall not issue Notes in an aggregate initial
Outstanding Amount (i) during the twelve-month period beginning on August 1,
1998 in excess of $864,000,000; and (ii) on any date from and after July 31,
1999, in excess of $[1,634,000,000], less the aggregate initial Outstanding
Amount of any Notes issued on or prior to July 31, 1999.
(b) So long as any Notes are Outstanding, the Note Issuer shall
not:
(i) except as expressly permitted by this Indenture,
sell, transfer, exchange or otherwise dispose of any of the properties
or assets of the Note Issuer, including those included in the Note
Collateral, unless directed to do so by the Indenture Trustee in
accordance with Article V;
28
(ii) claim any credit on, or make any deduction from
the principal or premium, if any, or interest payable in respect of,
the Notes (other than amounts properly withheld from such payments
under the Code or other tax laws) or assert any claim against any
present or former Holder by reason of the payment of the taxes levied
or assessed upon any part of the Note Collateral;
(iii) terminate its existence or dissolve or liquidate
in whole or in part; or
(iv) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations
with respect to the Notes under this Indenture except as may be
expressly permitted hereby, (B) permit any lien, charge, excise,
claim, security interest, mortgage or other encumbrance (other than
the lien of this Indenture), to be created on or extend to or
otherwise arise upon or burden the Note Collateral or any part thereof
or any interest therein or the proceeds thereof (other than tax liens
arising by operation of law with respect to amounts not yet due) or
(C) permit the lien of this Indenture not to constitute a valid first
priority security interest in the Note Collateral; or
(v) elect to be classified as an association taxable
as a corporation for federal income tax purposes.
SECTION 3.09. ANNUAL STATEMENT AS TO COMPLIANCE. The Note Issuer
will deliver to the Indenture Trustee and the Rating Agencies not later than
September 30 of each year (commencing with September 30, 1999), an Officer's
Certificate stating, as to the Responsible Officer signing such Officer's
Certificate, that
(i) a review of the activities of the Note Issuer during the
preceding twelve months ended September 29 and of performance under
this Indenture has been made under such Responsible Officer's
supervision; and
(ii) to the best of such Responsible Officer's knowledge, based
on such review, the Note Issuer has in all material respects complied
with all conditions and covenants under this Indenture throughout such
twelve month period, or, if there has been a default in the compliance
of any such condition or covenant, specifying each such default known
to such Responsible Officer and the nature and status thereof
29
SECTION 3.10. NOTE ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
(a) The Note Issuer shall not consolidate or merge with or into any
other Person, unless
(i) the Person (if other than the Note Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any State
and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form and substance
satisfactory to the Indenture Trustee, the performance or observance
of every agreement and covenant of this Indenture on the part of the
Note Issuer to be performed or observed, all as provided herein and in
the applicable Trust Issuance Certificates and Series Supplements, if
any;
(ii) immediately after giving effect to such merger or
consolidation, no Default or Event of Default shall have occurred and
be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such merger or consolidation;
(iv) Illinois Power shall have delivered to the Grantee, the
Note Issuer, the Delaware Trustee and the Indenture Trustee an opinion
of independent tax counsel (as selected by, and in form and substance
reasonably satisfactory to, Illinois Power, and which may be based on
a ruling from the Internal Revenue Service) to the effect that such
consolidation or merger will not result in a material adverse federal
income tax consequence to Illinois Power, the Grantee, the Note
Issuer, the Delaware Trustee, the Indenture Trustee or the then
existing Holders;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Note Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each
stating that such consolidation or merger and such supplemental
indenture comply with this Section 3.10(a) and that all conditions
precedent herein provided for in this Section 3.10(a) with respect to
such transaction have been complied with (including any filing
required by the Exchange Act).
(b) Except as specifically provided herein, the Note Issuer shall
not sell, convey, exchange, transfer or otherwise dispose of any of its
properties or assets included in the Note Collateral, to any Person, unless
30
(i) the Person that acquires the properties and assets of the
Note Issuer, the conveyance or transfer of which is hereby restricted
shall (A) be a United States citizen or a Person organized and
existing under the laws of the United States of America or any State,
(B) expressly assumes, by an indenture supplemental hereto, executed
and delivered to the Indenture Trustee, in form and substance
satisfactory to the Indenture Trustee, the performance or observance
of every agreement and covenant of this Indenture on the part of the
Note Issuer to be performed or observed, all as provided herein and
in the applicable Trust Issuance Certificates or Series Supplements,
if any, (C) expressly agrees by means of such supplemental indenture
that all right, title and interest so sold, conveyed, exchanged,
transferred or otherwise disposed of shall be subject and subordinate
to the rights of Holders of the Notes, (D) unless otherwise provided
in the supplemental indenture referred to in clause (B) above,
expressly agrees to indemnify, defend and hold harmless the Note
Issuer against and from any loss, liability or expense arising under
or related to this Indenture and the Notes and (E) expressly agrees by
means of such supplemental indenture that such Person (or if a group
of Persons, then one specified Person) shall make all filings with the
SEC (and any other appropriate Person) required by the Exchange Act in
connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) Illinois Power shall have delivered an opinion of
independent tax counsel (as selected by, and in form and substance
reasonably satisfactory to, Illinois Power, and which may be based on
a ruling from the Internal Revenue Service) to the effect that such
transaction will not result in a material adverse federal income tax
consequence to Illinois Power, the Grantee, the Note Issuer, the
Delaware Trustee, the Indenture Trustee or the then existing Holders;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture pursuant to the Funding
Order or the Funding Law shall have been taken; and
(vi) the Note Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each
stating that such sale, conveyance, exchange, transfer or other
disposition and such supplemental indenture comply with this Section
3.10(b) and that all conditions precedent herein provided for in this
Section 3.10(b) with respect to such transaction have been complied
with (including any filing required by the Exchange Act).
31
SECTION 3.11. SUCCESSOR OR TRANSFEREE.
(a) Upon any consolidation or merger of the Note Issuer in
accordance with Section 3.10(a), the Person formed by or surviving such
consolidation or merger (if other than the Note Issuer) shall succeed to, and be
substituted for, and may exercise every right and power of, the Note Issuer
under this Indenture with the same effect as if such Person had been named as
the Note Issuer herein.
(b) Except as set forth in Section 6.07, upon a sale, conveyance,
exchange, transfer or other disposition of all the assets and properties of the
Note Issuer pursuant to Section 3.10(b), the Note Issuer and the Grantee will be
released from every covenant and agreement of this Indenture and the other Basic
Documents to be observed or performed on the part of the Note Issuer and the
Grantee with respect to the Notes and the Intangible Transition Property
immediately upon the delivery of written notice to the Indenture Trustee from
the Person acquiring such assets and properties stating that the Note Issuer and
the Grantee are to be so released.
SECTION 3.12. NO OTHER BUSINESS. The Note Issuer shall not engage
in any business other than financing, purchasing, owning and managing the
Intangible Transition Property and the other Note Collateral and the issuance of
the Notes in the manner contemplated by the Funding Order and this Indenture and
the Basic Documents and activities incidental thereto.
SECTION 3.13. NO BORROWING. The Note Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14. SERVICER'S OBLIGATIONS. The Note Issuer shall enforce
the Servicer's compliance with all of the Servicer's material obligations under
the Servicing Agreement.
SECTION 3.15. GUARANTEES LOANS ADVANCES AND OTHER LIABILITIES.
Except as otherwise contemplated by the Sale Agreement, any Subsequent Sale
Agreement, the Servicing Agreement or this Indenture, the Note Issuer shall not
make any loan or advance or credit to, or guarantee (directly or indirectly or
by an instrument having the effect of assuring another's payment or performance
on any obligation or capability of so doing or otherwise), endorse or otherwise
become contingently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase or acquire (or
agree contingently to do so) any stock, obligations, assets or securities of, or
any other interest in, or make any capital contribution to, any other Person.
SECTION 3.16. CAPITAL EXPENDITURES. Other than the purchase of
Intangible Transition Property from the Grantee on each Series Issuance Date and
other than expenditures made out of available funds in an aggregate amount not
to exceed $25,000 in any calendar year,
32
the Note Issuer shall not make any expenditure (by long-term or operating
lease or otherwise) for capital assets (either realty or personalty).
SECTION 3.17. RESTRICTED PAYMENTS. The Note Issuer shall not,
directly or indirectly, (i) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, to any owner of a beneficial interest in the Note Issuer or
otherwise with respect to any ownership or equity interest or similar security
in or of the Note Issuer, (ii) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or similar security or (iii) set
aside or otherwise segregate any amounts for any such purpose; PROVIDED,
HOWEVER, that, if no Event of Default shall have occurred and be continuing, the
Note Issuer may make, or cause to be made, any such distributions to any owner
of a beneficial interest in the Note Issuer or otherwise with respect to any
ownership or equity interest or similar security in or of the Note Issuer using
funds distributed to the Note Issuer pursuant to Section 8.02(d) to the extent
that such distributions would not cause the book value of the remaining equity
in the Note Issuer to decline below 0.5 percent of the original principal amount
of all Series of Notes which remain outstanding. The Note Issuer will not,
directly or indirectly, make payments to or distributions from the Collection
Account except in accordance with this Indenture and the Basic Documents.
SECTION 3.18. NOTICE OF EVENTS OF DEFAULT. The Note Issuer agrees
to give the Indenture Trustee and the Rating Agencies prompt written notice of
each Event of Default hereunder and each default on the part of the Grantee or
the Servicer of its obligations under the Sale Agreement, any Subsequent Sale
Agreement or the Servicing Agreement, respectively.
SECTION 3.19. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Indenture Trustee, the Note Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
SECTION 3.20. PURCHASE OF SUBSEQUENT TRANSITION PROPERTY.
(a) The Note Issuer may from time to time purchase Subsequent
Transition Property from the Grantee pursuant to a Subsequent Sale Agreement,
subject to the conditions specified in paragraph (b) below.
(b) The Note Issuer shall be permitted to purchase from the Grantee
Subsequent Transition Property and the proceeds thereof only upon the
satisfaction of each of the following conditions on or prior to the related
Subsequent Sale Date:
(i) the Grantee shall have provided the Note Issuer, the
Indenture Trustee and the Rating Agencies with written notice, which
shall be given not later than 10 days prior to the related Subsequent
Sale Date, specifying the Subsequent Sale Date for such Subsequent
Transition Property and the aggregate amount of the
33
IFC's related to such Subsequent Transition Property, and shall have
provided any information reasonably requested by any of the foregoing
Persons with respect to the Subsequent Transition Property then being
conveyed to the Note Issuer;
(ii) Illinois Power, the Grantee and the Note Issuer shall have
delivered to the Indenture Trustee a duly executed Subsequent Grant
Agreement in substantially the form of the Grant Agreement and a duly
executed Subsequent Sale Agreement in substantially the form of the
Sale Agreement and a filing shall have been made pursuant to Section
18-107 of the Funding Law;
(iii) as of such Subsequent Sale Date, the Grantee was not
insolvent and will not have been made insolvent by such transfer and
the Grantee is not aware of any pending insolvency with respect to
itself,
(iv) the Rating Agency Condition shall have been satisfied with
respect to such conveyance;
(v) Illinois Power shall have delivered to the Grantee, the
Note Issuer, the Delaware Trustee and the Indenture Trustee an opinion
of independent tax counsel and/or a ruling from the Internal Revenue
Service (as selected by, and in form and substance reasonably
satisfactory to, Illinois Power) to the effect that, for federal
income tax purposes (i) the ICC's issuance of the Subsequent Funding
Order creating and establishing the Subsequent Transition Property in
the Grantee, and the assignment pursuant to such Subsequent Sale
Agreement of such Subsequent Transition Property, will not result in
gross income to the Grantee, the Note Issuer or Illinois Power, and
the future revenues relating to the Subsequent Transition Property and
the assessment of the IFCs authorized in such Subsequent Funding Order
(except for revenue related to certain lump sum payments) will be
included in Illinois Power's gross income in the year in which the
related electrical service is provided to Customers, and (ii) the
assignment pursuant to such Subsequent Sale Agreement will not
adversely affect the characterization of the then Outstanding Notes as
obligations of Illinois Power;
(vi) as of such Subsequent Sale Date, no breach by Illinois
Power of its representations, warranties or covenants in the related
Subsequent Grant Agreement and no breach by the Grantee of its
representations, warranties or covenants in the related Subsequent
Sale Agreement and no Servicer Default shall exist;
(vii) as of such Subsequent Sale Date, the Note Issuer shall
have sufficient funds available to pay the purchase price for the
Subsequent Transition Property to be conveyed on such date and all
conditions to the issuance of one or
34
more Series of Notes intended to provide such funds set forth in
Section 2.10 of this Indenture shall have been satisfied;
(viii) the Note Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate confirming the satisfaction of each
condition precedent specified in this paragraph (b);
(ix) (A) the Note Issuer shall have delivered to the Rating
Agencies any Opinions of Counsel requested by the Rating Agencies and
(B) the Note Issuer shall have delivered to the Indenture Trustee the
Opinion of Counsel required by Section 3.06(c) of this Indenture; and
(x) the Grantee and the Note Issuer shall have taken any
action required to maintain the first perfected ownership interest of
the Note Issuer in the Subsequent Transition Property and the proceeds
thereof, and the Note Issuer shall have taken any action required to
maintain the first perfected security interest of the Indenture
Trustee in the Subsequent Transition Property and the proceeds
thereof.
ARTICLE IV
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE DEFEASANCE.
(a) This Indenture shall cease to be of further effect with respect
to the Notes of any Series and the Indenture Trustee, on reasonable demand of
and at the expense of the Note Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes of such Series, when
(A) either
(1) all Notes of such Series theretofore
authenticated and delivered (other than (i) Notes that have been
destroyed, lost or stolen and that have been replaced or paid as
provided in Section 2.06 and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Note Issuer and thereafter repaid to the Note Issuer or discharged
from such trust, as provided in Section 3.03) have been delivered to
the Indenture Trustee for cancellation; or
(2) either (x)the Scheduled Maturity Date has
occurred with respect to all Notes of such Series not theretofore
delivered to the Indenture Trustee for cancellation, (y) such Notes
will be due and payable on their respective
35
Scheduled Maturity Dates within one year, or (z) such Notes are to be
called for redemption within one year in accordance with the provisions
of the applicable Trust Issuance Certificate or Series Supplement, if
any, and in any such case, the Note Issuer has irrevocably deposited or
caused to be irrevocably deposited with the Indenture Trustee cash, in
trust for such purpose, in an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due;
(B) the Note Issuer has paid or caused to be paid all
other sums payable hereunder by the Note Issuer with respect to such Series; and
(C) the Note Issuer has delivered to the Indenture Trustee
an Officer's Certificate, an Opinion of Counsel and (if required by the TIA or
the Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section 11.01(a)
and each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture with respect to Notes of such
Series have been complied with.
(b) Subject to Sections 4.01(c) and 4.02, the Note Issuer at any
time may terminate (i) all its obligations under this Indenture with respect to
the Notes of any Series ("Legal Defeasance Option") or (ii) its obligations
under Sections 3.04, 3.05, 3.06, 3.07, 3.08, 3.09, 3.10, 3.12, 3.13, 3.14, 3.15,
3.16, 3.17, 3.18 and 3.19 and the operation of Section 5.01(iv) ("Covenant
Defeasance Option") with respect to any Series of Notes. The Note Issuer may
exercise the Legal Defeasance Option with respect to any Series of Notes
notwithstanding its prior exercise of the Covenant Defeasance Option with
respect to such Series.
If the Note Issuer exercises the Legal Defeasance Option with respect
to any Series, the maturity of the Notes of such Series may not be accelerated
because of an Event of Default. If the Note Issuer exercises the Covenant
Defeasance Option with respect to any Series, the maturity of the Notes of such
Series may not be accelerated because of an Event of Default specified in
Section 5.01(iv).
Upon satisfaction of the conditions set forth herein to the exercise
of the Legal Defeasance Option or the Covenant Defeasance Option with respect to
any Series of Notes, the Indenture Trustee, on reasonable demand of and at the
expense of the Note Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of the obligations that are terminated pursuant to
such exercise.
(c) Notwithstanding Sections 4.01(a) and 4.01(b) above, (i) rights
of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Holders to receive payments of
principal, premium, if any, and interest, (iv) Sections 4.03 and 4.04, (v) the
rights, obligations and immunities of the Indenture Trustee hereunder (including
the rights of the Indenture Trustee under Section 6.07 and the obligations of
the
36
Indenture Trustee under Section 4.03) and (vi) the rights of Holders as
beneficiaries hereof with respect to the property deposited with the Indenture
Trustee payable to all or any of them, shall survive until the Notes of the
Series as to which this Indenture or certain obligations hereunder have been
satisfied and discharged pursuant to Section 4.01(a) or 4.01(b) have been paid
in full. Thereafter the obligations in Sections 6.07 and 4.04 with respect to
such Series shall survive.
SECTION 4.02. CONDITIONS TO DEFEASANCE. The Note Issuer may
exercise the Legal Defeasance Option or the Covenant Defeasance Option with
respect to any Series of Notes only if:
(a) the Note Issuer irrevocably deposits or causes to be
deposited in trust with the Indenture Trustee cash or U.S. Government
Obligations for the payment of principal of and premium, if any, and
interest on such Notes to the Scheduled Maturity Dates or Optional
Redemption Date therefor, as applicable;
(b) the Note Issuer delivers to the Indenture Trustee a
certificate from a nationally recognized firm of Independent
accountants expressing its opinion that the payments of principal and
interest when due and without reinvestment of the deposited U.S.
Government Obligations plus any deposited cash without investment will
provide cash at such times and in such amounts (but, in the case of
the Legal Defeasance Option only, not more than such amounts) as will
be sufficient to pay in respect of the Notes of such Series
(i) subject to clause (ii), principal in accordance with the Expected
Amortization Schedule therefor, (ii) if such Series is to be redeemed,
the Optional Redemption Price therefor on the Optional Redemption Date
and (iii) interest when due;
(c) in the case of the Legal Defeasance Option, 91 days pass
after the deposit is made and during the 91-day period no Default
specified in Section 5.01(v) or (vi) occurs which is continuing at the
end of the period;
(d) no Default has occurred and is continuing on the day of
such deposit and after giving effect thereto;
(e) in the case of an exercise of the Legal Defeasance Option,
the Note Issuer shall have delivered to the Indenture Trustee an
Opinion of Counsel stating that (i) the Note Issuer has received from,
or there has been published by, the Internal Revenue Service a ruling,
or (ii) since the date of execution of this Indenture, there has been
a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that,
the Holders of the Notes of such Series will not recognize income,
gain or loss for Federal income tax purposes as a result of such legal
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such legal defeasance had not occurred;
37
(f) in the case of an exercise of the Covenant Defeasance
Option, the Note Issuer shall have delivered to the Indenture Trustee
an Opinion of Counsel to the effect that the Holders of the Notes of
such Series will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant
defeasance had not occurred;
(g) the Note Issuer delivers to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the satisfaction and discharge of the Notes of
such Series to the extent contemplated by this Article IV have been
complied with; and
(h) the Rating Agency Condition shall have been satisfied with
respect to the exercise of any Legal Defeasance Option or Covenant
Defeasance Option.
Before or after a deposit pursuant to this Section 4.02 with respect
to any Series of Notes, the Note Issuer may make arrangements satisfactory to
the Indenture Trustee for the redemption of such Notes at a future date in
accordance with Article X.
SECTION 4.03. APPLICATION OF TRUST MONEY. All moneys or U.S.
