Exhibit 1.1
EXECUTION COPY
Union
Electric Company
Senior
Secured Debt Securities
Underwriting Agreement
April 1, 2008
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
As Representatives of the
several Underwriters
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies
and Gentlemen:
From
time to time, Union Electric Company, d/b/a AmerenUE, a Missouri corporation
(the “Company”), proposes to enter into one or more Pricing Agreements (each, a
“Pricing Agreement”) in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the “Underwriters”
with respect to such Pricing Agreement and the securities specified therein)
certain of its senior secured debt securities (the “Securities”) specified in
Schedule II to such Pricing Agreement (with respect to such Pricing Agreement,
the “Designated Securities”). The
Designated Securities will be secured by a series of the Company’s First
Mortgage Bonds specified in Schedule II to the applicable Pricing Agreement
(with respect to such Pricing Agreement, the “First Mortgage Bonds”), in the
same aggregate principal amount and having the same stated interest rate and
maturity date and other terms as the Designated Securities to which they
relate.
The
terms and rights of any particular issuance of Designated Securities (including
the First Mortgage Bonds securing such Designated Securities) shall be as
specified in the Pricing Agreement relating thereto and in or pursuant to the
Indenture dated as of August 15, 2002 (as it may be supplemented or
amended, the “Indenture”) between the Company and The Bank of New York, as
trustee (the “Trustee”). The First
Mortgage Bonds will be issued under and pursuant to the Company’s Indenture of
Mortgage and Deed of Trust, dated June 15, 1937, executed by the Company
to The Bank of New York, as successor trustee (the “Mortgage Trustee” and,
together with the Trustee, the “Trustees”), as heretofore amended and
supplemented by various supplemental indentures, and as to be further amended
and supplemented by a supplemental
indenture relating to the particular series
of First Mortgage Bonds specified in Schedule II to the applicable Pricing
Agreement (with respect to such Pricing Agreement, the “Supplemental Indenture”). The term “Mortgage,” as used herein, shall be
deemed to refer to such Indenture of Mortgage and Deed of Trust as so amended
and supplemented.
1. Particular sales of Designated Securities may be made
from time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in this
Agreement or the Pricing Agreement relating thereto will act as representatives
(the “Representatives”). The term “Representatives”
also refers to a single firm acting as sole representative of the Underwriters
or to an Underwriter or Underwriters who act without any firm being designated
as its or their representatives. This
Underwriting Agreement shall not be construed as an obligation of the Company
to sell any of the Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation
of the Company to issue and sell any of the Securities and the obligation of
any of the Underwriters to purchase any of the Securities shall be evidenced by
the Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall
specify the title and aggregate principal amount of such Designated Securities,
the initial public offering price of such Designated Securities, the purchase
price to the Underwriters of such Designated Securities, the series of First
Mortgage Bonds securing such Designated Securities, the Supplemental Indenture
relating to such First Mortgage Bonds, the Time of Sale (as defined herein) with
respect to such Designated Securities, the names of the Underwriters of such
Designated Securities, the names of the Representatives of such Underwriters,
if any, and the principal amount of such Designated Securities to be purchased
by each Underwriter and shall set forth the date, time and manner of delivery
of such Designated Securities and payment therefor. The Pricing Agreement shall also specify (to
the extent not set forth in or pursuant to the Indenture and the registration
statement, preliminary prospectus and prospectus with respect thereto) the
terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted.
The obligations of the Underwriters under this Underwriting Agreement
and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) The Company meets the requirements for
the use of a registration statement on Form S-3 under the Securities Act
of 1933, as amended (the “Act”), and a registration statement on Form S-3
(File Nos. 333-128517 and 333-128517-01) in respect of the Securities has been
filed with the Securities and Exchange Commission (the “Commission”); such
registration statement and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to the Representatives for each of
the other Underwriters, and, excluding exhibits to such registration statement,
but including all documents incorporated by reference in the prospectus
contained therein, have been declared effective by the Commission in such form;
if applicable, a registration statement increasing the size of the offering (a “Rule 462(b) Registration
Statement”), has been filed with the Commission pursuant to Rule 462(b) under
the Act, and such Rule 462(b) Registration Statement became effective
upon filing; and no stop order suspending the effectiveness of such
registration statement, any
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post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any,
has been issued and no proceeding for that purpose or pursuant to Section 8A
of the Act against the Company or relating to the offering of the Designated
Securities has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement before it became effective,
any preliminary prospectus included in such registration statement at the time
it became effective that omits Rule 430 Information (as defined herein) or
any preliminary prospectus supplement (together with the accompanying
prospectus) used in connection with the offering and sale of Designated
Securities that is deemed to be part of and included in such registration
statement pursuant to Rule 430B(e) under the Act, is hereinafter
called a “Preliminary Prospectus”; the various parts of such registration
statement, any pre-effective amendment thereto, any post-effective amendment
thereto and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in such registration statement at the time such part of
such registration statement became effective but excluding any Form T-1,
each as amended at the time such part of such registration statement became
effective or such part of the Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective, and including any information
omitted from such registration statement at the time such part of such
registration statement became effective but that is deemed to be part of such
registration statement pursuant to Rule 430A, Rule 430B or Rule 430C
under the Act at the time set forth therein (“Rule 430 Information”) are
hereinafter collectively called the “Registration Statement”; the prospectus and
prospectus supplement in the form first used (or made available upon request of
purchasers pursuant to Rule 173 under the Act) in connection with
