1
EXHIBIT 4(B)
DECLARATION OF TRUST
OF
ILLINOIS POWER FINANCING I
DECLARATION OF TRUST, dated as of October 17, 1995 (this "Declaration
of Trust"), by and among Illinois Power Company, an Illinois corporation, as
Sponsor, and Xxxxx X. Xxxxxxxxxxx, Xxxxxx X. Xxxxxxxx and Wilmington Trust
Company, a Delaware banking corporation, not in their individual capacities but
solely as trustees of the Trust, as defined below (collectively, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Illinois Power
Financing I" (the "Trust"), in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the benefit of the Sponsor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust under Chapter
38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq., as it
may be amended from time to time, or any successor legislation (the "Business
Trust Act"), and that this document constitute the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in the form attached
hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust (a) a Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including all pre-effective and post-effective amendments thereto,
relating to the registration of the Preferred Securities of the Trust under the
Securities Act of 1933, as amended, and (b) a Registration Statement on Form
8-A (the "1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
and execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on the New York Stock Exchange; (iii) to file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities of "Blue Sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute on
behalf of the Trust that certain Underwriting Agreement among the Trust, the
Sponsor and Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, as
representative of the Underwriters named in such Underwriting Agreement,
substantially in the form included
2
as an exhibit to the 1933 Act Registration Statement. In the event that any
filing referred to in clauses (i)-(iii) above is required by the rules and
regulations of the Commission, the New York Stock Exchange or state securities
or blue sky laws, to be executed on behalf of the Trust by the Trustees, Xxxxx
X. Xxxxxxxxxxx and Xxxxxx X. Xxxxxxxx, in their capacities as Trustees of the
Trust, are hereby authorized and directed to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing, it being
understood that Wilmington Trust Company, in its capacity as Trustee of the
Trust, shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange or state securities or blue sky laws.
In connection with all of the foregoing, the Sponsor and each Trustee other
than Wilmington Trust Company, solely in his capacity as Trustee of the Trust,
hereby constitutes and appoints Xxxxx X. Xxxxxxxxxxx, as his true and lawful
attorney-in-fact, and agent, with full power of substitution and
resubstitution, for the Sponsor or such Trustee or in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to the 1933 Act Registration
Statement and the 1934 Act Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Sponsor or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Declaration of Trust may be executed in one or
more counterparts.
6. The number of Trustees initially shall be three (3)
and thereafter the number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of Trustees; provided, however, that the number
of Trustees shall in no event be less than three (3); and provided, further
that to the extent required by the Business Trust Act, one Trustee shall either
be a natural person who is a resident of the State of Delaware or, if not a
natural person, an entity which has its principal place of business in the
State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustees may
resign upon thirty (30) days prior notice to the Sponsor.
7. Notwithstanding any other provision of this
Declaration of Trust, Wilmington Trust Company, in its capacity as Trustee of
the Trust, shall not be entitled to exercise any of the powers, nor shall
Wilmington Trust Company, in its capacity as Trustee of the Trust, have any
duties and responsibilities of the other Trustees described in this
Declaration of Trust. Wilmington Trust Company, in its capacity as
Trustee of the Trust, shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust Act.
8. No Trustee, any affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee or any employee or agent of the Trust
or its affiliates (each, an "Indemnified Person" and collectively, the
"Indemnified Persons"), shall be liable, responsible or accountable, in damages
or otherwise, to the Trust or any other Indemnified Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration of Trust or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions.
-2-
3
9. To the fullest extent permitted by applicable law,
the Sponsor shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by reason
of any act or omission performed or omitted by such Indemnified Person in good
faith on behalf of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Declaration of Trust, except that no Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of gross negligence or willful misconduct
with respect to such acts or omissions.
10. To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Sponsor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Sponsor of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 9.
11. Wilmington Trust Company may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust, the
Sponsor and the other Trustees shall have no rights by virtue of this
Declaration of Trust in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. Wilmington Trust Company shall not be obligated to present any
particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken
by the Trust, and Wilmington Trust Company shall have the right to take for
its own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Wilmington Trust
Company may engage or be interested in any financial or other transactions with
the Sponsor or any affiliate of the Sponsor, or may act on any committe or
body of holders of securities or other obligations of the Sponsor or its
affiliates.
12. This Declaration of Trust shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
-3-
4
IN WITNESS WHEREOF, the parities hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
ILLINOIS POWER COMPANY,
as Sponsor
By: /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------
XXXXX X. XXXXXXXXXXX,
Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
XXXXXX X. XXXXXX,
Vice President
/s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------
XXXXX X. XXXXXXXXXXX,
not in his individual capacity
but solely as Trustee
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------
XXXXXX X. XXXXXXXX,
not in his individual capacity
but solely as Trustee