Government Obligations deposited with the Indenture Trustee pursuant to Section
4.01 or 4.02 hereof shall be held in trust and applied by it, in accordance with
the provisions of the Notes and this Indenture, to the payment, either directly
or through any Paying Agent, as the Indenture Trustee may determine, to the
Holders of the particular Notes for the payment or redemption of which such
moneys have been deposited with the Indenture Trustee, of all sums due and to
become due thereon for principal, premium, if any, and interest; but such moneys
need not be segregated from other funds except to the extent required herein or
in the Servicing Agreement or required by law.
SECTION 4.04. REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture or the Covenant
Defeasance Option or Legal Defeasance Option with respect to the Notes of any
Series, all moneys then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes shall,
upon demand of the Note Issuer, be paid to the Indenture Trustee to be held and
applied according to Section 3.03 and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
ARTICLE V
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. "Event of Default" with respect to
any Series, wherever used herein, means any one of the following events
(whatever the reason for
38
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(i) default in the payment of any interest on any Note when
the same becomes due and payable, and such default shall continue for
a period of five days; or
(ii) default in the payment of the then unpaid principal of any
Note of any Series on the Final Maturity Date for such Series; or
(iii) default in the payment of the Optional Redemption Price
for any Note on the Optional Redemption Date therefor; or
(iv) default in the observance or performance in any material
respect of any covenant or agreement of the Note Issuer made in this
Indenture (other than defaults specified in clauses (i), (ii) or (iii)
above), or any representation or warranty of the Note Issuer made in
this Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall
have been made, and such default shall continue or not be cured, or
the circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 30 days after there
shall have been given, by registered or certified mail, to the Note
Issuer by the Indenture Trustee or to the Note Issuer and the
Indenture Trustee by the Holders of at least 25 percent of the
Outstanding Amount of the Notes of such Series, a written notice
specifying such default or incorrect representation or warranty and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(v) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Note Issuer or
any substantial part of the Note Collateral in an involuntary case
under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Note Issuer or for any substantial part of the Note
Collateral, or ordering the winding-up or liquidation of the Note
Issuer's affairs, and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(vi) the commencement by the Note Issuer of a voluntary case
under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by the Note
Issuer to the entry of an order for
39
relief in an involuntary case under any such law, or the consent by the
Note Issuer to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Note Issuer or for any substantial part of the Note
Collateral, or the making by the Note Issuer of any general assignment
for the benefit of creditors, or the failure by the Note Issuer
generally to pay its debts as such debts become due, or the taking of
action by the Note Issuer in furtherance of any of the foregoing; or
(vii) any act or failure to act by the State of Illinois or any
of its agencies (including the ICC), officers or employees which
violates or is not in accordance with the State Pledge; or
(viii) any other event designated as such in a Trust Issuance
Certificate or Series Supplement, if any.
The Note Issuer shall deliver to a Responsible Officer of the
Indenture Trustee and the Rating Agencies, within five days after a Responsible
Officer of the Note Issuer has actual knowledge of the occurrence thereof,
written notice in the form of an Officer's Certificate of any event (i) which is
an Event of Default under clause (vii) or (ii) which with the giving of notice
and the lapse of time would become an Event of Default under clause (iv),
including, in each case, the status of such Event of Default and what action the
Note Issuer is taking or proposes to take with respect thereto.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default under clause (vii) of
Section 5.01) should occur and be continuing with respect to any Series, then
and in every such case the Indenture Trustee or the Holders of Notes
representing not less than a majority of the Outstanding Amount of the Notes of
all Series may declare all the Notes to be immediately due and payable, by a
notice in writing to the Note Issuer (and to the Indenture Trustee if given by
Holders), and upon any such declaration the unpaid principal amount of the Notes
of all Series, together with accrued and unpaid interest thereon through the
date of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Holders of Notes representing a majority of the Outstanding Amount of the Notes
of all Series, by written notice to the Note Issuer and the Indenture Trustee,
may rescind and annul such declaration and its consequences if:
(i) the Note Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
40
(A) all payments of principal of and premium, if any,
and interest on all Notes of all Series and all other amounts that
would then be due hereunder or upon such Notes if the Event of Default
giving rise to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and
counsel; and
(ii) all Events of Default with respect to all Series, other
than the nonpayment of the principal of the Notes of all Series that
has become due solely by such acceleration, have been cured or waived
as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY INDENTURE TRUSTEE.
(a) If an Event of Default under Section 5.01(i), (ii) or (iii)
has occurred and is continuing with respect to any Series, subject to Section
11.18, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and,
subject to the limitations on recourse set forth herein, may enforce the same
and collect in the manner provided by law out of the Note Collateral and the
proceeds thereof, the whole amount then due and payable on the Notes of such
Series for principal, premium, if any, and interest, with interest upon the
overdue principal and premium, if any, and, to the extent payment at such rate
of interest shall be legally enforceable, upon overdue installments of interest,
at the respective rate borne by the Notes of such Series or the applicable Class
of such Series and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
(b) If an Event of Default (other than Event of Default under
clause (vii) of Section 5.01) occurs and is continuing with respect to any
Series, the Indenture Trustee may, as more particularly provided in Section
5.04, in its discretion, proceed to protect and enforce its rights and the
rights of the Holders of such Series, by such appropriate Proceedings as the
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
41
(c) If an Event of Default under Section 5.01(v) or (vi) has
occurred and is continuing, the Indenture Trustee, irrespective of whether the
principal of any Notes of any Series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in any Proceedings
related to such Event of Default or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal, premium, if any, and interest owing and unpaid in
respect of the Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee, except as a
result of negligence or bad faith) and of the Holders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes in any election of a trustee in
bankruptcy, a standby trustee or Person performing similar functions
in any such Proceedings; and
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Holders and of the
Indenture Trustee on their behalf,
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Holders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Holders, to pay to the
Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any Holder in
any such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under this
Indenture, or under any of the Notes of any Series, may be enforced by the
Indenture Trustee without the possession
42
of any of the Notes of such Series or the production thereof in any trial or
other Proceedings relative thereto, and any such action or proceedings
instituted by the Indenture Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders of the Notes of
such Series.
(f) In any Proceedings brought by the Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this Indenture
to which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Notes, and it shall not be necessary to
make any Holder a party to any such Proceedings.
SECTION 5.04. REMEDIES; PRIORITIES.
(a) If an Event of Default (other than an Event of Default under
clause (vii) of Section 5.01) shall have occurred and be continuing with respect
to a Series, the Indenture Trustee may do one or more of the following (subject
to Section 5.05):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes of such Series or under this Indenture with respect thereto,
whether by declaration of acceleration or otherwise, and, subject to
the limitations on recovery set forth herein, enforce any judgment
obtained, and collect moneys adjudged due upon such Notes;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Note
Collateral;
(iii) exercise any remedies of a secured party under the UCC or
the Funding Law and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and the
Holders of the Notes of such Series; and
(iv) sell the Note Collateral or any portion thereof or rights
or interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
PROVIDED, HOWEVER, that the Indenture Trustee may not sell or otherwise
liquidate any portion of the Note Collateral following such an Event of Default,
other than an Event of Default described in Section 5.01(i), (ii) or (iii), with
respect to any Series unless (A) the Holders of 100 percent of the Outstanding
Amount of the Notes of all Series consent thereto, (B) the proceeds of such sale
or liquidation distributable to the Holders of all Series are sufficient to
discharge in full all amounts then due and unpaid upon such Notes for principal,
premium, if any, and interest after taking into account payment of all amounts
due prior thereto pursuant to the priorities set forth
43
in Section 8.02(d) or (C) the Indenture Trustee determines that the Note
Collateral will not continue to provide sufficient funds for all payments on
the Notes of all Series as they would have become due if the Notes had not
been declared due and payable, and the Indenture Trustee obtains the consent
of Holders of 66-2/3 percent of the Outstanding Amount of the Notes of all
Series. In determining such sufficiency or insufficiency with respect to
clause (B) and (C), the Indenture Trustee may, but need not, obtain and
conclusively rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Note Collateral for such purpose
(b) If an Event of Default under clause (vii) of Section 5.01 shall
have occurred and be continuing, the Indenture Trustee, for the benefit of the
Holders, shall be entitled and empowered to the extent permitted by applicable
law, to institute or participate in Proceedings reasonably necessary to compel
performance of or to enforce the State Pledge and to collect any monetary
damages incurred by the Holders or the Indenture Trustee as a result of any such
Event of Default, and may prosecute any such Proceeding to final judgment or
decree. The rights and remedies set forth in this Section 5.04(b) and the
obligations of the Servicer under Section 5.02(c) of the Servicing Agreement
shall be the sole and exclusive remedies for such an Event of Default.
(c) If the Indenture Trustee collects any money pursuant to this
Article V, it shall pay out such money in accordance with the priorities set
forth in Section 8.02(d).
SECTION 5.05. OPTIONAL PRESERVATION OF THE NOTE COLLATERAL. If the
Notes of all Series have been declared to be due and payable under Section 5.02
following an Event of Default and such declaration and its consequences have not
been rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Note Collateral. It is the desire of the parties
hereto and the Holders that there be at all times sufficient funds for the
payment of principal of and premium, if any, and interest on the Notes, and the
Indenture Trustee shall take such desire into account when determining whether
or not to maintain possession of the Note Collateral. In determining whether to
maintain possession of the Note Collateral, the Indenture Trustee may, but need
not, obtain and conclusively rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Note Collateral for such
purpose.
SECTION 5.06. LIMITATION OF SUITS. No Holder of any Note of any
Series shall have any right to institute any Proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(i) such Holder previously has given written notice to the
Indenture Trustee of a continuing Event of Default with respect to
such Series;
(ii) the Holders of not less than 25 percent of the Outstanding
Amount of the Notes of all Series have made written request to the
Indenture Trustee to
44
institute such Proceeding in respect of such Event of Default in its
own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture
Trustee indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute
such Proceedings; and
(v) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Holders of a majority of the Outstanding Amount of the Notes of all
Series;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a majority of the Outstanding Amount of the Notes of
all Series, the Indenture Trustee in its sole discretion may determine what
action, if any, shall be taken, notwithstanding any other provisions of this
Indenture.
SECTION 5.07. UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, (a) to receive payment of (i) the interest, if any, on such Note
on the due dates thereof expressed in such Note or in this Indenture, (ii) the
unpaid principal, if any, of such Notes on the Final Maturity Date therefor or
(iii) in the case of redemption, receive payment of the unpaid principal and
premium, if any, and interest, if any, on such Note on the Optional Redemption
Date therefor and (b) to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Holder.
SECTION 5.08. RESTORATION OF RIGHTS AND REMEDIES. If the Indenture
Trustee or any Holder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Holder, then and in every such case the Note Issuer, the
Indenture Trustee and the Holders shall, subject to any determination in such
Proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights
45
and remedies of the Indenture Trustee and the Holders shall continue as though
no such Proceeding had been instituted.
SECTION 5.09. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10. DELAY OR OMISSION NOT A WAIVER. No delay or omission
of the Indenture Trustee or any Holder to exercise any right or remedy accruing
upon any Default or Event of Default shall impair any such right or remedy or
constitute a waiver of any such Default or Event of Default or an acquiescence
therein. Every right and remedy given by this Article V or by law to the
Indenture Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Indenture Trustee or by the Holders, as
the case may be.
SECTION 5.11. CONTROL BY HOLDERS. The Holders of a majority of the
Outstanding Amount of the Notes of all Series (or, if less than all Series or
Classes are affected, the affected Series or Class or Classes) shall have the
right to direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee with respect to the Notes of such
Series or Class or Classes or exercising any trust or power conferred on the
Indenture Trustee with respect to such Series or Class or Classes; PROVIDED that
(i) such direction shall not be in conflict with any rule of
law or with this Indenture;
(ii) subject to the express terms of Section 5.04, any
direction to the Indenture Trustee to sell or liquidate the Note
Collateral shall be by the Holders of Notes representing not less than
100 percent of the Outstanding Amount of the Notes of all Series;
(iii) if the conditions set forth in Section 5.05 have been
satisfied and the Indenture Trustee elects to retain the Note
Collateral pursuant to such Section, then any direction to the
Indenture Trustee by Holders of Notes representing less than 100
percent of the Outstanding Amount of the Notes of all Series to sell
or liquidate the Note Collateral shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction;
46
PROVIDED, HOWEVER, that, the Indenture Trustee's duties shall be subject to
Section 6.01, and the Indenture Trustee need not take any action that it
determines might involve it in liability or might materially adversely affect
the rights of any Holders not consenting to such action.
SECTION 5.12. WAIVER OF PAST DEFAULTS. Prior to the declaration of
the acceleration of the maturity of the Notes of all Series as provided in
Section 5.02, the Holders of Notes representing not less than a majority of the
Outstanding Amount of the Notes of all Series may waive any past Default or
Event of Default and its consequences except a Default (a) in payment of
principal of or premium, if any, or interest on any of the Notes or (b) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Note of all Series or Classes
affected. In the case of any such waiver, the Note Issuer, the Indenture Trustee
and the Holders of the Notes shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.13. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Holder, or group of Holders,
in each case holding in the aggregate more than 10 percent of the Outstanding
Amount of the Notes of a Series or (c) any suit instituted by any Holder for the
enforcement of the payment of (i) interest on any Note on or after the due dates
expressed in such Note and in this Indenture, (ii) the unpaid principal, if any,
of any Note on or after the Final Maturity Date therefor or (iii) in the case of
redemption, the unpaid principal of and premium, if any, and interest on any
Note on or after the Optional Redemption Date therefor.
SECTION 5.14. WAIVER OF STAY OR EXTENSION LAWS. The Note Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Note Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or
47
impede the execution of any power herein granted to the Indenture Trustee, but
will suffer and permit the execution of every such power as though no such
law had been enacted.
SECTION 5.15. ACTION ON NOTES. The Indenture Trustee's right to
seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Holders shall be impaired by
the recovery of any judgment by the Indenture Trustee against the Note Issuer or
by the levy of any execution under such judgment upon any portion of the Note
Collateral or any other assets of the Note Issuer.
SECTION 5.16. PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
(a) Promptly following a request from the Indenture Trustee to do
so and at the Note Issuer's expense, the Note Issuer agrees to take all such
lawful action as the Indenture Trustee may request to compel or secure the
performance and observance by Illinois Power, the Grantee and the Servicer, as
applicable, of each of their obligations to the Note Issuer under or in
connection with the Grant Agreement or any Subsequent Grant Agreement, the Sale
Agreement, or any Subsequent Sale Agreement and the Servicing Agreement,
respectively, in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Note Issuer
under or in connection with any such agreements, respectively, to the extent and
in the manner directed by the Indenture Trustee, including the transmission of
notices of default on the part of Illinois Power, the Grantee or the Servicer
thereunder and the institution of legal or administrative actions or proceedings
to compel or secure performance by Illinois Power, the Grantee or the Servicer
of each of their respective obligations under the Grant Agreement, any
Subsequent Grant Agreement, the Sale Agreement, any Subsequent Sale Agreement
and the Servicing Agreement, respectively.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3 percent of the Outstanding Amount of the Notes of all Series
shall, subject to Article VI, exercise all rights, remedies, powers, privileges
and claims of the Note Issuer against the Grantee or the Servicer under or in
connection with the Sale Agreement, any Subsequent Sale Agreement and the
Servicing Agreement, respectively, including the right or power to take any
action to compel or secure performance or observance by the Grantee or the
Servicer of each of their obligations to the Note Issuer thereunder and to give
any consent, request, notice, direction, approval, extension or waiver under the
Sale Agreement, any Subsequent Sale Agreement or the Servicing Agreement,
respectively, and any right of the Note Issuer to take such action shall be
suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
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SECTION 6.01. DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph
(b) of this Section 6.01;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 5.11.
(d) Every provision of this Indenture that in any way relates to
the Indenture Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Note Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture, the Sale Agreement, any Subsequent Sale Agreement and the
Servicing Agreement.
49
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
(i) In the event that the Indenture Trustee is also acting as
Paying Agent or Note Registrar hereunder, the rights and protections of this
Article VI shall also be afforded to the Indenture Trustee in its capacity as
Paying Agent or Note Registrar.
(j) Except as expressly set forth in the Basic Documents, the
Indenture Trustee shall have no obligation to administer, service or collect
Intangible Transition Property or to maintain, monitor or otherwise supervise
the administration, servicing or collection of the Intangible Transition
Property.
SECTION 6.02. RIGHTS OF INDENTURE TRUSTEE.
(a) The Indenture Trustee may conclusively rely and shall be fully
protected in relying on any document believed by it to be genuine and to have
been signed or presented by the proper person. The Indenture Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it
may require and shall be entitled to receive an Officer's Certificate or an
Opinion of Counsel that such action is required or permitted hereunder. The
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; PROVIDED, HOWEVER, that the Indenture Trustee's
conduct does not constitute willful misconduct, negligence or bad faith.
50
(e) The Indenture Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
SECTION 6.03. INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Note Issuer or its affiliates with the
same rights it would have if it were not Indenture Trustee. Any Paying Agent,
Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.04. INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Note Issuer's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Note Issuer in the Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Indenture Trustee's certificate of authentication.
SECTION 6.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing with respect to any Series and if it is actually known to a
Responsible Officer of the Indenture Trustee, the Indenture Trustee shall mail
to each Holder of Notes of all Series notice of the Default within 90 days after
it occurs. Except in the case of a Default in payment of principal of and
premium, if any, or interest on any Note, the Indenture Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Holders. Except
as provided in the first sentence of this Section 6.05, in no event shall the
Indenture Trustee be deemed to have knowledge of a Default.
SECTION 6.06. REPORTS BY INDENTURE TRUSTEE TO HOLDERS.
(a) So long as Notes are Outstanding and the Indenture Trustee is
the Note Registrar and Paying Agent, within the prescribed period of time for
tax reporting purposes after the end of each calendar year it shall deliver to
each relevant current or former Holder such information in its possession as may
be required to enable such Holder to prepare its Federal and state income tax
returns.
(b) With respect to each Series of Notes, on or prior to each
Payment Date or Special Payment Date therefor, the Indenture Trustee will
deliver to each Holder of such Notes on such Payment Date or Special Payment
Date a statement as provided and prepared by the Servicer which will include (to
the extent applicable) the following information (and any other information so
specified in the applicable Trust Issuance Certificate or Series Supplement, if
any,)
51
as to the Notes of such Series with respect to such Payment Date or Special
Payment Date or the period since the previous Payment Date, as applicable:
(i) the amount of the payment to Holders allocable to
principal, if any;
(ii) the amount of the payment to Holders allocable to
interest;
(iii) the aggregate Outstanding Amount of such Notes, after
giving effect to any payments allocated to principal reported under
(i) above; and
(iv) the difference, if any, between the amount specified in
subsection (iii) above and the Outstanding Amount specified in the
related Expected Amortization Schedule.
(c) The Note Issuer shall send a copy of each of the Certificate of
Compliance delivered to it pursuant to Section [3.03] of the Servicing Agreement
and the Annual Accountant's Report delivered to it pursuant to Section [3.04] of
the Servicing Agreement to the Rating Agencies. A copy of such certificate and
report may be obtained by any Holder by a request in writing to the Indenture
Trustee.
SECTION 6.07. COMPENSATION AND INDEMNITY. The Note Issuer shall pay
to the Indenture Trustee from time to time reasonable compensation for its
services. The Indenture Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Note Issuer shall
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Note Issuer shall indemnify the
Indenture Trustee and its officers, directors, employees and agents against any
and all loss, liability or expense (including attorneys' fees and expenses)
incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Indenture Trustee shall notify the Note
Issuer as soon as is reasonably practicable of any claim for which it may seek
indemnity. Failure by the Indenture Trustee to so notify the Note Issuer shall
not relieve the Note Issuer of its obligations hereunder. The Note Issuer shall
defend the claim and the Indenture Trustee may have separate counsel and the
Note Issuer shall pay the fees and expenses of such counsel. The Note Issuer
need not reimburse any expense or indemnify against any loss, liability or
expense incurred by the Indenture Trustee through the Indenture Trustee's own
wilful misconduct, negligence or bad faith.
The payment obligations to the Indenture Trustee pursuant to this
Section shall survive the discharge of this Indenture or the earlier resignation
or removal of the Indenture Trustee. When the Indenture Trustee incurs expenses
after the occurrence of a Default specified in Section 5.01(v) or (vi) with
respect to the Note Issuer, the expenses are intended to constitute
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expenses of administration under Title 11 of the United States Code or any
other applicable Federal or state bankruptcy, insolvency or similar law.
SECTION 6.08. REPLACEMENT OF INDENTURE TRUSTEE. The Indenture
Trustee may resign at any time by so notifying the Note Issuer, provided that no
such resignation shall be effective until either (a) the Note Collateral has
been completely liquidated and the proceeds of the liquidation distributed to
the Holders or (b) a successor trustee having the qualifications set forth in
Section 6.11 has been designated and has accepted such trusteeship. The Holders
of a majority in Outstanding Amount of the Notes of all Series may remove the
Indenture Trustee by so notifying the Indenture Trustee and may appoint a
successor Indenture Trustee. The Note Issuer shall remove the Indenture Trustee
if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee gives notice of resignation or is removed or
if a vacancy exists in the office of Indenture Trustee for any reason (the
Indenture Trustee in such event being referred to herein as the retiring
Indenture Trustee), the Note Issuer shall promptly appoint a successor Indenture
Trustee.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Note Issuer.
Thereupon the resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have all the rights,
powers and duties of the Indenture Trustee under this Indenture. The successor
Indenture Trustee shall mail a notice of its succession to Holders. The retiring
Indenture Trustee shall promptly transfer all property held by it as Indenture
Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Note Issuer or the Holders of a majority in Outstanding
Amount of the Notes of all Series may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Holder
may petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
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Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Note Issuer's obligations under Section 6.07 shall continue
for the benefit of the retiring Indenture Trustee.
SECTION 6.09. SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee;
PROVIDED, however, that if such successor Indenture Trustee is not eligible
under Section 6.11, then the successor Indenture Trustee shall be replaced in
accordance with Section 6.08.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the trust created by this Indenture or the Note Collateral may
at the time be located, the Indenture Trustee shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a
co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the trust created by this Indenture or the Note Collateral, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Holders, such title to the Note Collateral, or any part hereof, and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Indenture Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 6.11 and no notice to Holders
of the appointment of any co-trustee or separate trustee shall be required under
Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act
54
separately without the Indenture Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Indenture Trustee shall
be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding
of title to the Note Collateral or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Indenture Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Indenture on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11. ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a) and Section
26(a)(i) of the Investment Company Act of 1940. The Indenture Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition and it shall have a long term debt
rating of A (or the equivalent thereof) or better by all of the Rating Agencies
from which a rating is available. The Indenture Trustee shall comply with TIA
Section 310(b), including the optional provision permitted by the second
sentence of TIA Section 310(b)(9); PROVIDED, HOWEVER, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities of the Note Issuer are outstanding if
the requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
55
SECTION 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST NOTE
ISSUER. The Indenture Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). An Indenture Trustee
who has resigned or been removed shall be subject to TIA Section 311(a) to
the extent indicated.
SECTION 6.13. REPRESENTATIONS AND WARRANTIES OF INDENTURE TRUSTEE.
The Indenture Trustee hereby represents and warrants that:
(a) the Indenture Trustee is a banking corporation validly existing
and in good standing under the laws of the State of Illinois; and
(b) the Indenture Trustee has full power, authority and legal right
to execute, deliver and perform this Indenture and the Basic Documents to which
the Indenture Trustee is a party and has taken all necessary action to authorize
the execution, delivery, and performance by it of this Indenture and such Basic
Documents.
ARTICLE VII
HOLDERS' LISTS AND REPORTS
SECTION 7.01. NOTE ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND
ADDRESSES OF HOLDERS. The Note Issuer will furnish or cause to be furnished to
the Indenture Trustee (a) not more than five days after the earlier of (i) each
Record Date with respect to each Series and (ii) three months after the last
Record Date with respect to each Series, a list, in such form as the Indenture
Trustee may reasonably require, of the names and addresses of the Holders of
Notes of such Series as of such Record Date, (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Note Issuer of any such request, a list of similar form and content as of a date
not more than 10 days prior to the time such list is furnished; PROVIDED,
HOWEVER, that so long as the Indenture Trustee is the Note Registrar, no such
list shall be required to be furnished.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.01 upon receipt
of a new list so furnished.
(b) Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or under the
Notes.
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(c) The Note Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c).
SECTION 7.03. REPORTS BY NOTE ISSUER.
(a) The Note Issuer shall:
(i) so long as the Note Issuer is required to file
such documents with the SEC, provide to the Indenture Trustee, within
15 days after the Note Issuer is required to file the same with the
SEC, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing
as the SEC may from time to time by rules and regulations prescribe)
which the Note Issuer may be required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act;
(ii) provide to the Indenture Trustee and file with
the SEC in accordance with rules and regulations prescribed from time
to time by the SEC such additional information, documents and reports
with respect to compliance by the Note Issuer with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Holders described in
TIA Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Note Issuer pursuant to clauses
(i) and (ii) of this Section 7.03 (a) as may be required by rules and
regulations prescribed from time to time by the SEC.
(b) Unless the Note Issuer otherwise determines, the fiscal year of
the Note Issuer shall end on December 31 of each year.
SECTION 7.04. REPORTS BY INDENTURE TRUSTEE. If required by TIA
Section 313(a), within 60 days after September 30 of each year, commencing with
the year after the issuance of the Notes of any Series, the Indenture Trustee
shall mail to each Holder of Notes of such Series as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA
Section 313(a). The Indenture Trustee also shall comply with TIA Section 313(b);
PROVIDED, HOWEVER, that the initial report so issued shall be delivered not more
than 12 months after the initial issuance of each Series.
A copy of each report at the time of its mailing to Holders shall be
filed by the Servicer with the SEC and each stock exchange, if any, on which the
Notes are listed. The Note Issuer shall notify the Indenture Trustee in writing
if and when the Notes are listed on any stock exchange.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01. COLLECTION OF MONEY. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Note Collateral, the Indenture Trustee may take such action
as may be appropriate to enforce such payment or performance, subject to Article
VI, including the institution and prosecution of appropriate Proceedings. Any
such action shall be without prejudice to any right to claim a Default or Event
of Default under this Indenture and any right to proceed thereafter as provided
in Article V.
SECTION 8.02. COLLECTION ACCOUNT.
(a) Prior to the Series Issuance Date for the first Series of Notes
issued hereunder, the Note Issuer shall open, at the Indenture Trustee's
Corporate Trust Office, or at another Eligible Institution, one or more
segregated trust accounts in the Indenture Trustee's name for the deposit of
Estimated IFC Collections (collectively, the "Collection Account"). The
Collection Account will consist of four subaccounts: a general subaccount (the
"General Subaccount"), a reserve subaccount (the "Reserve Subaccount"), a
subaccount for the Overcollateralization Amount (the "Overcollateralization
Subaccount") and a capital subaccount (the "Capital Subaccount"). All amounts in
the Collection Account not allocated to any other subaccount shall be allocated
to the General Subaccount. Prior to the initial Payment Date, all amounts in the
Collection Account (other than funds deposited into the Capital Subaccount, up
to the Required Capital Level for any Series of Notes) shall be allocated to the
General Subaccount. All references to the Collection Account shall be deemed to
include reference to all subaccounts contained therein. Withdrawals from and
deposits to each of the foregoing subaccounts of the Collection Account shall be
made as set forth in Section 8.02(d) and (e). The Collection Account shall at
all times be maintained in an Eligible Deposit Account and only the Indenture
Trustee shall have access to the Collection Account for the purpose of making
deposits in and withdrawals from the Collection Account in accordance with this
Indenture. Funds in the Collection Account shall not be commingled with any
other moneys. All moneys deposited from time to time in the Collection Account,
all deposits therein pursuant to this Indenture, and all investments made in
Eligible Investments with such moneys, including all income or other gain from
such investments, shall be held by the Indenture Trustee in the Collection
Account as part of the Note Collateral as herein provided.
(b) The Indenture Trustee shall have sole dominion and exclusive
control over all moneys in the Collection Account and shall apply such amounts
therein as provided in this
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Section 8.02. The Indenture Trustee shall also pay from the Collection
Account any amounts requested to be paid by or to the Servicer pursuant to
Section [6.11(d)(ii)] of the Servicing Agreement.
(c) IFC Collections shall be deposited in the General Subaccount as
provided in Section [6.11] of the Servicing Agreement. All deposits to and
withdrawals from the Collection Account, all allocations to the subaccounts of
the Collection Account and any amounts to be paid to the Servicer under
Section 8.02(b) shall be made by the Indenture Trustee in accordance with the
written instructions provided by the Servicer in the Monthly Servicer's
Certificate, the Quarterly Servicer's Certificate, or upon other written notice
provided by the Servicer pursuant to Section 6.11(d)(ii) of the Servicing
Agreement, as applicable.
(d) On each Payment Date for any Series of Notes, the Indenture
Trustee shall apply all amounts on deposit in the Collection Account, including
all net earnings thereon, to pay the following amounts, in accordance with the
Quarterly Servicer's Certificate, in the following priority:
(i) all amounts owed by the Note Issuer to the Indenture
Trustee (including legal fees and expenses) shall be paid to the
Indenture Trustee (subject to Section 6.07) and all amounts owed to
the Delaware Trustee in connection with its acting as Trustee under
the Trust Agreement shall be paid to the Delaware Trustee, as
appropriate;
(ii) the Servicing Fee for such Payment Date and all unpaid
Servicing Fees for prior Payment Dates shall be paid to the Servicer;
(iii) the Administration Fee and all unpaid Administration Fees,
if any, from prior Payment Dates shall be paid to the Administrator;
(iv) so long as no Default or Event of Default shall have
occurred and be continuing or would result from such payment, all
other accrued and unpaid Operating Expenses shall be paid to the
Persons entitled thereto or, if such have been previously paid by the
Note Issuer, to the Note Issuer in reimbursement thereof; PROVIDED
that the amount paid on each Payment Date pursuant to this clause (iv)
shall not exceed $100,000;
(v) any overdue Quarterly Interest (together with, to the
extent lawful, interest on such overdue Quarterly Interest at the
applicable Note Interest Rate) and then Quarterly Interest for such
Payment Date with respect to each Series of Notes shall be paid to the
Holders of such Series of Notes;
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(vi) principal due and payable on the Notes of any Series as a
result of an Event of Default or on the Final Maturity Date of the
Notes of such Series, shall be paid to the Holders of such Series of
Notes;
(vii) Quarterly Principal for such Payment Date with respect to
each Series of Notes shall be paid to the Holders of such Series of
Notes;
(viii) unpaid Operating Expenses shall be paid to the Persons
entitled thereto or, if such have been previously paid by the Note
Issuer, to the Note Issuer or as it directs in reimbursement thereof;
(ix) the amount, if any, by which the Required Capital Level
with respect to all Outstanding Series of Notes exceeds the amount in
the Capital Subaccount as of such Payment Date shall be allocated to
the Capital Subaccount;
(x) the amount, if any, by which the Required
Overcollateralization Level with respect to all Outstanding Series of
Notes exceeds the amount in the Overcollateralization Subaccount as of
such Payment Date shall be allocated to the Overcollateralization
Subaccount;
(xi) funds up to the amount of net earnings on amounts in the
Collection Account for the prior quarter without cumulation shall be
paid to the Note Issuer, free from the lien of this Indenture;
(xii) the balance, if any, shall be allocated to the Reserve
Subaccount for distribution on subsequent Payment Dates; and
(xiii) after principal of and premium, if any, and interest on
all Notes of all Series, and all of the other foregoing amounts, have
been paid in full, the balance (including all amounts then held in the
Overcollateralization Subaccount, the Capital Subaccount and the
Reserve Subaccount), if any, shall be paid to the Note Issuer, free
from the lien of this Indenture.
All payments to the Holders of a Series pursuant to clauses (v), (vi) and (vii)
above or, in the case of clause (vi), if there is more than one Series of Notes
outstanding all payments to the Holders of all Series, shall be made to such
Holders pro rata based on the respective principal amounts of Notes of such
Series held by such Holders, unless, in the case of a Series comprised of two or
more Classes, the Trust Issuance Certificate or Series Supplement, if any, for
such Series provides otherwise. Payments in respect of principal of and premium,
if any, and interest on any Class of Notes will be made on a pro rata basis
among all the Holders of such Class,
(e) If on any Payment Date funds on deposit in the General
Subaccount are insufficient to make the payments contemplated by clauses (i)
through (vii) of Section 8.02(d)
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above, the Indenture Trustee shall (i) FIRST, draw from amounts on deposit in
the Reserve Subaccount, (ii) SECOND, draw from amounts on deposit in the
Overcollateralization Subaccount and (iii) THIRD, draw from amounts on
deposit in the Capital Subaccount, in each case, up to the amount of such
shortfall in order to make the payments contemplated by clauses (i) through
(vii) of Section 8.02(d). In addition, if on any Payment Date funds on
deposit in the General Subaccount are insufficient to make the allocations
contemplated by clauses (ix) and (x) above, the Indenture Trustee shall draw
from amounts on deposit in the Reserve Subaccount to make such allocations
notwithstanding the fact that on such Payment Date the allocation
contemplated by clause (viii) above may not have been fully satisfied.
SECTION 8.03. GENERAL PROVISIONS REGARDING THE COLLECTION ACCOUNT.
(a) So long as no Default or Event of Default shall have occurred
and be continuing, all or a portion of the funds in the Collection Account shall
be invested in Eligible Investments and reinvested by the Indenture Trustee upon
Issuer Order; PROVIDED, HOWEVER, that (i) such Eligible Investments shall not
mature later than the Business Day prior to the next Payment Date for the
related Series of Notes and (ii) such Eligible Investments shall not be sold,
liquidated or otherwise disposed of at a loss prior to the maturity thereof. All
income or other gain from investments of moneys deposited in the Collection
Account shall be deposited by the Indenture Trustee in the Collection Account,
and any loss resulting from such investments shall be charged to the Collection
Account. The Note Issuer will not direct the Indenture Trustee to make any
investment of any funds or to sell any investment held in the Collection Account
unless the security interest Granted and perfected in such account will continue
to be perfected in such investment or the proceeds of such sale, in either case
without any further action by any Person, and, in connection with any direction
to the Indenture Trustee to make any such investment or sale, if requested by
the Indenture Trustee, the Note Issuer shall deliver to the Indenture Trustee an
Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. In no
event shall the Indenture Trustee be liable for the selection of Eligible
Investments or for investment losses incurred thereon. The Indenture Trustee
shall have no liability in respect of losses incurred as a result of the
liquidation of any Eligible Investment prior to its stated maturity or the
failure of the Note Issuer or the Servicer to provide timely written investment
direction. The Indenture Trustee shall have no obligation to invest or reinvest
any amounts held hereunder in the absence of written investment direction
pursuant to an Issuer Order.
(b) Subject to Section 6.01(c), the Indenture Trustee shall not in
any way be held liable by reason of any insufficiency in the Collection Account
resulting from any loss on any Eligible Investment included therein except for
losses attributable to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial capacity
as principal obligor and not as trustee, in accordance with their terms.
(c) If (i) the Note Issuer shall have failed to give written
investment directions for any funds on deposit in the Collection Account to the
Indenture Trustee by 11:00 a.m. Eastern Time (or such other time as may be
agreed by the Note Issuer and Indenture Trustee) on any
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Business Day; or (ii) a Default or Event of Default shall have occurred and
be continuing with respect to the Notes of any Series but the Notes of such
Series shall not have been declared due and payable pursuant to Section 5.02,
then the Indenture Trustee shall, to the fullest extent practicable, invest
and reinvest funds in the Collection Account in one or more investments which
qualify as investments in money market funds described under paragraph (d) of
the definition of Eligible Investments.
(d) The parties hereto acknowledge that the Servicer may, pursuant
to the Servicing Agreement, select Eligible Investments on behalf of the Note
Issuer.
SECTION 8.04. RELEASE OF NOTE COLLATERAL.
(a) The Indenture Trustee may, and when required by the provisions
of this Indenture shall, execute instruments to release property from the lien
of this Indenture, or convey the Indenture Trustee's interest in the same, in a
manner and under circumstances that are not inconsistent with the provisions of
this Indenture. No party relying upon an instrument executed by the Indenture
Trustee as provided in this Article VIII shall be bound to ascertain the
Indenture Trustee's authority, inquire into the satisfaction of any conditions
precedent or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding, release any remaining portion of the Note Collateral that secured
the Notes from the lien of this Indenture and release to the Note Issuer or any
other Person entitled thereto any funds then on deposit in the Collection
Account. The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.04(b) only upon receipt of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA) Independent Certificates in accordance with TIA
Sections 314(c) and 3 14(d)(1) meeting the applicable requirements of
Section 11.01.
SECTION 8.05. OPINION OF COUNSEL. The Indenture Trustee shall
receive at least seven days' notice when requested by the Note Issuer to take
any action pursuant to Section 8.04(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Holders in contravention of the provisions of this Indenture;
PROVIDED, HOWEVER, that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the Note Collateral. Counsel rendering any
such opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
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SECTION 8.06. REPORTS BY INDEPENDENT ACCOUNTANTS. As of the Closing
Date, the Note Issuer shall appoint a firm of Independent certified public
accountants of recognized national reputation for purposes of preparing and
delivering the reports or certificates of such accountants required by this
Indenture and the related Trust Issuance Certificates or Series Supplements, if
any. In the event such firm requires the Indenture Trustee to agree to the
procedures performed by such firm, the Note Issuer shall direct the Indenture
Trustee in writing to so agree; it being understood and agreed that the
Indenture Trustee will deliver such letter of agreement in conclusive reliance
upon the direction of the Note Issuer, and the Indenture Trustee makes no
independent inquiry or investigation to, and shall have no obligation or
liability in respect of the sufficiency, validity or correctness of such
procedures. Upon any resignation by such firm the Note Issuer shall provide
written notice thereof to the Indenture Trustee and shall promptly appoint a
successor thereto that shall also be a firm of Independent certified public
accountants of recognized national reputation. If the Note Issuer shall fail to
appoint a successor to a firm of Independent certified public accountants that
has resigned within 15 days after such resignation, the Indenture Trustee shall
promptly notify the Note Issuer of such failure in writing. If the Note Issuer
shall not have appointed a successor within 10 days thereafter the Indenture
Trustee shall promptly appoint a successor firm of Independent certified public
accountants of recognized national reputation; PROVIDED that the Indenture
Trustee shall have no liability with respect to such appointment if the
Indenture Trustee acted with due care with respect thereto. The fees of such
Independent certified public accountants and its successor shall be payable by
the Note Issuer.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
(a) Without the consent of the Holders of any Notes but with prior
notice to the Rating Agencies, the Note Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter into
one or more indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of the execution
thereof), in form satisfactory to the Indenture Trustee, for any of the
following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Note Issuer,
and the assumption by any
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such successor of the covenants of the Note Issuer herein and in the
Notes contained;
(iii) to add to the covenants of the Note Issuer, for the
benefit of the Holders of the Notes, or to surrender any right or
power herein conferred upon the Note Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; PROVIDED that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect the interests of the Holders of
the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI;
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
Federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA; or
(viii) to set forth the terms of any Series that has not
theretofore been authorized by a Trust Issuance Certificate or Series
Supplement, if any, or to provide for the execution and delivery of
any Swap Agreement.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Note Issuer and the Indenture Trustee, when authorized by
an Issuer Order, may, also without the consent of any of the Holders of the
Notes, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of; this Indenture or of modifying in any manner the
rights of the Holders of the Notes under this Indenture; PROVIDED, HOWEVER,
that (i) such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the
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interests of the Holders and (ii) the Rating Agency Condition shall have been
satisfied with respect thereto.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
The Note Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with prior notice to the Rating Agencies and with the
consent of the Holders of not less than a majority of the Outstanding Amount
of the Notes of each Series or Class to be affected, by Act of such Holders
delivered to the Note Issuer and the Indenture Trustee, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of; this Indenture or of modifying in any manner the rights of the Holders of
the Notes under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
of each Series or Class affected thereby:
(i) change the date of payment of any installment of principal
of or premium, if any, or interest on any Note, or reduce the
principal amount thereof; the interest rate thereon or premium, if
any, with respect thereto, change any Optional Redemption Price,
change the provisions of this Indenture and the related applicable
Trust Issuance Certificate or Series Supplement, if any, relating to
the application of collections on, or the proceeds of the sale of; the
Note Collateral to payment of principal of or premium, if any, or
interest on the Notes, or change any place of payment where, or the
coin or currency in which, any Note or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any
such amount due on the Notes on or after the respective due dates
thereof (or, in the case of optional redemption, on or after the
Optional Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes or of a Series or Class thereof; 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
certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Indenture Trustee to direct the Note
Issuer to sell or liquidate the Note Collateral pursuant to Section
5.04;
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(v) modify any provision of this Section to decrease any
minimum percentage specified herein necessary to approve any
amendments to any provisions of this Indenture;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest, principal or premium, if any, due on any Note on any Payment
Date (including the calculation of any of the individual components of
such calculation);
(vii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Note Collateral or, except as otherwise permitted or contemplated
herein, terminate the lien of this Indenture on any property at any
time subject hereto or deprive the Holder of any Note of the security
provided by the lien of this Indenture; or
(viii) cause any material adverse federal income tax consequences
to Illinois Power, the Grantee, the Note Issuer, the Delaware Trustee,
the Indenture Trustee or the then existing Holders.
The Indenture Trustee may in its discretion determine whether or not
any Notes of a Series or Class would be affected by any supplemental
indenture and any such determination shall be conclusive upon the Holders of
all Notes of such Series or Class, whether theretofore or thereafter
authenticated and delivered hereunder. The Indenture Trustee shall not be
liable for any such determination made in good faith.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof
Promptly after the execution by the Note Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section, the Note Issuer
shall mail to the Rating Agencies and the Holders of the Notes to which such
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing,
or permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.01 and 6.02, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated
66
to, enter into any such supplemental indenture that affects the Indenture
Trustee's own rights, duties, liabilities or immunities under this Indenture
or otherwise.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution
of any supplemental indenture pursuant to the provisions hereof; this Indenture
shall be and be deemed to be modified and amended in accordance therewith with
respect to each Series or Class of Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and immunities
under this Indenture of the Indenture Trustee, the Note Issuer and the Holders
of the Notes shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT. Every amendment
of this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
SECTION 9.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Note Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Note Issuer, to any such supplemental indenture
may be prepared and executed by the Note Issuer and authenticated and delivered
by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01. OPTIONAL REDEMPTION BY NOTE ISSUER. The Note Issuer
may, at its option, redeem all, but not less than all, of the Notes of a
Series (a) on any Payment Date if; after giving effect to payments that would
otherwise be made on such Payment Date, the Outstanding Amount of any such
Series of Notes has been reduced to less than five percent of the initial
principal balance thereof; or (b) if and to the extent specified in the
related Trust Issuance Certificate or Series Supplement, if any, on any
Payment Date on or prior to December 31, 2004, from the proceeds of the
issuance and sale of the Notes of any other Series. In addition, a Series of
Notes shall be subject to redemption if and to the extent provided in the
related Trust Issuance Certificate or Series Supplement, if any. In no event,
however, shall any Notes be redeemable unless the Rating Agency Condition
shall be satisfied with respect to each Rating Agency other than Moody's, to
which prior written notice of such redemption shall have been given, with
respect to any Notes which remain Outstanding after such redemption. The
redemption price in
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any case shall be equal to the outstanding principal amount of the Notes to
be redeemed plus accrued and unpaid interest thereon at the Note Interest
Rate to the Optional Redemption Date (such price being called the "Optional
Redemption Price"). If the Note Issuer shall elect to redeem the Notes of a
Series pursuant to this Section 10.01, it shall furnish written notice (which
notice shall state all items listed in Section 10.02) of such election to the
Indenture Trustee and the Rating Agencies not more than 50 and not less than
25 days prior to the Optional Redemption Date and shall deposit with the
Indenture Trustee not later than one Business Day prior to the Optional
Redemption Date the Optional Redemption Price of the Notes to be redeemed
whereupon all such Notes shall be due and payable on the Optional Redemption
Date upon the furnishing of a notice complying with Section 10.02 hereof to
each Holder of the Notes of such Series pursuant to this Section 10.01.
SECTION 10.02. FORM OF OPTIONAL REDEMPTION NOTICE. Unless otherwise
specified in the Trust Issuance Certificate or Series Supplement, if any,
relating to a Series of Notes, notice of redemption under Section 10.01 hereof
shall be given by the Indenture Trustee by first-class mail, postage prepaid,
mailed not less than five days nor more than 25 days prior to the applicable
Optional Redemption Date to each Holder of Notes to be redeemed, as of the close
of business on the Record Date preceding the applicable Optional Redemption Date
at such Holder's address appearing in the Note Register.
All notices of redemption shall state:
(1) the Optional Redemption Date;
(2) the Optional Redemption Price;
(3) the place where such Notes are to be surrendered for payment of
the Optional Redemption Price (which shall be the office or
agency of the Note Issuer to be maintained as provided in
Section 3.02 hereof);
(4) the CUSP number, if applicable; and
(5) the principal amount of Notes to be redeemed.
Notice of redemption of the Notes to be redeemed shall be given by the
Indenture Trustee in the name and at the expense of the Note Issuer. Failure to
give notice of redemption, or any defect therein, to any Holder of any Note
selected for redemption shall not impair or affect the validity of the
redemption of any other Note.
SECTION 10.03. NOTES PAYABLE ON OPTIONAL REDEMPTION DATE. Notice
of redemption having been given as provided in Section 10.02 hereof; the
Notes to be redeemed shall on the Optional Redemption Date become due and
payable at the Optional Redemption Price and (unless the Note Issuer shall
default in the payment of the Optional Redemption Price) no interest
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shall accrue on the Optional Redemption Price for any period after the date
to which accrued interest is calculated for purposes of calculating the
Optional Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
(a) Upon any application or request by the Note Issuer to the
Indenture Trustee to take any action under any provision of this Indenture, the
Note Issuer shall furnish to the Indenture Trustee (i) an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (ii) an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Note Collateral or other
property or securities with the Indenture Trustee that is to be made the
basis for the release of any property or securities subject to the lien of
this Indenture, the Note Issuer shall, in addition to any obligation imposed
in Section 11.01(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such
69
certificate as to the fair value (within 90 days of such deposit) to the Note
Issuer of the Note Collateral or other property or securities to be so
deposited.
(ii) Whenever the Note Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause (i)
above, the Note Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to the Note
Issuer of the securities to be so deposited and of all other such securities
made the basis of any such withdrawal or release since the commencement of
the then-current fiscal year of the Note Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and this clause (ii), is
ten percent or more of the Outstanding Amount of the Notes of all Series, but
such a certificate need not be furnished with respect to any securities so
deposited, if the fair value thereof to the Note Issuer as set forth in the
related Officer's Certificate is less than the lesser of (A) $25,000 or (B)
one percent of the Outstanding Amount of the Notes of all Series.
(iii) Whenever any property or securities are to be
released from the lien of this Indenture other than pursuant to Section
8.02(d), the Note Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days of such
release) of the property or securities proposed to be released and stating
that in the opinion of such person the proposed release will not impair the
security under this Indenture in contravention of the provisions hereof
(iv) Whenever the Note Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signatory thereof as to the matters described in clause (iii)
above, the Note Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property with respect to such Series,
or securities released from the lien of this Indenture (other than pursuant
to Section 8.02(d) hereof) since the commencement of the then-current
calendar year, as set forth in the certificates required by clause (iii)
above and this clause (iv), equals 10 percent or more of the Outstanding
Amount of the Notes of all Series, but such certificate need not be furnished
in the case of any release of property or securities if the fair value
thereof as set forth in the related Officer's Certificate is less than the
lesser of (A) $25,000 or (B) one percent of the then Outstanding Amount of
the Notes of all Series.
(v) Notwithstanding Section 2.16 or any other provision
of this Section 11.01, the Indenture Trustee may (A) collect, liquidate, sell
or otherwise dispose of the Intangible Transition Property and the other Note
Collateral as and to the extent permitted or required by the Basic Documents
and (B) make cash payments out of the Collection Account as and to the extent
permitted or required by the Basic Documents.
SECTION 11.02. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE.
In any case where several matters are required to be certified by, or covered
by an opinion of; any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion
70
of; only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of a Responsible Officer of the Note Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of; or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate of a Responsible Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of; or representations by, an officer or officers of
the Servicer, the Grantee, the Note Issuer or the Administrator, stating that
the information with respect to such factual matters is in the possession of the
Servicer, the Grantee, the Note Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Note
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Note Issuer 5 compliance with any term
hereof; it is intended that the truth and accuracy, at the time of the granting
of such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Note Issuer to have such
application granted or to the sufficiency of such certificate or report. The
foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in Article VI.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 11.03. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and except as herein otherwise expressly provided such
action shall become effective when such instrument or instruments are delivered
to the Indenture Trustee, and, where it is hereby expressly required, to the
Note Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
71
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Indenture Trustee and the Note Issuer, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof; in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Note Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
SECTION 11.04. NOTICES, ETC. TO INDENTURE TRUSTEE, NOTE ISSUER AND
RATING AGENCIES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to or filed with:
(i) the Indenture Trustee by any Holder or by the
Note Issuer shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing by facsimile transmission,
first-class mail or overnight delivery service to or with the Indenture
Trustee at its Corporate Trust Office, or
(ii) the Note Issuer by the Indenture Trustee or by
any Holder shall be sufficient for every purpose hereunder if in
writing and mailed, first-class, postage prepaid, to the Note Issuer
addressed to: Illinois Power Special Purpose Trust, Attention:
[_______________] or at any other address previously furnished in
writing to the Indenture Trustee by the Note Issuer. The Note Issuer
shall promptly transmit any notice received by it from the Holders to
the Indenture Trustee.
(b) Notices required to be given to the Rating Agencies by the Note
Issuer or the Indenture Trustee shall be in writing, personally delivered or
mailed by certified mail, return receipt requested to (i) in the case of
Moody's, to: Xxxxx'x Investors Service, Inc., ABS Monitoring Department, 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) in the case of Standard & Poor's,
to: Standard & Poor's Corporation, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx
00000, Attention of Asset Backed Surveillance Department, (iii) in the case of
Fitch IBCA, to Fitch IBCA, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: ABS Surveillance, and (iv) in the case of Duff & Xxxxxx, to
Xxxx & Xxxxxx Credit Rating Co., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Asset- Backed Monitoring Group.
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SECTION 11.05. NOTICES TO HOLDERS WAIVER. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class, postage prepaid to each Holder affected by such event, at such
Holder's address as it appears on the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders, and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Indenture Trustee
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
SECTION 11.06. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof
SECTION 11.08. SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Indenture and the Notes by the Note Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors.
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SECTION 11.09. SEPARABILITY. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 11.10. BENEFITS OF INDENTURE. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Holders, and any other
party secured hereunder, and any other Person with an ownership interest in any
part of the Note Collateral, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 11.11. LEGAL HOLIDAYS. In any case where the date on which
any payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.12. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.13. COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.14. RECORDING OF INDENTURE. If this Indenture is subject
to recording in any appropriate public recording offices, such recording is to
be effected by the Note Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Indenture Trustee or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Holders or any other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture.
SECTION 11.15. TRUST OBLIGATION. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Note Issuer or
the Indenture Trustee on the Notes or under this Indenture or any certificate
or other writing delivered in connection herewith or therewith, against (i)
the Indenture Trustee or the Delaware Trustee in its respective individual
capacity, (ii) any owner of a beneficial interest in the Note Issuer
(including the Grantee and Illinois Power) or (iii) any partner, owner,
beneficiary, agent, officer, or employee of the Indenture Trustee or the
Delaware Trustee in its respective individual capacity, any holder of a
beneficial interest in the Indenture Trustee or of any successor or assign of
any of them in their respective individual or corporate capacities, except as
any such Person may have expressly
74
agreed (it being understood that none of the Indenture Trustee, the Delaware
Trustee, the Grantee and ComEd have any such obligations in their respective
individual or corporate capacities).
SECTION 11.16. NO RECOURSE TO NOTE ISSUER. Notwithstanding any
provision of this Indenture or any Trust Issuance Certificate or any Series
Supplement to the contrary, Holders shall have no recourse against the Note
Issuer, but shall look only to the Note Collateral with respect to any amounts
due to the Holders hereunder and under the Notes.
SECTION 11.17. INSPECTION. The Note Issuer agrees that, on
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Note Issuer's normal business hours, to examine all the
books of account, records, reports, and other papers of the Note Issuer, to
make copies and extracts therefrom, to cause such books to be audited by
Independent certified public accountants, and to discuss the Note Issuer's
affairs, finances and accounts with the Note Issuer's officers, employees,
and Independent certified public accountants, all at such reasonable times
and as often as may be reasonably requested. The Indenture Trustee shall and
shall cause its representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the
extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder. Notwithstanding
anything herein to the contrary, the foregoing shall not be construed to
prohibit (i) disclosure of any and all information that is or becomes
publicly known, or information obtained by the Indenture Trustee from sources
other than the Note Issuer, provided such parties are rightfully in
possession of such information, (ii) disclosure of any and all information
(A) if required to do so by any applicable statute, law, rule or regulation,
(B) pursuant to any subpoena, civil investigative demand or similar demand or
request of any court or regulatory authority exercising its proper
jurisdiction, (C) in any preliminary or final offering circular, registration
statement or contract or other document pertaining to the transactions
contemplated by this Indenture or the Basic Documents approved in advance by
the Note Issuer or (D) to any affiliate, independent or internal auditor,
agent, employee or attorney of the Indenture Trustee having a need to know
the same, provided that such parties agree to be bound by the confidentiality
provisions contained in this Section 11.17, or (iii) any other disclosure
authorized by the Note Issuer.
SECTION 11.18. NO PETITION. The Indenture Trustee, by entering
into this Indenture, and each Holder, by accepting a Note (or interest
therein) issued hereunder, hereby covenant and agree that they shall not,
prior to the date which is one year and one day after the termination of the
Indenture, acquiesce, petition or otherwise invoke or cause the Grantee, the
Note Issuer or the Delaware Trustee to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case
against the Grantee, the Note Issuer or the Delaware Trustee under any
insolvency law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Grantee, the Note
Issuer or the Delaware Trustee or any substantial part of its respective
property, or ordering the winding up or liquidation of the affairs of the
Grantee, the Note Issuer or the Delaware Trustee.
75
IN WITNESS WHEREOF, the Note Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized and duly attested, all as of the day and year first
above written.
ILLINOIS POWER SPECIAL PURPOSE TRUST
By: FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Delaware Trustee
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
XXXXXX TRUST AND SAVINGS BANK,
not in its individual capacity but solely
as Indenture Trustee
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
76
STATE OF ILLINOIS, )
) SS:
COUNTY OF XXXX )
On the __ day of [ ], 1998, before me, [ ],a Notary Public in and
for said county and state, personally appeared [ ], personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person and officer
whose name is subscribed to the within instrument and acknowledged to me that
such person executed the same in such person's authorized capacity, and that by
the signature on the instrument Xxxxxx Trust and Savings Bank, a banking
corporation organized under the laws of the State of Illinois, and the entity
upon whose behalf the person acted, executed this instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
My commission expires:
STATE OF ILLINOIS, )
) SS:
COUNTY OF XXXX )
On the ____ day of [ ], 1998, before me, [ ],a Notary Public in and
for said county and state, personally appeared [ ], personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person and officer
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument Illinois Power Special Purpose Trust, a Delaware business trust and
the entity upon whose behalf the person acted, executed this instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
My commission expires:
EXHIBIT A
REGISTERED $__________
NO. _________
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO._______
THE PRINCIPAL OF THIS SERIES [ ], CLASS [ - ] ("THIS CLASS [ - ]
NOTE") WILL BE PAID IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS [ - ] NOTE AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THE HOLDER OF THIS NOTE HAS NO
RECOURSE TO THE ISSUER HEREOF AND AGREES TO LOOK ONLY TO THE NOTE COLLATERAL, AS
DESCRIBED IN THE INDENTURE AND ANY RELATED Trust Issuance Certificate OR SERIES
SUPPLEMENT REFERRED TO ON THE REVERSE HEREOF, FOR PAYMENT OF ANY AMOUNTS DUE
HEREUNDER. ALL OBLIGATIONS OF THE ISSUER OF THIS CLASS [ - ] NOTE UNDER THE
TERMS OF THE INDENTURE WILL BE RELEASED AND DISCHARGED UPON PAYMENT IN FULL
HEREOF OR AS OTHERWISE PROVIDED IN SECTION 3.10(B) OR ARTICLE IV OF THE
INDENTURE. THE HOLDER OF THIS CLASS [ - ] NOTE HEREBY COVENANTS AND AGREES THAT
PRIOR TO THE DATE WHICH IS ONE (1) YEAR AND ONE (1) DAY AFTER THE PAYMENT IN
FULL OF THE SERIES [ ] CLASS [ - ] NOTES, IT WILL NOT INSTITUTE AGAINST, OR
JOIN ANY OTHER PERSON IN INSTITUTING AGAINST, THE ISSUER ANY BANKRUPTCY,
REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS OR OTHER
SIMILAR PROCEEDING UNDER THE LAWS OF THE UNITED STATES OR ANY STATE OF THE
UNITED STATES. NOTHING IN THIS PARAGRAPH SHALL PRECLUDE, OR BE DEEMED TO ESTOP,
SUCH HOLDER (A) FROM TAKING OR OMITTING TO TAKE ANY ACTION PRIOR TO SUCH DATE IN
(I) ANY CASE OR PROCEEDING VOLUNTARILY FILED OR COMMENCED BY OR ON BEHALF OF THE
ISSUER UNDER OR PURSUANT TO ANY SUCH LAW OR (II) ANY INVOLUNTARY CASE OR
PROCEEDING PERTAINING TO THE ISSUER WHICH IS FILED OR COMMENCED BY OR ON BEHALF
OF A PERSON OTHER THAN SUCH HOLDER AND IS NOT JOINED IN BY SUCH HOLDER (OR ANY
PERSON TO WHICH SUCH HOLDER SHALL HAVE ASSIGNED, TRANSFERRED OR OTHERWISE
CONVEYED ANY PART OF THE OBLIGATIONS OF THE ISSUER HEREUNDER) UNDER OR PURSUANT
TO ANY SUCH LAW, OR (B) FROM COMMENCING OR PROSECUTING ANY LEGAL ACTION WHICH IS
NOT AN INVOLUNTARY CASE OR PROCEEDING UNDER OR PURSUANT TO ANY SUCH LAW AGAINST
THE ISSUER OR ANY OF ITS PROPERTIES. TRANSFERS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO
A-1
TRANSFERS IN THE CLEARING AGENCY OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE.
ILLINOIS POWER SPECIAL PURPOSE TRUST
NOTES, SERIES [ ], CLASS [ - ].
INTEREST ORIGINAL PRINCIPAL FINAL MATURITY
RATE AMOUNT DATE
-------- ------------------ --------------
Illinois Power Special Purchase Trust, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Note Issuer"), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the Original Principal Amount shown above
[in quarterly installments] on the Payment Dates and in the amounts specified
on the reverse hereof or, if less, the amounts determined pursuant to Section
8.02 of the Indenture, in each year, commencing on the date determined as
provided on the reverse hereof and ending on or before the Final Maturity
Date shown above and to pay interest, at the Interest Rate shown above, on
each [March 15, June 15, September 15 and December 15] or if any such day is
not a Business Day, the next succeeding Business Day, commencing on [ ]and
continuing until the earlier of the payment in full of the principal hereof
and the Final Maturity Date (each a "Payment Date"), on the principal amount
of this Series [ ], Class [ - ] Note (hereinafter referred to as "this
Class [ - ] Note"). Interest on this Class [ - ] Note will accrue for each
Payment Date from the most recent Payment Date on which interest has been
paid to but excluding such Payment Date or, if no interest has yet been paid,
from [ ]. Interest will be computed on the basis of [specify method of
computation]. Such principal of and interest on this Class [ - ] Note
shall be paid in the manner specified on the reverse hereof
The principal of and interest on this Class [ - ] Note are payable
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All payments
made by the Note Issuer with respect to this Class [ - ] Note shall be
applied first to interest due and payable on this Class [ - ] Note as
provided above and then to the unpaid principal of and premium, if any, on
this Class [ - ] Note, all in the manner set forth in Section 8.02 of the
Indenture.
A-2
Reference is made to the further provisions of this Class [ - ] Note
set forth on the reverse hereof; which shall have the same effect as though
fully set forth on the face of this Class [ - ] Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class
[ - ] Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof; or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Note Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer.
Date: ILLINOIS POWER SPECIAL PURPOSE TRUST
By: FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Delaware Trustee
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
A-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:_______________ , ____
This is one of the Series [ ], Class [ - ] Notes, designated above
and referred to in the within-mentioned Indenture.
XXXXXX TRUST AND SAVINGS BANK,
not in its individual capacity but solely
as Indenture Trustee
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
A-4
[REVERSE OF NOTE](1)
This Series 199[ ]- [ ], Class [ - ] Note is one of a duly
authorized issue of Notes of the Note Issuer (herein called the "Notes"),
issued and to be issued in one or more Series, which Series are issuable in
one or more Classes, and the Series [ ] Notes consists of [ ] Classes,
including this Class [ - ]Note (herein called the "Class [ - ] Notes"), all
issued and to be issued under an Indenture dated as of [ ], 1998, (the
"Indenture"), between the Note Issuer and Xxxxxx Trust and Savings Bank, as
Indenture Trustee (the "Indenture Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Note Issuer, the
Indenture Trustee and the Holders of the Notes. All terms used in this Class
[ - ] Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in the Indenture.
The Class [ - ] Notes, the other Classes of Series [ ] Notes (all
of such Classes being referred to herein as "Series [ ] Notes") and any
other Series of Notes issued by the Note Issuer are and will be equally and
ratably secured by the Note Collateral pledged as security therefor as
provided in the Indenture.
The principal of this Class [ ] Note shall be payable on each
Payment Date only to the extent that amounts in the Collection Account are
available therefor, and only until the outstanding principal balance thereof
on the preceding Payment Date (after giving effect to all payments of
principal, if any, made on the preceding Payment Date) has been reduced to
the principal balance specified in the Expected Amortization Schedule which
is attached to the related Trust Issuance Certificate or Series Supplement,
if any, as Schedule A, unless payable earlier either because (x) an Event of
Default shall have occurred and be continuing and the Indenture Trustee or
the Holders of Notes representing not less than a majority of the Outstanding
Amount of the Notes of all Series have declared the Notes of all Series to be
immediately due and payable in accordance with Section 5.02 of the Indenture
or (y) the Note Issuer, at its option, shall have called for the redemption
of the Series [ ] Notes pursuant to Section 10.01 of the Indenture. However,
actual principal payments may be made in lesser than expected amounts and at
later than expected times as determined pursuant to Section 8.02 of the
Indenture. The entire unpaid principal amount of this Class [ - ] Note shall
be due and payable on the earlier of the Final Maturity Date hereof and the
Optional Redemption Date, if any. Notwithstanding the foregoing, the entire
unpaid principal amount of the Notes shall be due and payable, if not then
previously paid, on the date on which an Event of Default shall have occurred
and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the Notes
of all Series have declared the Notes of all Series to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All
-----------------------
(1) The form of the reverse of a Note is substantially as follows, unless
otherwise specified in the related Trust Issuance Certificate or Series
Supplement.
A-5
principal payments on the Class [ - ] Notes shall be made pro rata to the Class
[ - ] Holders entitled thereto based on the respective principal amounts of the
Class [ - ] Notes held by them.
Payments of interest on this Class [ - ] Note due and payable on each
Payment Date, together with the installment of principal or premium, if any,
shall be made by check mailed first-class, postage prepaid, to the Person whose
name appears as the Registered Holder of this Class [ - ] Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on the
Record Date or in such other manner as may be provided in the related Trust
Issuance Certificate or Series Supplement, if any, except for the final
installment of principal and premium, if any, payable with respect to this Class
[ - ] Note on a Payment Date which shall be payable as provided below. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Class [ - ] Note be submitted for notation of
payment. Any reduction in the principal amount of this Class [ - ] Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment Date
shall be binding upon all future Holders of this Class [ - ] Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof; whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class [ - ] Note on a Payment Date,
then the Indenture Trustee, in the name of and on behalf of the Note Issuer,
will notify the Person who was the Registered Holder hereof as of the Record
Date preceding such Payment Date by notice mailed no later than five days prior
to such final Payment Date and shall specify that such final installment will be
payable only upon presentation and surrender of this Class [ - ] Note and shall
specify the place where this Class [ - ] Note may be presented and surrendered
for payment of such installment.
The Note Issuer shall pay interest on overdue installments of interest
at the Note Interest Rate to the extent lawful.
As provided in the Indenture, the Class [ - ] Notes may be redeemed,
in whole but not in part, at the option of the Note Issuer on any Payment Date
at the Optional Redemption Price if; after giving effect to payments that would
otherwise be made on such Payment Date, the Outstanding Amount of the Class
[ - ] Notes has been reduced to less than five percent of the initial principal
balance thereof.
This Note is a transitional funding instrument as such term is defined
in the Funding Law. Principal and interest due and payable on this Note are
payable from and secured primarily by intangible transition property created and
established by a transitional funding order obtained from the Illinois Commerce
Commission pursuant to the Funding Law. Intangible transition property consists
of the right to impose and collect certain charges (defined in the Funding Law
as "instrument funding charges") to be included in regular electric utility
bills of existing and future electric service customers of Commonwealth Edison
Company, an Illinois electric utility.
A-6
The Funding Law provides that: "The State [of Illinois] pledges to
and agrees with the holders of any transitional funding instruments who may
enter into contracts with an electric utility, grantee, assignee or issuer
pursuant to this Article XVIII [of the Public Utility Act] that the State
[of Illinois] will not in any way limit, alter, impair or reduce the value of
intangible transition property created by, or instrument funding charges
approved by, a transitional funding order so as to impair the terms of any
contract made by such electric utility, grantee, assignee or issuer with such
holders or in any way impair the rights and remedies of such holders until
the pertinent grantee instruments or, if the related transitional funding
order does not provide for the issuance of grantee instruments, the pertinent
transitional funding instruments and interest, premium and other fees, costs
and charges related thereto, as the case may be, are fully paid and
discharged. Electric utilities, grantees and issuers are authorized to
include these pledges and agreements of the State [of Illinois] in any
contract with the holders of transitional funding instruments or with any
assignees pursuant to this Article XVIII [of the Public Utility Act]and any
assignees are similarly authorized to include these pledges and agreements of
the State [of Illinois] in any contract with any issuer, holder or any other
assignee. Nothing in this Article XVIII [of the Public Utility Act]shall
preclude the State of Illinois from requiring adjustments as may otherwise be
allowed by law to the electric utility's base rates, transition charges,
delivery services charges, or other charges for tariffed services, so long as
any such adjustment does not directly affect or impair any instrument funding
charges previously authorized by a transitional funding order issued by the
[Illinois Commerce Commission]."
As a result of the foregoing pledge, the State of Illinois may not,
except as provided in the succeeding sentence, in any way limit, alter,
impair or reduce the value of such intangible transition property or such
instrument funding changes in a manner substantially impairing the Note
Indenture or the rights and remedies of the Holders, until the Notes,
together with interest thereon, are fully paid and discharged.
Notwithstanding the immediately preceding sentence, the State of Illinois
would be allowed to effect a temporary impairment of the Holders' rights if
it could be shown that such impairment was necessary to advance a significant
and legitimate public purpose.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Class [- ] Note may be registered on the
Note Register upon surrender of this Class [ - ] Note for registration of
transfer at the office or agency designated by the Note Issuer pursuant to
the Indenture, duly endorsed by, or accompanied by (a) a written instrument
of transfer in form satisfactory to the Indenture Trustee duly executed by
the Holder hereof or his attorney duly authorized in writing, with such
signature guaranteed by an institution which is a member of one of the
following recognized Signature Guaranty Programs: (i) The Securities Transfer
Agent Medallion Program (STAMP); (ii)The New York Stock Exchange Medallion
Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) in
such other guarantee program acceptable to the Indenture Trustee, and (b)
such other documents as the Indenture Trustee may require, and thereupon one
or more new Class [ - ] Notes of Minimum Denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of
transfer or exchange of this Class [ - ] Note,
A-7
but the transferor may be required to pay a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any such
registration of transfer or exchange, other than exchanges pursuant to
Section 2.04 or 9.06 of the Indenture not involving any transfer.
Each Note holder, by acceptance of a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Note Issuer or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Delaware Trustee in its
respective individual capacity, (ii) any owner of a beneficial interest in the
Note Issuer (including the Grantee and Illinois Power) or (iii) any partner,
owner, beneficiary, agent, officer or employee of the Indenture Trustee or the
Delaware Trustee in its respective capacity, any holder of a beneficial interest
in the Delaware Trustee or the Indenture Trustee or of any successor or assign
of the Indenture Trustee or the Delaware Trustee in any of their individual or
corporate capacities except as any such Person may have expressly agreed (it
being understood that none of the Indenture Trustee, the Delaware Trustee, the
Grantee and Illinois Power has any such obligations in their respective
individual or corporate capacities).
Prior to the due presentment for registration of transfer of this
Class [ - ] Note Issuer, the Indenture Trustee and any agent of the Note Issuer
or the Indenture Trustee may treat the Person in whose name this Class [ - ]
Note is registered (as of the day of determination) as the owner hereof for the
purpose of receiving payments of principal of and premium, if any, and interest
on this Class [ - ] Note and for all other purposes whatsoever, whether or not
this Class [ - ] Note be overdue, and neither the Note Issuer, the Indenture
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Note Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Note Issuer with the consent of the Holders of
Notes representing a majority of the Outstanding Amount of all Notes at the
time outstanding of each Series or Class to be affected. The Indenture also
contains provisions permitting the Holders of Notes representing specified
percentages of the Outstanding Amount of the Notes of all Series, on behalf
of the Holders of all the Notes, to waive compliance by the Note Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class [ - ] Note (or any one of more Predecessor Notes) shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class [ - ] Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of
such consent or waiver is made upon this Class [ - ] Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Note Issuer" as used in this Class [ - ] Note includes any
successor to the Note Issuer under the Indenture.
A-8
The Note Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Class [ - ] Notes are issuable only in registered form in
denominations as provided in the Indenture and the related Trust Issuance
Certificate or Series Supplement, if any, subject to certain limitations therein
set forth.
This Class [ - ] Note, the Indenture and the related Trust Issuance
Certificate or Series Supplement, if any, shall be construed in accordance with
the laws of the State of Illinois, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Class
[ - ] Note or of the Indenture shall alter or impair the obligation of the Note
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class [ - ] Note at the times, place, and rate, and in the coin
or currency-herein prescribed.
The Holder of this Class [ - ] Note by the acceptance hereof agrees
that, notwithstanding any provision of the Indenture or the related Trust
Issuance Certificate or Series Supplement, if any, to the contrary, the Holder
shall have no recourse against the Note Issuer, but shall look only to the Note
Collateral, with respect to any amounts due to the Holder under this Class [ - ]
Note.
The Note Issuer and the Indenture Trustee, by entering into this
Indenture, and the Holders and any Persons holding a beneficial interest in any
Class [ - ] Note, by acquiring any Class [ - ] Note or interest therein, (i)
express their intention that the Class [ - ] Notes qualify under applicable tax
law as indebtedness of Illinois Power secured by the Note Collateral and (ii)
unless otherwise required by appropriate taxing authorities, agree to treat the
Class [ - ] Notes as indebtedness of Illinois Power secured by the Note
Collateral for the purpose of federal income, state and local income and
franchise taxes, and any other taxes imposed upon, measured by or based upon
gross or net income.
A-9
ASSIGNMENT(2)
Social Security or taxpayer I.D. or other identifying number of assignee
________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto __________________________________________________________
(name and address of assignee)
the within Class [ - ] Note and all rights thereunder, and hereby irrevocably
constitutes and appoints______________, attorney, to transfer said Class [ - ]
Note on the books kept for registration thereof; with full power of
substitution in the premises.
Dated:
----------------------------- ------------------------------------
Signature Guaranteed:
----------------------------- ------------------------------------
-------------------------
(2) NOTE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within Class
[ - ] Note in every particular, without alteration, enlargement or any change
whatsoever.
A-10
EXHIBIT B
Trust Issuance Certificate dated as of __________, ____ (this
"Certificate"), executed and delivered by Illinois Power Special
Purpose Trust, a business trust created under the laws of the State of
Delaware (the "Note Issuer"), to Xxxxxx Trust and Savings Bank, a
banking corporation organized under the laws of the State of Illinois
(the "Indenture Trustee"), as Indenture Trustee under the Indenture
dated as of December 1, 1998, between the Note Issuer and the
Indenture Trustee (the "Indenture").
PRELIMINARY STATEMENT
Article II of the Indenture provides, among other things, that the
Note Issuer may at any time and from time to time execute and deliver to the
Indenture Trustee one or more Trust Issuance Certificates for the purposes of
authorizing the issuance by the Note Issuer of a Series of Notes and specifying
the terms thereof. The Note Issuer has duly authorized the creation of a Series
of Notes with an initial aggregate principal amount of $ [___________] to be
known as Illinois Power Transitional Funding Notes, Series [ ] (the "Series
[ ] Notes"), and the Note Issuer is executing and delivering this Certificate
in order to provide for the Series [ ] Notes.
All terms used in this Certificate that are defined in the Indenture,
either directly or by reference therein, have the meanings assigned to them
therein, except to the extent such terms are defined or modified in this
Certificate or the context clearly requires otherwise. In the event that any
term or provision contained herein shall conflict with or be inconsistent with
any term or provision contained in the Indenture, the terms and provisions of
this Certificate shall govern.
SECTION 1. DESIGNATION. The Series [ ] Notes shall be designated
generally as Illinois Power Transitional Funding Notes, Series [ ] and further
denominated as Classes [ ] through [ ].
SECTION 2. INITIAL PRINCIPAL AMOUNT; NOTE INTEREST RATE: SCHEDULED
MATURITY DATE; FINAL MATURITY DATE. The Notes of each Class of the Series [ ]
shall have the initial principal amount, bear interest at the rates per annum
and shall have Scheduled Maturity Dates and Final Maturity Dates set forth
below:
INITIAL NOTE
PRINCIPAL INTEREST SCHEDULED FINAL
CLASS AMOUNT RATE MATURITY DATE DATE MATURITY
----- --------- --------- ------------- --------- --------
B-1
The Note Interest Rate shall be computed on the basis of a 360-day year of
twelve 30-day months. [IF THE NOTES OF ALL OR ANY CLASSES ARE TO BE FLOATING
RATE NOTES, DESCRIBE HERE THE INDEX OR INDEXES TO BE USED TO DETERMINE THE
APPLICABLE VARIABLE INTEREST RATE.]
SECTION 3. AUTHENTICATION DATE; PAYMENT DATES; EXPECTED
AMORTIZATION SCHEDULE FOR PRINCIPAL: QUARTERLY INTEREST; REQUIRED
OVERCOLLATERALIZATION LEVEL; NO PREMIUM; OTHER TERMS.
(a) AUTHENTICATION DATE. The Series [ ] Notes that are
authenticated and delivered by the Indenture Trustee to or upon the order of the
Note Issuer on [ ] (the "Series Issuance Date") shall have as their date of
authentication [____________].
(b) PAYMENT DATES. The Payment Dates for the Series [ ] Notes are
March 25, June 25, September 25 and December 25 of each year or, if any such
date is not a Business Day, the next succeeding Business Day, commencing on [ ]
and continuing until the earlier of repayment of the Series [ ] Notes in full
and the Final Maturity Date for the Series [ ] Notes.
(c) EXPECTED AMORTIZATION SCHEDULE FOR PRINCIPAL. Unless an Event of
Default shall have occurred and be continuing on each Payment Date, the
Indenture Trustee shall distribute to the Holders of record as of the related
Record Date amounts payable pursuant to Section 8.02(d)(vii) of the Indenture as
principal, in the following order and priority: [(1) to the holders of the Class
A-1 Notes, until the Outstanding Amount of such Class of Notes thereof has been
reduced to zero; (2) to the holders of the Class A-2 Notes, until the
Outstanding Amount of such Class of Notes thereof has been reduced to zero; (3)
to the holders of the Class A-3 Notes, until the Outstanding Amount of such
Class of Notes thereof has been reduced to zero; (4) to the holders of the Class
A-4 Notes, until the Outstanding Amount of such Class of Notes thereof has been
reduced to zero; (5) to the holders of the Class A-S Notes until the Outstanding
Amount of such Class of Notes thereof has been reduced to zero; (6) to the
holders of the Class A-6 Notes, until the Outstanding Amount of such Class of
Notes thereof has been reduced to zero; (7) to the holders of the Class A-7
Notes until the Outstanding Amount of such Class of Notes thereof has been
reduced to zero; and (8) to the holders of the Class A-8 Notes, until the
Outstanding Amount of such Class of Notes thereof has been reduced to zero;]
PROVIDED, HOWEVER, that in no event shall a principal payment pursuant to this
Section 3(c) on any Class on a Payment Date be greater than the amount necessary
to reduce the Outstanding Amount of such Class of Notes below the amount
specified in the Expected Amortization Schedule which is attached as Schedule A
hereto for such Class and Payment Date.
(d) QUARTERLY INTEREST. Quarterly Interest will be payable on each
Class of the Series [ ]Notes on each Payment Date in an equal amount to
[one-fourth] of the product of (i) the applicable Note Interest Rate and (ii)
the Outstanding Amount of the related Class of Notes as of the close of
business on the preceding Payment Date after giving effect to all payments of
B-2
principal made to the holders of the related Class of Series [ ] Notes on
such preceding Payment Date; PROVIDED, HOWEVER, that with respect to the
initial Payment Date, or, if no payment has yet been made, interest on the
outstanding principal balance will accrue from and including the Series
Issuance Date to, but excluding, the following Payment Date.
(e) REQUIRED OVERCOLLATERALIZATION LEVEL. The Required
Overcollateralization Level for any Payment Date shall be as set forth in
Schedule B hereto.
[(f) NO PREMIUM, NO PREMIUM WILL BE PAYABLE IN CONNECTION WITH ANY
OPTIONAL REDEMPTION OF THE SERIES [ ] NOTES.]
[(g) THE SERIES [ ] NOTES SHALL NOT BE BOOK-ENTRY NOTES AND THE
APPLICABLE PROVISIONS OF SECTION 2.11 OF THE INDENTURE SHALL NOT APPLY TO SUCH
NOTES.]
SECTION 4. MINIMUM DENOMINATIONS. The Series 199 [ ] - [ ] Notes
shall be issuable in the Minimum Denomination and integral multiples thereof.
SECTION 5. CERTAIN DEFINED TERMS. Article One of the Indenture
provides that the meanings of certain defined terms used in the Indenture shall,
when applied to the Notes of a particular Series, be as defined in Appendix A to
the Indenture. Additionally, Article Two of the Indenture provides that with
respect to a particular Series of Notes, certain terms will have the meanings
specified in the related Certificate. With respect to the Series [ ] Notes, the
following definitions shall apply:
"MINIMUM DENOMINATION" shall mean $1,000.
"NOTE INTEREST RATE" has the meaning set forth in Section 2 of this
Certificate.
"PAYMENT DATE" has the meaning set forth in Section 3(b) of this
Certificate.
"QUARTERLY INTEREST" has the meaning set forth in Section 3(d) of this
Certificate.
"SERIES ISSUANCE DATE" has the meaning set forth in Section 3(a) of
this Certificate.
SECTION 6. DELIVERY AND PAYMENT FOR THE SERIES [ ] NOTES; FORM OF
THE SERIES [ ] NOTES. The Indenture Trustee shall deliver the Series [ ]
Notes to or upon order of the Note Issuer when authenticated in accordance with
Section 2.03 of the Indenture. The Series [ ] Notes of each Class shall be in
the form of Exhibits [A-1 through A-__] hereto.
SECTION 7. RATIFICATION OF AGREEMENT. As supplemented by this
Certificate, the Indenture is in all respects ratified and confirmed and the
Indenture, as so supplemented by this Certificate, shall be read, taken, and
construed as one and the same instrument.
B-3
SECTION 8. COUNTERPARTS. This Certificate may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
SECTION 9. GOVERNING LAW. This Certificate shall be construed in
accordance with the laws of the State of Illinois, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 10. TRUST OBLIGATION. No recourse may be taken directly or
indirectly, with respect to the obligations of the Note Issuer or the Indenture
Trustee on the Notes or under this Certificate or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Indenture
Trustee or the Delaware Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Note Issuer (including the Grantee or Illinois Power)
or (iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Delaware Trustee in its individual
capacity, any holder of a beneficial interest in the Note Issuer or the
Indenture Trustee or of any successor or assign of any of them in their
respective individual or corporate capacities, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee, the
Delaware Trustee, the Grantee and Illinois Power have any such obligations in
their respective individual or corporate capacities).
IN WITNESS WHEREOF, the Note Issuer has caused this Certificate to be
duly executed by a Responsible Officer thereunto duly authorized as of the first
day of the month and year first above written.
ILLINOIS POWER SPECIAL PURPOSE
TRUST, as Note Issuer,
By: FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Delaware
Trustee
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
B-4
RECEIVED, this ___ day of ____________.
XXXXXX TRUST AND SAVINGS BANK,
not in its individual capacity but solely as
Indenture Trustee
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
B-5
SCHEDULE A
EXPECTED AMORTIZATION SCHEDULE
OUTSTANDING PRINCIPAL BALANCE
DATE CLASS CLASS CLASS CLASS CLASS
---- ----- ----- ----- ----- -----
Series Issuance $ $ $ $ $
DATE
----
, 199
, 199
, 199
, 199
[Etc.]
SCHEDULE B
REQUIRED OVERCOLLATERALIZATION LEVEL SCHEDULE
REQUIRED
PAYMENT DATE OVERCOLLATERALIZATION LEVEL
------------ ---------------------------
_____________, 199 $
_____________, 199 $
_____________, 199 $
[Etc.] $
EXHIBIT C
SERIES SUPPLEMENT dated as of __________, 199_ (this "Supplement"), by
and between ILLINOIS POWER SPECIAL PURPOSE TRUST, a business trust
created under the laws of the State of Delaware (the "Note Issuer"),
and, Xxxxxx Trust and Savings Bank, a banking corporation organized
under the laws of the State of Illinois (the "Indenture Trustee"), as
Indenture Trustee under the Indenture dated as of [_______________],
1998, between the Note Issuer and the Indenture Trustee (the
"Indenture").
PRELIMINARY STATEMENT
Section 9.01 of the Indenture provides, among other things, that
the Note Issuer and the Indenture Trustee may at any time and from time to
time enter into one or more indenture supplemental to the Indenture for the
purposes of authorizing the issuance by the Note Issuer of a Series of Notes
and specifying the terms thereof. The Note Issuer has duly authorized the
creation of a Series of Notes with an initial aggregate principal amount of
$ [___________] to be known as Illinois Power Transitional Funding Trust Notes,
Series [ ] (the "Series [ ] Notes"), and the Note Issuer and the Indenture
Trustee are executing an delivering this Supplement in order to provide for
the Series [ ] Notes.
All terms used in this Supplement that are defined in the
Indenture, either directly or by reference therein, have the meanings
assigned to them therein, except to the extent such terms are defined or
modified in this Supplement or the context clearly requires otherwise. In the
event that any term or provision contained in the Indenture, the terms and
provisions of this Supplement shall govern.
SECTION 1. DESIGNATION. The Series [ ] Notes shall be
designated generally as Illinois Power Transitional Funding Notes, Series [ ]
and further denominated as Classes [ ] through [ ].
SECTION 2. INITIAL PRINCIPAL AMOUNT; NOTE INTEREST RATE:
SCHEDULED MATURITY DATE; FINAL MATURITY DATE. The Notes of each Class of the
Series [ ] shall have the initial principal amount, bear interest at the rates
per annum and shall have Scheduled Maturity Dates and Final Maturity Dates
set forth below:
INITIAL NOTE FINAL
PRINCIPAL INTEREST SCHEDULED MATURITY
CLASS AMOUNT RATE MATURITY DATE DATE
----- --------- -------- --------- ---- --------
C-1
The Note Interest Rate shall be computed on the basis of a 360-day year of
twelve 30-day months. [IF THE NOTES OF ALL OR ANY CLASSES ARE TO BE FLOATING
RATE NOTES, DESCRIBE HERE THE INDEX OR INDEXES TO BE USED TO DETERMINE THE
APPLICABLE VARIABLE INTEREST RATE.]
SECTION 3. AUTHENTICATION DATE; PAYMENT DATES; EXPECTED
AMORTIZATION SCHEDULE FOR PRINCIPAL: QUARTERLY INTEREST; REQUIRED
OVERCOLLATERALIZATION LEVEL; NO PREMIUM.
(a) AUTHENTICATION DATE. The Series [ ] Notes that are
authenticated and delivered by the Indenture Trustee to or upon the order of
the Note Issuer on [ ] (the "Series Issuance Date") shall have as their date
of authentication [____________].
(b) PAYMENT DATES. The Payment Dates for the Series [ ] Notes are
[March 15, June 15, September 15 and December 15] of each year or, if any
such date is not a Business Day, the next succeeding Business Day, commencing
on [ ] and continuing until the earlier of repayment of the Series [ ] Notes
in full and the Final Maturity Date for the Series [ ] Notes.
(c) EXPECTED AMORTIZATION SCHEDULE FOR PRINCIPAL. Unless an Event of
Default shall have occurred and be continuing on each Payment Date, the
Indenture Trustee shall distribute to the Holders of record as of the related
Record Date amounts payable pursuant to Section 8.02(d)(vii) of the Indenture as
principal, in the following order and priority: [(1) to the holders of the Class
A-1 Notes, until the Outstanding Amount of such Class of Notes thereof has been
reduced to zero; (2) to the holders of the Class A-2 Notes, until the
Outstanding Amount of such Class of Notes thereof has been reduced to zero; (3)
to the holders of the Class A-3 Notes, until the Outstanding Amount of such
Class of Notes thereof has been reduced to zero; (4) to the holders of the Class
A-4 Notes, until the Outstanding Amount of such Class of Notes thereof has been
reduced to zero; (5) to the holders of the Class A-5 Notes until the Outstanding
Amount of such Class of Notes thereof has been reduced to zero; (6) to the
holders of the Class A-6 Notes, until the Outstanding Amount of such Class of
Notes thereof has been reduced to zero; (7) to the holders of the Class A-7
Notes until the Outstanding Amount of such Class of Notes thereof has been
reduced to zero; and (8) to the holders of the Class A-8 Notes, until the
Outstanding Amount of such Class of Notes thereof has been reduced to zero;]
PROVIDED, HOWEVER, that in no event shall a principal payment pursuant to this
Section 3(c) on any Class on a Payment Date be greater than the amount necessary
to reduce the Outstanding Amount of such Class of Notes below the amount
specified in the Expected Amortization Schedule which is attached as Schedule A
hereto for such Class and Payment Date.
(d) QUARTERLY INTEREST. [Quarterly] Interest will be payable on each
Class of the Series [ ] Notes on each Payment Date in an equal amount to
[one-fourth] of the product of (i) the applicable Note Interest Rate and (ii)
the Outstanding Amount of the related Class of Notes as of the close of business
on the preceding Payment Date after giving effect to all payments of
C-2
principal made to the holders of the related Class of Series [ ] Notes on
such preceding Payment Date; PROVIDED, HOWEVER, that with respect to the
initial Payment Date, or, if no payment has yet been made, interest on the
outstanding principal balance will accrue from and including the Series
Issuance Date to, but excluding, the following Payment Date.
(e) REQUIRED OVERCOLLATERALIZATION LEVEL. The Required
Overcollateralization Level for any Payment Date shall be as set forth in
Schedule B hereto.
[(f) NO PREMIUM, NO PREMIUM WILL BE PAYABLE IN CONNECTION WITH ANY
OPTIONAL REDEMPTION OF THE SERIES [ ] NOTES.]
[(g) THE SERIES [ ] NOTES SHALL NOT BE BOOK-ENTRY NOTES AND THE
APPLICABLE PROVISIONS OF SECTION 2.11 OF THE INDENTURE SHALL NOT APPLY TO SUCH
NOTES.]
SECTION 4. MINIMUM DENOMINATIONS. The Series 199[ ] - [ ] Notes
shall be issuable in the Minimum Denomination and integral multiples thereof.
SECTION 5. CERTAIN DEFINED TERMS. Article One of the Indenture
provides that the meanings of certain defined terms used in the Indenture
shall, when applied to the Notes of a particular Series, be as defined in
Appendix A to the Indenture. Additionally, Article Two of the Indenture
provides that with respect to a particular Series of Notes, certain terms
will have the meanings specified in the related Supplement. With respect to
the Series [ ] Notes, the following definitions shall apply:
"MINIMUM DENOMINATION" shall mean $1,000.
"NOTE INTEREST RATE" has the meaning set forth in Section 2 of this
Supplement.
"PAYMENT DATE" has the meaning set forth in Section 3(b) of this
Supplement.
"QUARTERLY INTEREST" has the meaning set forth in Section 3(d) of
this Supplement.
"SERIES ISSUANCE DATE" has the meaning set forth in Section 3(a) of
this Supplement.
SECTION 6. DELIVERY AND PAYMENT FOR THE SERIES [ ] NOTES; FORM OF
THE SERIES [ ] NOTES. The Indenture Trustee shall deliver the Series [ ]
Notes to or upon order of the Note Issuer when authenticated in accordance with
Section 2.03 of the Indenture. The Series [ ] Notes of each Class shall be in
the form of Exhibits [A-1 through A-__] hereto.
SECTION 7. RATIFICATION OF AGREEMENT. As supplemented by this
Certificate, the Indenture is in all respects ratified and confirmed and the
Indenture, as so supplemented by this Supplement, shall be read, taken, and
construed as one and the same instrument.
C-3
SECTION 8. COUNTERPARTS. This Certificate may be executed in
any number of counterparts, each of which so executed shall be deemed to be
an original, but all of such counterparts shall together constitute but one
and the same instrument.
SECTION 9. GOVERNING LAW. This Certificate shall be construed
in accordance with the laws of the State of Illinois, without reference to
its conflict of law provisions, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
SECTION 10. TRUST OBLIGATION. No recourse may be taken directly
or indirectly, with respect to the obligations of the Note Issuer or the
Indenture Trustee on the Notes or under this Certificate or any certificate
or other writing delivered in connection herewith or therewith, against (i)
the Indenture Trustee or the Delaware Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Note Issuer (including the
Grantee or Illinois Power) or (iii) any partner, owner, beneficiary, agent,
officer, director, employee or agent of the Indenture Trustee or the Delaware
Trustee in its individual capacity, any holder of a beneficial interest in
the Note Issuer or the Indenture Trustee or of any successor or assign of any
of them in their respective individual or corporate capacities, except as any
such Person may have expressly agreed (it being understood that the Indenture
Trustee, the Delaware Trustee, the Grantee and Illinois Power have any such
obligations in their respective individual or corporate capacities).
IN WITNESS WHEREOF, the Note Issuer and the Indenture Trustee have
caused this Supplement to be duly executed by their respective officers
thereunto duly authorized as of the first day of the month and year first
above written.
ILLINOIS POWER SPECIAL PURPOSE
TRUST, as Note Issuer
By: FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Delaware
Trustee
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
XXXXXX TRUST AND SAVINGS BANK, not in
its individual capacity but solely as Indenture
Trustee
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
C-4
SCHEDULE A
EXPECTED AMORTIZATION SCHEDULE
OUTSTANDING PRINCIPAL BALANCE
DATE CLASS CLASS CLASS CLASS CLASS
---- ----- ----- ----- ----- -----
Series Issuance $ $ $ $ $
DATE
----
, 199
, 199
, 199
, 199
[Etc.]
SCHEDULE B
REQUIRED OVERCOLLATERALIZATION LEVEL SCHEDULE
REQUIRED
PAYMENT DATE OVERCOLLATERALIZATION LEVEL
------------ ---------------------------
_____________, 199 $
_____________, 199 $
_____________, 199 $
[Etc.] $
EXHIBIT 4.3
FORM OF APPENDIX A TO INDENTURE
APPENDIX A
DEFINITIONS
This is APPENDIX A to the Indenture.
A. DEFINED TERMS. As used in the Grant Agreement, the Sale
Agreement, the Indenture, the Trust Agreement, the Servicing Agreement, Trust
Issuance Certificate, Series Supplement or any other Basic Document as
hereinafter defined, as the case may be (unless the context requires a different
meaning), the following terms have the following meanings:
"1998 FUNDING ORDER" means the Final Transitional Funding Order dated
September 10, 1998 issued by the ICC pursuant to the Funding Law, Docket No.
98-0488.
"1998 INITIAL TARIFF" means the initial Tariff filed with the ICC to
evidence the IFCs pursuant to the 1998 Funding Order.
"1998 TRANSITION PROPERTY" means all ITP created in favor of the
Grantee pursuant to the 1998 Funding Order.
"ACT" is defined in Section 11.03 of the Indenture.
"ACTUAL IFC COLLECTIONS" means, with respect to any Collection Period,
IFC Collections actually received by the Servicer with respect to such
Collection Period.
"ADJUSTMENT" means each Adjustment to the IFCs made pursuant to the
terms of any Funding Order in accordance with Section 4.01 (b)(i) of the
Servicing Agreement.
"ADJUSTMENT DATE" means January 1 and July 1 of each year, commencing
July 1, 1999.
"ADMINISTRATION AGREEMENT" means the Administration Agreement dated as
of December __, 1998, among Illinois Power and the Grantee as the same may be
amended, supplemented or otherwise modified from time to time.
"ADMINISTRATION FEE" means those amounts invoiced by Illinois Power to
Grantee for services and facilities provided by Illinois Power, as
Administrator, to Grantee in accordance with the Administration Agreement.
1
"ADMINISTRATOR" means Illinois Power and any successor in interest to
the extent permitted under the Administration Agreement.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGENCY OFFICE" means the office of the Note Issuer maintained
pursuant to Section 3.02 of the Indenture.
"ALLOCABLE IFC REVENUE AMOUNTS" means, (i) with respect to any
lump-sum payments of transition charges under Section 16-108(h) of the Public
Utilities Act or (ii) with respect to any revenues derived from condemnation
proceedings, or FERC stranded cost recoveries or any other amounts which
reflect compensation for lost revenues which would otherwise have been
attributable to Applicable Rates, the allocable amounts of such transition
charges or other revenues which are deemed to be proceeds of the IFCs in
accordance with the terms of the Funding Order and which are to be set aside
for the benefit of the Note Issuer, in each case as calculated pursuant to
Section 6(f) of ANNEX I to the Servicing Agreement.
"AMENDATORY ACT" means Illinois Public Act 90-561, effective December
16, 1997, including without limitation, 220 ILCS 5/16-101 ET SEQ., 220 ILCS
5/17-101 ET SEQ. and 220 ILCS 5/18-101 ET SEQ., as amended from time to time.
"AMENDATORY TARIFF" means a tariff or notice filing filed with the ICC
in respect of an Adjustment substantially in the form of EXHIBIT C to the
Servicing Agreement.
"ANNUAL ACCOUNTANT'S REPORT" is defined in Section 3.04 of the
Servicing Agreement.
"APPLICABLE ARES" means, with respect to each Customer taking service
from an ARES, the ARES, if any, providing consolidated billing to that Customer
which includes billing of IFCs.
"APPLICABLE PERIOD" means the period commencing on an Adjustment Date
and ending on the day immediately preceding the next Adjustment Date.
"APPLICABLE RATES" means all of Illinois Power's tariffed charges
including, without limitation, charges for base rates, delivery services or
transition charges (including lump-sum payments for such charges) or other rates
for tariffed
2
services; PROVIDED, HOWEVER, that Applicable Rates shall not include late
charges or charges set forth in those tariffs which are filed specifically
and primarily to collect amounts related to decommissioning expense, taxes,
municipal infrastructure maintenance fees, franchise fees or other franchise
cost additions, costs imposed by local governmental units which are allocated
and charged to customers within the boundaries of such governmental units'
jurisdiction, renewable energy resources and coal technology development
assistance charges, energy assistance charges for the Supplemental Low-Income
Energy Assistance Fund, reimbursement for the costs of optional or
non-standard facilities and reimbursement for the costs of optional or
non-standard meters, or monies that will be paid to third parties (after
deduction of allowable administrative, servicing or similar fees), and
PROVIDED FURTHER that to the extent any rate reflects compensation for power
or energy supplied to customers by a person or entity other than the
Servicer, the IFC will be deducted and stated separately from such rate
without giving effect to such compensation.
"APPLICATION" means the Application for Transitional Funding Order and
Petition filed by Illinois Power with the ICC dated April 22, 1998 pursuant to
Section 18-103 of the Funding Law.
"ARES" means an alternative retail electric supplier as defined in
Section 16-102 of the Amendatory Act.
"ARES SERVICE AGREEMENT" means an agreement between an ARES and
Illinois Power for the provision of consolidated billing by such ARES to
customers in accordance with ICC Regulations, the terms of any Tariffs and
the terms of any delivery service tariffs filed by Illinois Power under
Section 16-118(b) of the Public Utilities Act.
"BANKRUPTCY CODE" means Title 11 of the United States Code (11 U.S.C.
Section 101 ET SEQ.), as amended from time to time.
"BASIC DOCUMENTS" means each Grant Agreement, each Sale Agreement, the
Indenture, the Trust Agreement, the Servicing Agreement, each Series Supplement,
each Trust Issuance Certificate, the Administration Agreement, each Letter of
Representations, the Note Depository Agreement, each Underwriting Agreement and
all other documents and certificates delivered in connection therewith.
"BENEFIT PLAN" means, with respect to any Person, any defined benefit
plan (as defined in Section 3(35) of ERISA) that (a) is or was at any time
during the past six years maintained by such Person or any ERISA Affiliate of
such person, or to which contributions by any such Person are or were at any
time during the past six years required to be made or under which such Person
has or could have any liability or (b) is subject to the provisions of Title IV
of ERISA.
3
"BILLING PERIOD" means the period created by dividing the calendar
year into twelve consecutive periods of approximately twenty-one (21) Servicer
Business Days each, and represents the period during which the Servicer
typically renders a xxxx for electric service to each of its customers.
"BILLS" means each of the regular monthly bills, summary bills,
opening bills and closing bills issued to Customers or ARES by Illinois Power on
its own behalf and in its capacity as Servicer.
"BOOK-ENTRY FORM" means, with respect to any Note or Series of Notes,
that such Note or Series is not certificated and the ownership and transfers
thereof shall be made through the book entries by a Clearing Agency as described
in Section 2.11 of the Indenture and the applicable Trust Issuance Certificate
or Series Supplement, if any, pursuant to which such Note or Series was issued.
"BOOK-ENTRY NOTES" means any Notes issued in Book-Entry Form;
PROVIDED, HOWEVER, that after the occurrence of a condition whereupon book-entry
registration and transfer are no longer permitted and Definitive Notes are to be
issued to the Holder of such Notes, such Notes shall no longer be "Book-Entry
Notes."
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in Wilmington, Delaware,
Chicago, Illinois or New York, New York or the Depository Trust Company are
authorized or required by law, regulation or executive order to remain closed.
"BUSINESS TRUST ACT" means the Delaware Business Trust Act, 12 Del.
Code Section 3801 ET SEQ.
"CAPITAL CONTRIBUTION" means the amount of cash retained by the Note
Issuer from proceeds of issuance of the Notes, as specified in the Trust
Agreement.
"CAPITAL SUBACCOUNT" is defined in Section 8.02(a) of the Indenture.
"CERTIFICATE OF COMPLIANCE" means the certificate referred to in
Section 3.03 of the Servicing Agreement and substantially in the form of EXHIBIT
B attached to the Servicing Agreement.
"CERTIFICATE OF FORMATION" means the Certificate of Formation of the
Grantee filed as of September 10, 1998 pursuant to, and in accordance with, the
Delaware Limited Liability Company Act, 6 Del. Code Section 18-101 ET SEQ.
"CERTIFICATE OF TRUST" means the Certificate of Trust filed with the
Secretary of State of the State of Delaware pursuant to which the Trust was
established, substantially in the form of EXHIBIT A to the Trust Agreement.
4
"CLAIM" means a "claim" as defined in Section 101(5) of the Bankruptcy
Code.
"CLASS" means, with respect to any Series of Notes, any one of the
classes of Notes of that Series.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act, as amended.
"CLEARING AGENCY PARTICIPANT" means a securities broker, dealer, bank,
trust company, clearing corporation or other financial institution or other
Person for whom from time to time a Clearing Agency effects book entry transfers
and pledges of securities deposited with the Clearing Agency.
"CLOSING DATE" means December___, 1998.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"COLLECTION ACCOUNT" means the account established and maintained by
the Indenture Trustee in accordance with Section 8.02(a) of the Indenture and
any subaccounts contained therein.
"COLLECTION PERIOD" means any period commencing on the first Servicer
Business Day of any Billing Period and ending on the last Servicer Business Day
of such Billing Period.
"CONSOLIDATED ARES BILLING" has the meaning set forth in ANNEX I to
the Servicing Agreement.
"CORPORATE TRUST OFFICE" means with respect to the Indenture Trustee
or the Delaware Trustee, the principal office at which at any particular time
the corporate trust business of the Indenture Trustee or the Delaware Trustee,
respectively, shall be administered, which offices at the Closing Date are
located, in the case of the Indenture Trustee, at 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx, 00000, 12th Floor, Attention: Indenture Trust Administration,
and in the case of the Delaware Trustee, at First Union Trust Company, National
Association, One Xxxxxx Square, 000 Xxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Administration or at such other address as the
Indenture Trustee or Delaware Trustee may designate from time to time by notice
to the Holders and the Note Issuer, or the principal corporate trust office of
any successor Indenture Trustee or Delaware Trustee (the addresses of which the
successor Indenture Trustee or Delaware Trustee will notify the Holders and the
Note Issuer).
5
"COVENANT DEFEASANCE OPTION" is defined in Section 4.01(b) of the
Indenture.
"CUSTOMERS" means all existing and future retail customers or classes
of retail customers of Illinois Power or other persons or group of Persons
obligated from time to time to pay Illinois Power or any successor "Applicable
Rates," and all other Persons obligated to pay IFCs pursuant to the 1998 Funding
Order or any Subsequent Funding Order, as applicable, and, including, without
limitation, any Persons obligated (or who would but for the contract described
herein, be obligated) to pay Applicable Rates who enters into a contract with
Illinois Power which provides that such person will pay an amount each Billing
Period to the Grantee or its assigns (including the Note Issuer), or to Illinois
Power as Servicer, as applicable, equal to the amount of IFCs that would have
been billed if the services provided under such contract were subject to
Applicable Rates.
"DEBT SERVICE BILLING REQUIREMENT" means, for any Applicable Period,
the aggregate amount of IFCs calculated by the Servicer as necessary to be
billed during such period in order to collect the Required Debt Service on or
before the end of the Applicable Period.
"DEFAULT" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default as defined in Section 5.01 of the
Indenture.
"DEFINITIVE NOTES" means Notes issued in definitive form in accordance
with Section 2.13 of the Indenture.
"DELAWARE TRUSTEE" means the Person acting as Delaware Trustee under
the Trust Agreement.
"DTC" means the Depository Trust Company or any successor thereto.
"DUFF & XXXXXX" means Duff & Xxxxxx Credit Rating Co. or any successor
thereto.
"ELIGIBLE DEPOSIT ACCOUNT" means either (a) a segregated trust account
with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States of America or any one of the states thereof or the District
of Columbia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as any
of the securities of such depository institution shall have a credit rating from
each Rating Agency in one of its generic rating categories which signifies
investment grade.
6
"ELIGIBLE INSTITUTION" means (a) the corporate trust department of
the Indenture Trustee; PROVIDED that an account with the Indenture Trustee
will only be an Eligible Deposit Account if it is a segregated trust account
or (b) a depository institution organized under the laws of the United States
of America or any State (or any domestic branch of a foreign bank), which (i)
has either (A) a long-term unsecured debt rating of AAA by Standard & Poor's
and A-2 by Moody's, and if rated by Fitch IBCA, AAA by Fitch IBCA and if
rated by Duff & Xxxxxx, AAA by Duff & Xxxxxx or (B) a certificate of deposit
rating of A-1+ by Standard & Poor's and P-1 by Moody's, and if rated by Fitch
IBCA, F1+ by Fitch IBCA and if rated by Duff & Xxxxxx, D-1+ by Duff & Xxxxxx,
or any other long-term, short-term or certificate of deposit rating
acceptable to the Rating Agencies and (ii) whose deposits are insured by the
FDIC. If so qualified under clause (b) above, the Indenture Trustee may be
considered an Eligible Institution for the purposes of clause (a) of this
definition.
"ELIGIBLE INVESTMENTS" mean instruments or investment property which
evidence:
(a) direct obligations of, and obligations fully and
unconditionally guaranteed as to timely payment by, the United
States of America;
(b) demand deposits, time deposits, certificates of deposit or
bankers' acceptances of depository institutions meeting the
requirements of clause (b) of the definition of Eligible
Institution;
(c) commercial paper (other than commercial paper of Illinois
Power or any of its Affiliates) having, at the time of the
investment or contractual commitment to invest therein, a rating
from each of the Rating Agencies from which a rating is available
in the highest investment category granted thereby;
(d) investments in money market funds having a rating from
each of the Rating Agencies from which a rating is available in
the highest investment category granted thereby (including funds
for which the Indenture Trustee or the Delaware Trustee or any of
their Affiliates is investment manager or advisor);
(e) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United
States of America or any agency or instrumentality thereof the
obligations of which are backed by the full faith and credit of
the United States of America, in either case entered into with
depository institutions or trust companies meeting the
requirements of clause (b) of the definition of Eligible
Institutions; and
7
(f) any other investment permitted by each of the Rating
Agencies;
in each case maturing not later than the Business Day immediately preceding the
next Payment Date. Notwithstanding the foregoing, (x) Eligible Investments in
the Collection Account may mature not later than the Business Day immediately
preceding the next Payment Date, and (y) subject to the conditions and
limitations set forth in Section 8.03 of the Indenture, funds in the Collection
Account may be invested in securities that will not mature prior to each Payment
Date; PROVIDED, HOWEVER, that any securities or investments which mature in 32
days or more shall not be an "Eligible Investment" unless the issuer thereof has
a long-term unsecured debt rating of at least A1 from Moody's and A+ from S&P.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EVENT OF DEFAULT" is defined in Section 5.01 of the Indenture.
"EXPECTED AMORTIZATION SCHEDULE" means SCHEDULE 4.01(a) to the
Servicing Agreement, as the same may be amended from time to time.
"EXPECTED FINAL PAYMENT DATE" means, with respect to any Series or
Class of Notes, the Expected Maturity Date thereof.
"EXPECTED MATURITY DATE" means, with respect to any Series or Class of
Notes, the Expected Maturity Date therefor, as specified in the related Trust
Issuance Certificate or Series Supplement, if any.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FERC" means the Federal Energy Regulatory Commission or any successor
thereto.
"FINAL" means, with respect to any Funding Order, that such Funding
Order has become final and that the time for filing an appeal therefrom has
expired.
"FINAL MATURITY DATE" means, with respect to any Series or Class of
Notes, the Final Maturity Date therefor, as specified in the related Trust
Issuance Certificate or Series Supplement, if any.
"FITCH IBCA" means Fitch IBCA, Inc. or any successor thereto.
8
"FLOATING RATE NOTES" means any Series or Class of Notes that accrue
interest at a variable rate based on the index described in the related Trust
Issuance Certificate or Series Supplement, if any.
"FUNDING LAW" means the Electric Utility Transitional Funding Law of
1997, 220 ILCS 5/18-101 ET SEQ.
"FUNDING ORDER" means, as the context may require, (i) the 1998
Funding Order and/or (ii) any Subsequent Funding Order.
"GENERAL SUBACCOUNT" is defined in Section 8.02(a) of the Indenture.
"GLOBAL NOTE" means a Note evidencing all or any part of a Series of
Notes to be issued to the Holders thereof in Book-Entry Form, which Global Note
shall be issued to the Clearing Agency, or its nominee, for such Series, in
accordance with Section 2.11 of the Indenture and the applicable Trust Issuance
Certificate or Series Supplement, if any, pursuant to which the Note is issued.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative function of
government.
"GRANT" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, grant, transfer, create, and xxxxx x xxxx upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to the Indenture. A Grant of the Note Collateral or of any other
agreement or instrument included therein shall include all rights, powers and
options (but none of the obligations) of the Granting party thereunder,
including the immediate and continuing right to claim for, collect, receive and
give receipt for payments in respect of the Note Collateral and all other moneys
payable thereunder, to give and receive notices and other communications, to
make waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"GRANT AGREEMENT" means that certain Agreement Relating to Grant of
Intangible Transition Property dated as of December __, 1998 between Illinois
Power and the Grantee, as the same may be amended, supplemented or otherwise
modified from time to time.
"GRANTEE" means Illinois Power Securitization Limited Liability
Company, a Delaware limited liability company, and any successor in interest to
the extent permitted under the Sale Agreement and the other Basic Documents.
9
"HOLDER" means the Person in whose name a Note is registered on the
Note Register.
"ICC" means the Illinois Commerce Commission, or any successor
thereto.
"ICC REGULATIONS" means the regulations, including proposed, emergency
or temporary regulations, promulgated under the Public Utilities Act.
"IFC" means the instrument funding charge as defined in Section 18-102
of the Funding Law (expressed in cents per kilowatt-hour) and as authorized by a
Funding Order, including, without limitation, each "IFC" or equivalent amount
which Customers agree to pay pursuant to any contract under which Illinois Power
agrees to provide non-tariffed electrical service and which are deemed to be
proceeds of the Intangible Transition Property in accordance with the terms of
the applicable Funding Order.
"IFC COLLECTIONS" means IFCs received by the Servicer which are
remitted to the Collection Account.
"IFC CUSTOMER CLASS" has the meaning set forth in Annex I of the
Servicing Agreement.
"IFC PAYMENTS" means the payments made by Customers based on the IFCs.
"INDENTURE" means the Indenture dated as of December __, 1998 between
the Note Issuer and the Indenture Trustee as originally executed and, as from
time to time supplemented or amended by one or more Trust Issuance Certificates
or indentures supplemental thereto entered into pursuant to the applicable
provisions of the Indenture, as so supplemented or amended, or both, and shall
include the forms and terms of the Notes established thereunder.
"INDENTURE TRUSTEE" means Xxxxxx Trust and Savings Bank, an Illinois
banking corporation, as Indenture Trustee under the Indenture, or any successor
Indenture Trustee under the Indenture.
"INDEPENDENT" means, when used with respect to any specified Person,
that the Person (a) is in fact independent of the Note Issuer, any other obligor
on the Notes, the Grantee, the Servicer and any Affiliate of any of the
foregoing Persons, (b) does not have any direct financial interest or any
material indirect financial interest in the Note Issuer, any such other obligor,
the Grantee, the Servicer or any Affiliate of any of the foregoing Persons and
(c) is not connected with the Note Issuer, any such other obligor, the Grantee,
the Servicer or any Affiliate of any of the foregoing Persons as an officer,
10
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
"INDEPENDENT CERTIFICATE" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and consented to by the Indenture Trustee, and such opinion or
certificate shall state that the signer has read the definition of "Independent"
in the Indenture and that the signer is Independent within the meaning thereof.
"INDIRECT PARTICIPANT" means a securities broker, dealer, bank, trust
company or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant, either directly or indirectly.
"INSOLVENCY EVENT" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or (b)
the commencement by such Person of a voluntary case under any applicable Federal
or state bankruptcy, insolvency or other similar law now or hereafter in effect,
or the consent by such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
"INSOLVENCY LAW" means any applicable Federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect.
"INTANGIBLE TRANSITION PROPERTY" or "ITP" means all intangible
transition property as defined in Section 18-102 of the Funding Law created in
favor of the Grantee pursuant to a Funding Order and assigned to the Note Issuer
pursuant to a Sale Agreement, including the 1998 Transition Property and any
Subsequent Transition Property, and, including, without limitation, all
Allocable IFC Revenue Amounts.
"INVESTMENT EARNINGS" means investment earnings on funds deposited in
the Collection Account net of losses and investment expenses.
11
"ISSUER ORDER" and "ISSUER REQUEST" mean a written order or request
signed in the name of the Note Issuer by any one of its Responsible Officers and
delivered to the Indenture Trustee or Paying Agent, as applicable.
"LEGAL DEFEASANCE OPTION" is defined in Section 4.01(b) of the
Indenture.
"LETTER OF REPRESENTATIONS" means any applicable agreement among the
Note Issuer, the Indenture Trustee, the Administrator and the applicable
Clearing Agency, with respect to such Clearing Agency's rights and obligations
(in its capacity as a Clearing Agency) with respect to any Book-Entry Notes, as
the same may be amended, supplemented, restated or otherwise modified from time
to time.
"LIEN" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' liens and any liens
that attach by operation of law.
"MINIMUM DENOMINATION" means, with respect to any Note, the minimum
denomination therefor specified in the applicable Trust Issuance Certificate or
Series Supplement, if any, which minimum denomination shall be not less than
$[1,000] and, except as otherwise provided in such Trust Issuance Certificate or
Series Supplement, if any, integral multiples thereof.
"MONTHLY REMITTANCE DATE" means the tenth day of each calendar month
or, if such day is not a Business Day, the next succeeding Business Day.
"MONTHLY SERVICER'S CERTIFICATE" means a certificate, substantially in
the form of EXHIBIT A to the Servicing Agreement, completed and executed by a
Responsible Officer of the Servicer pursuant to Section 3.01(b)(i) of the
Servicing Agreement.
"MOODY'S" means Xxxxx'x Investors Service Inc. or any successor
thereto.
"NOTE COLLATERAL" has the meaning specified in the Granting Clause of
the Indenture.
"NOTE DEPOSITORY" means the depositary from time to time selected by
the Indenture Trustee on behalf of the Note Issuer in whose name the Notes are
registered prior to the issuance of Definitive Notes. The initial Note
Depository shall be Cede & Co., the nominee of the initial Clearing Agency.
"NOTE DEPOSITORY AGREEMENT" means the agreement, dated as of the
Closing Date, among the Note Issuer, the Indenture Trustee and the DTC, as the
initial Clearing Agency relating to the Notes, as the same may be amended,
supplemented or otherwise modified from time to time.
12
"NOTE INTEREST RATE" means, with respect to any Series or Class of
Notes, the rate at which interest accrues on the Notes of such Series or Class,
as specified in the related Trust Issuance Certificate or Series Supplement, if
any.
"NOTE ISSUER" means Illinois Power Special Purpose Trust, a Delaware
business trust named as such in the Indenture until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the Notes.
"NOTE OWNER" means with respect to a Book-Entry Note, the Person who
is the beneficial owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
Indirect Participant, in each case in accordance with the rules of such Clearing
Agency).
"NOTE REGISTER" means the register maintained pursuant to Section 2.05
of the Indenture, providing for the registration of the Notes and transfers and
exchanges thereof.
"NOTE REGISTRAR" means the registrar at any time of the Note Register,
appointed pursuant to Section 2.05 of the Indenture.
"NOTES" means one or more Series of Notes authorized by the 1998
Funding Order and any Subsequent Funding Order and issued under the Indenture.
"OFFICER'S CERTIFICATE" means a certificate signed by a Responsible
Officer of the Note Issuer under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01 of the Indenture,
and delivered to the Indenture Trustee. Unless otherwise specified, any
reference in the Indenture to an Officer's Certificate shall be to an Officer's
Certificate of any Responsible Officer of the party delivering such certificate.
"OPERATING AGREEMENT" means the Amended and Restated Limited Liability
Company Agreement of the Grantee dated as of December 2, 1998 executed by
Illinois Power as sole member of the Grantee.
"OPERATING EXPENSES" means all fees, costs and expenses of the Note
Issuer, including all amounts owed by the Note Issuer to the Indenture Trustee
and the Delaware Trustee, the Servicing Fee, the Administration Fee, any fees,
costs and expenses payable or reimbursable by the Note Issuer to the
Administrator and legal and accounting fees, costs and expenses of the Note
Issuer and the Grantee.
"OPINION OF COUNSEL" means one or more written opinions of counsel who
may, except as otherwise expressly provided in the Basic Documents, be employees
of or
13
counsel to the party providing such opinion of counsel, which counsel shall
be acceptable to the party receiving such opinion of counsel, and shall be in
form and substance acceptable to such party.
"OPTIONAL REDEMPTION DATE" means, with respect to any Series of Notes,
the Payment Date specified for the redemption of the Notes of such Series
pursuant to Section 10.01 of the Indenture.
"OPTIONAL REDEMPTION PRICE" is defined in Section 10.01 of the
Indenture.
"OUTSTANDING" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(a) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes
(PROVIDED, HOWEVER, that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor, satisfactory to the Indenture Trustee, made); and
(c) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes
are held by a bona fide purchaser;
PROVIDED that in determining whether the Holders of the requisite Outstanding
Amount of the Notes or any Series or Class thereof have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or under
any Basic Document, Notes owned by the Note Issuer, any other obligor upon the
Notes, the Grantee or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
that the Indenture Trustee actually knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Note Issuer, any other obligor upon the Notes, the
Grantee or any Affiliate of any of the foregoing Persons.
"OUTSTANDING AMOUNT" means the aggregate principal amount of all Notes
or, if the context requires, all Notes of a Series or Class, Outstanding at the
date of determination.
14
"OVERCOLLATERALIZATION SUBACCOUNT" is defined in Section 8.02(a) of
the Indenture.
"PAYING AGENT" means with respect to the Indenture, the Indenture
Trustee or any other Person that meets the eligibility standards for the
Indenture Trustee specified in Section 6.11 of the Indenture and is authorized
by the Note Issuer to direct the Servicer to make the payments to and
distributions from the Collection Account, including payment of principal of or
interest on the Notes on behalf of the Note Issuer.
"PAYMENT DATE" means, with respect to any Series or Class of Notes,
March 25, June 25, September 25 and December 25 of each year, PROVIDED that if
any such date is not a Business Day, the Payment Date shall be the Business Day
immediately succeeding such date, commencing _________ 25, 1999.
"PERSON" means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"PREDECESSOR NOTE" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note, and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.06 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"PRINCIPAL BALANCE" means, as of any Payment Date, the sum of the
outstanding principal amount of each Series of Notes.
"PROCEEDING" means any suit in equity, action at law or other judicial
or administrative proceeding.
"PROJECTED PRINCIPAL BALANCE" means, as of any Payment Date, the sum
of the projected outstanding principal amount of each Series of Notes for such
Payment Date set forth in the Expected Amortization Schedule.
"PUBLIC UTILITIES ACT" means the Illinois Public Utilities Act, 220
ILCS 5/1-101 ET SEQ., as the same may be amended from time to time.
"QUARTERLY INTEREST" means, with respect to any Payment Date and any
Series of Notes, the quarterly interest for such Payment Date and Series as
specified in the related Trust Issuance Certificate or Series Supplement, if
any.
15
"QUARTERLY PRINCIPAL" means, with respect to any Payment Date and any
Series of Notes, the excess, if any, of the Outstanding Amount of such Series of
Notes over the outstanding principal balance specified for such Payment Date on
the applicable Expected Amortization Schedule.
"QUARTERLY SERVICER'S CERTIFICATE" means a certificate, substantially
in the form of EXHIBIT D to the Servicing Agreement, completed and executed by a
Responsible Officer of the Servicer pursuant to Section 4.01(c)(ii) of the
Servicing Agreement.
"RATING AGENCY" means Moody's, Standard & Poor's, Duff & Xxxxxx and
Fitch IBCA. If no such organization or successor is any longer in existence,
"Rating Agency" shall be a nationally recognized statistical rating organization
or other comparable Person designated by the Note Issuer, notice of which
designation shall be given to the Indenture Trustee and the Servicer.
"RATING AGENCY CONDITION" means, with respect to any action, that each
Rating Agency shall have been given ten days prior notice thereof and that each
of the Rating Agencies shall have notified the Servicer, the Note Issuer and the
Indenture Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating by such Rating Agency of either any Series
or Class of Notes.
"RECONCILIATION PERIOD" means (i) the period commencing on the Closing
Date and ending on May 31, 1999, and (ii) thereafter, as applicable, either (A)
the period commencing on June 1 and ending November 30 or (B) the period
commencing on December 1 and ending May 31.
"RECORD DATE" means, with respect to a Payment Date or Redemption
Date, in the case of Definitive Notes, the close of business on the last day of
the calendar month preceding the calendar month in which such Payment Date or
Redemption Date occurs, and in the case of Book Entry Notes, one Business Day
prior to the applicable Payment Date or Redemption Date.
"REDEMPTION DATE" means, with respect to any Series or Class of Notes,
the Payment Date specified by the Note Issuer for the redemption of the Notes of
such Series or Class pursuant to Section 10.01 of the Indenture.
"REDEMPTION PAYMENT" means with respect to any Series or Class of
Notes, any payment of principal of and interest on the Notes of such Series or
Class due from the Note Issuer upon the early redemption of such Series or Class
of Notes, other than any such payment due by reason of the occurrence of an
Event of Default with respect to such Series or Class of Notes.
"REDEMPTION PRICE" means with respect to any Series or Class of Notes,
the unpaid principal amount of the Notes of such Series or Class redeemed, plus
accrued
16
and unpaid interest thereon at the interest rate applicable to such
Series or Class to but excluding the Redemption Date.
"REGISTERED HOLDER" means the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"REGISTRATION STATEMENT" means the registration statement, Form S-3
Registration No. 333-63537, filed with the SEC for registration under the
Securities Act relating to the offering and sale of the Notes, and including all
supplements thereto.
"RELATED ASSETS" means all of Grantee's and/or the Note Issuer's
right, title and interest in and to the Grant Agreement, the Sale Agreement, the
Servicing Agreement and all present and future claims, demands, causes and
choses in action in respect of all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind, and other forms of obligations and receivables, instruments and
other property which in any time constitute all or part of or are included in
the proceeds of any of the foregoing.
"REQUIRED CAPITAL LEVEL" means, with respect to each Series of Notes,
an amount equal to 0.50% of the initial principal amount of such Series,
deposited into the Capital Subaccount by the Grantee prior to or upon the
issuance of such Series, less $100,000 in the aggregate from all Series of
Notes.
"REQUIRED DEBT SERVICE" for any Applicable Period means the total
dollar amount of IFC Collections reasonably calculated by the Servicer in
accordance with SECTION 4.01 of the Servicing Agreement as necessary to be
received during such period (after giving effect to the allocation and
distribution of amounts on deposit in the Reserve Subaccount at the time of
calculation and which are available for payments on the Notes and including any
shortfalls in Required Debt Service for any prior Applicable Period) in order to
ensure that, as of the last Payment Date occurring in such Applicable Period,
(1) all accrued and unpaid interest on the Notes then due shall have been paid
in full, (2) the Principal Balance of the Notes is equal to the Projected
Principal Balance, (3) the balance on deposit in the Overcollateralization
Subaccount equals the aggregate Required Overcollateralization Level, (4) the
balance on deposit in the Capital Subaccount equals the aggregate Required
Capital Level and (5) all other fees and expenses due and owing and required or
allowed to be paid under SECTION 8.02 of the Note Indenture as of such date
shall have been paid in full; PROVIDED, that, with respect to any Adjustment
occurring after the last Expected Maturity Date for any Notes, the Required Debt
Service shall be calculated to ensure that sufficient IFCs will be collected to
retire such Notes in full as of
17
the earlier of (x) the Payment Date preceding the next Adjustment Date and
(y) the Final Maturity Date for such Notes.
"REQUIRED DEPOSIT RATING" means a rating on short-term unsecured debt
obligations of P-1 by Moody's, A-1+ by S&P, and, if rated by Fitch IBCA, F-1+ by
Fitch IBCA and if rated by Duff & Xxxxxx, D-1+ by Duff & Xxxxxx. Any
requirement that short-term unsecured debt obligations have the "Required
Deposit Rating" shall mean that such short-term unsecured debt obligations have
the foregoing required ratings from each of such rating agencies.
"REQUIRED OVERCOLLATERALIZATION LEVEL" means, as of any Payment Date
with respect to any Series, the amount required to be on deposit in the
Overcollateralization Subaccount as specified in the applicable Trust Issuance
Certificate or Series Supplement, if any, but not less than, as of the Scheduled
Maturity Date for such Series, 0.5% of the initial Outstanding amount thereof.
"REQUIREMENT OF LAW" means any foreign, federal, state or local laws,
statutes, regulations, rules, codes or ordinances enacted, adopted, issued or
promulgated by any Governmental Authority or common law.
"RESERVE SUBACCOUNT" is defined in Section 8.02(a) of the Indenture.
"RESPONSIBLE OFFICER" means with respect to (a) the Note Issuer, any
officer within the Corporate Trust Office of the Delaware Trustee; (b) with
respect to the Indenture Trustee, the Delaware Trustee or other trustee, any
officer within the Corporate Trust office of such trustee (including, in the
case of (a) and (b) above, the President, any Vice President, Assistant Vice
President, Secretary or Assistant Treasurer or any other officer or assistant
officer of such Person customarily performing functions similar to those
performed by any of the chosen designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred to because
of such officer's knowledge and familiarity with the particular subject); (c)
any corporation, the Chief Executive Officer, the President, any Senior Vice
President or Vice President, the Chief Financial Officer, Treasurer or any other
duly authorized officer of such Person who has been authorized to act in the
circumstances;(d) the Grantee, any Manager or duly authorized officer who has
been authorized to act in the circumstances; (e) partnership, any general
partner thereof; and (f) any other Person (other than an individual), any duly
authorized officer or member of such Person, as the context may require, who is
authorized to act in matters relating to such Person.
"SALE AGREEMENT" means as the context may require, either (i) the
Intangible Transition Property Sale Agreement dated as of December __, 1998
between the Grantee and the Note Issuer, as the same may be amended,
supplemented or otherwise modified from time to time or (ii) any Subsequent Sale
Agreement.
18
"SCHEDULED PAYMENT DATE" is defined in the applicable Trust Issuance
Certificate or Series Supplement, if any, with respect to each Series or Class
of Notes.
"SEC" means the Securities and Exchange Commission.
"SECRETARY OF STATE" means the Secretary of State of the State of
Delaware or the Secretary of State of the State of Illinois, as the case may be,
or any Governmental Authority succeeding to the duties of such offices.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SERIES" means each series of Notes issued and authenticated pursuant
to the Indenture and a related Trust Issuance Certificate or Series Supplement,
if any.
"SERIES ISSUANCE DATE" means, with respect to any Series, the date on
which the Notes of such Series are to be originally issued in accordance with
Section 2.10 of the Indenture and the related Trust Issuance Certificate or
Series Supplement, if any.
"SERIES SUPPLEMENT" means an indenture supplemental to the Indenture
that authorizes the issuance of a particular Series of Notes.
"SERVICER" means Illinois Power, as Servicer under the Servicing
Agreement, or any successor Servicer to the extent permitted under the Servicing
Agreement.
"SERVICER BUSINESS DAY" means any day other than a Saturday, Sunday or
holiday on which the Servicer maintains normal office hours and conducts
business.
"SERVICER DEFAULT" is defined in Section 7.01 of the Servicing
Agreement.
"SERVICER'S CERTIFICATE" means an Officer's Certificate of the
Servicer.
"SERVICING AGREEMENT" means the Intangible Transition Property
Servicing Agreement dated as of December __, 1998, between the Grantee and
Illinois Power assigned to the Note Issuer, as the same may be amended,
supplemented or otherwise modified from time to time.
"SERVICING FEE" means the fee payable to the Servicer on each Payment
Date for services rendered during the period from, but not including, the
preceding Payment Date to and including the current Payment Date, determined
pursuant to Section 6.06 of the Servicing Agreement.
"SOLE MEMBER" means Illinois Power as sole member of the Grantee
defined in the Operating Agreement.
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"SPECIAL PAYMENT" means with respect to any Series or Class of Notes,
any payment of principal of or interest on (including any interest accruing upon
default), or any other amount in respect of, the Notes of such Series or Class
(including, with respect to Floating Rate Notes only, a payment under any Swap)
that is not actually paid within five days of the Payment Date applicable
thereto.
"SPECIAL PAYMENT DATE" means the date on which a Special Payment is to
be made by the Indenture Trustee to the Holders.
"SPECIAL RECORD DATE" means with respect to any Special Payment Date,
the close of business on the 15th day (whether or not a Business Day) preceding
such Special Payment Date.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. or any successor thereto.
"STATE" means any one of the 50 states of the United States of America
or the District of Columbia.
"STATE PLEDGE" means the pledge of the State of Illinois as set forth
in Section 18-105(b) of the Funding Law.
"SUBSEQUENT CLOSING DATE" means any date (other than the Closing Date)
specified in a Trust Issuance Certificate or Series Supplement, if any, under
which Notes of any Series or Class are issued.
"SUBSEQUENT CREATION DATE" means any date on which Subsequent
Intangible Transition Property is created in favor of the Grantee pursuant to a
Subsequent Funding Order.
"SUBSEQUENT FUNDING ORDER" means a transitional funding order (other
than the 1998 Funding Order) issued hereafter by the ICC in favor of the Grantee
at the request of Illinois Power.
"SUBSEQUENT GRANT AGREEMENT" means an agreement substantially similar
to the Grant Agreement, relating to Subsequent Transition Property, as the same
may be amended, supplemented or otherwise modified from time to time.
"SUBSEQUENT RELATED ASSETS" means all of the Grantee's and/or the Note
Issuer's right, title and interest in and to any Subsequent Grant Agreement and
all present and future claims, demands, causes and choses in action in respect
of any or all of the foregoing and all payments on or under and all proceeds of
every kind and nature whatsoever in respect of any or all of the foregoing,
including all proceeds of the conversion, voluntary or involuntary, into cash or
other liquid property, all cash proceeds,
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accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind, and other forms of obligations and
receivables, instruments and other property which in any time constitute all
or part of or are included in the proceeds of any of the foregoing.
"SUBSEQUENT SALE AGREEMENT" means an agreement substantially similar
to the initial Sale Agreement, relating to Subsequent Intangible Transition
Property, as the same may be amended, supplemented or otherwise modified from
time to time.
"SUBSEQUENT SALE DATE" means any date on which Subsequent Intangible
Transition Property is to be sold to the Note Issuer pursuant to a Subsequent
Sale Agreement.
"SUBSEQUENT TARIFF" means a Tariff filed with the ICC in connection
with a Subsequent Funding Order.
"SUBSEQUENT TRANSITION PROPERTY" or "SUBSEQUENT ITP" means the
intangible transition property contemplated by, and specifically described in, a
Subsequent Funding Order.
"SUCCESSOR SERVICER" is defined in Section 3.07(e) of the Indenture.
"SWAP" means an interest rate swap, cap, floor, collar or other
hedging transaction that may be entered into by the Note Issuer for the purpose
of managing interest rate risk with respect to a specified Series or Class of
Floating Rate Notes that are being issued concurrently with the execution of the
Swap.
"SWAP AGREEMENT" means an Interest Rate and Currency Exchange
Agreement (including the Schedule and Confirmation thereto) entered into between
the Note Issuer and a swap provider.
"SWAP COUNTERPARTY" means the entity that is a party to a Swap with
the Note Issuer.
"SWAP PAYMENT" means the payments made by the Note Issuer to the Swap
Counterparty pursuant to any Swap, subject to any netting of payments provided
in the applicable Swap.
"SWAP REVENUES" means the payments paid by a Swap Counterparty to the
Note Issuer pursuant to any Swap, subject to any netting of payments provided in
the applicable Swap.
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"TARIFF" means any rate tariff filed with the ICC pursuant to the
Funding Law to evidence any IFCs.
"TEMPORARY NOTES" means Notes executed, and upon the receipt of an
Issuer Order, authenticated and delivered by the Indenture Trustee pending the
preparation of Definitive Notes pursuant to Section 2.04 of the Indenture.
"TREASURY REGULATIONS" means the regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"TRUST AGREEMENT" means the Declaration of Trust by First Union Trust
Company, National Association as "Delaware Trustee", and Xxxxxxx X. Xxxxxxx and
Xxxx X. Xxxxxx as "Beneficiary Trustees" dated as of December 1, 1998
acknowledged and agreed to by the Grantee, as the same may be amended,
supplemented or otherwise modified from time to time.
"TRUST ESTATE" means all right, title and interest of the Note Issuer
in, to and under the property and rights assigned to the Note Issuer pursuant to
the Sale Agreement, all funds on deposit from time to time in the Collection
Account and all other property of or interests of the Note Issuer from time to
time, including all rights, interests and claims of the Delaware Trustee and the
Note Issuer under or in connection with any Basic Documents.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force on the Closing
Date, unless otherwise specifically provided.
"TRUST ISSUANCE CERTIFICATE" means a certificate executed by an
Authorized Officer of the Delaware Trustee on behalf of the Trust in accordance
with the terms of the Sale Agreement or any Subsequent Sale Agreement and
delivered to the Indenture Trustee under Section 2.01 of the Indenture
substantially in the form attached as EXHIBIT C to the Indenture.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from time
to time.
"UNDERWRITERS" means the underwriters who purchase Notes of any Series
or Class from the Note Issuer and sell such Notes in a public offering.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated as of
December __, 1998 among Illinois Power, the Underwriters party thereto, on their
own
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behalf and as representatives of the several underwriters named therein, and
the Note Issuer.
"UNREGISTERED NOTES" means any Notes not registered under the
Securities Act or the securities laws of any other jurisdiction.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the Note Issuer's option.
B. OTHER TERMS. All accounting terms not specifically defined herein
shall be construed in accordance with United States generally accepted
accounting principles. To the extent that the definitions of accounting terms
in any Basic Document are inconsistent with the meanings of such terms under
generally accepted accounting principles or regulatory accounting principles,
the definitions contained in such Basic Document shall control. All terms used
in Article 9 of the UCC in the State of Illinois and not specifically defined
herein, are used herein as defined in such Article 9. As used in the Basic
Documents, the term "INCLUDING" means "including without limitation," and other
forms of the verb "to include" have correlative meanings. All references to any
Person shall include such Person's permitted successors.
C. COMPUTATION OF TIME PERIODS. Unless otherwise stated in any of
the Basic Documents, as the case may be, in the computation of a period of time
from a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding".
D. REFERENCE; CAPTIONS. The words "hereof", "herein" and "hereunder"
and words of similar import when used in any Transaction Document shall refer to
such Transaction Document as a whole and not to any particular provision of such
Transaction Document; and references to "SECTION", "SUBSECTION", "SCHEDULE" and
"EXHIBIT" in any Basic Document are references to Sections, subsections,
Schedules and Exhibits in or to such Transaction Document unless otherwise
specified in such Basic Document. The various captions (including the tables of
contents) in each Basic Document are provided solely for convenience of
reference and shall not affect the meaning or interpretation of any Basic
Document.
E. The definitions contained in this APPENDIX A are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter forms of such terms.
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