confirmation of sales of the Designated Securities is hereinafter called the “Prospectus”;
any reference herein to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the effective date of the Registration Statement, the date of such
Preliminary Prospectus or the date of such Prospectus, as the case may be; any
reference to any amendment or supplement to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the effective date of the Registration
Statement or the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the rules and regulations of the Commission thereunder, and
incorporated by reference in such Registration Statement, Preliminary
Prospectus or Prospectus, as the case may be; at the time set forth in the
Pricing Agreement relating to the applicable Designated Securities (the “Time
of Sale”), the Company had prepared the following information (collectively,
the “Time of Sale Information”): a Preliminary Prospectus dated April 1,
2008, as amended or supplemented immediately prior to the Time of Sale
(including the documents incorporated therein by reference as of the Time of
Sale), as supplemented by the final term sheet prepared and filed pursuant to Section 5(a) hereof;
(b) The documents incorporated by
reference in the Registration Statement, the Prospectus or the Time of Sale
Information, when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Registration Statement,
the
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Prospectus
or the Time of Sale Information or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(c) The Registration Statement, the
Preliminary Prospectus and the Prospectus conform, and any further amendments
or supplements to the Registration Statement, the Preliminary Prospectus or the
Prospectus will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”),
and the rules and regulations of the Commission thereunder and do not and
will not, as of the latest date as of which any part of the Registration
Statement relating to the Designated Securities became, or is deemed to have
become, effective under the Act in accordance with the rules and
regulations of the Commission thereunder as to the Registration Statement and
any amendment thereto, and as of the applicable filing date as to the
Preliminary Prospectus and the Prospectus and any amendment or supplement
thereto, respectively, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter of Designated Securities through the Representatives expressly
for use in the Registration Statement, the Preliminary Prospectus or the
Prospectus;
(d) The financial statements of the
Company filed as part of or incorporated by reference in the Registration Statement,
the Time of Sale Information and the Prospectus fairly present the financial
condition of the Company as of the dates indicated and the results of its
operations and cash flows for the periods therein specified and have been
prepared in conformity with United States generally accepted accounting
principles applied on a consistent basis throughout the periods involved,
except as otherwise indicated therein;
(e) The Company has not sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Time of Sale Information and the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Time of Sale Information and the Prospectus; and, since the
respective dates as of which information is given in the Time of Sale
Information, (i) the Company has not incurred any liabilities or
obligations, direct or contingent, or entered into any transactions, not in the
ordinary course of business, that are material to the Company, and (ii) there
has not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or results of operations
of the Company, in each case, otherwise than as set forth or contemplated in
the Time of Sale Information;
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(f) The Company has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, with corporate power and
authority to own its properties and conduct its business as described in the
Time of Sale Information and the Prospectus; the Company is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not reasonably be expected to have a Material Adverse
Effect (as defined herein); and the Company has no significant subsidiaries
(within the meaning of Rule 1-02(w) of Regulation S-X under the Act);
(g) The Company has an authorized
capitalization as set forth in the Time of Sale Information and the Prospectus,
and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable;
(h) The Securities have been duly
authorized by the Company, and, when Designated Securities are issued and
delivered pursuant to this Underwriting Agreement and the Pricing Agreement
with respect to such Designated Securities, such Designated Securities will
have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to the
security afforded by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has been duly
authorized by the Company and duly qualified under the Trust Indenture Act and,
at the Time of Delivery (as defined in Section 4 hereof), the Indenture
will be duly executed and delivered by the Company and will be a valid and
legally binding instrument, enforceable against the Company in accordance with
its terms, except as may be limited by (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization and other similar laws relating to or
affecting creditors’ rights generally, (ii) general equitable principles
(whether considered in a proceeding in equity or at law) and (iii) requirements
of reasonableness, good faith and fair dealing (collectively, the “Exceptions”);
and the Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Time of Sale Information and the
Prospectus;
(i) The First Mortgage Bonds have been
duly authorized by the Company, and, when the First Mortgage Bonds have been
issued and delivered pursuant to the Mortgage and the Indenture, such First
Mortgage Bonds will have been duly executed, authenticated, issued and
delivered, will constitute valid and legally binding obligations of the Company
entitled to the security afforded by the Mortgage, which will be substantially
in the form filed as an exhibit to the Registration Statement, and will be
owned and held by the Trustee, in trust, for the benefit of the holders of the
related Designated Securities; the Mortgage has been duly authorized by the
Company and duly qualified under the Trust Indenture Act and, at the Time of
Delivery for the related Designated Securities, the Mortgage (as supplemented
and amended by the Supplemental Indenture relating to the First Mortgage Bonds)
will be duly executed and delivered by the Company and will constitute a valid
and legally binding instrument, enforceable against the Company in accordance
with its terms, subject to the laws of the States of Missouri, Illinois and
Iowa affecting the remedies for the enforcement of the security provided for
therein and except as may be limited by the Exceptions; and the Mortgage
conforms, and the First Mortgage Bonds will conform, to the descriptions
thereof contained in the Time of Sale Information and the Prospectus;
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(j) Substantially all of the permanent,
fixed properties of the Company are owned in fee simple or are held under valid
leases, in each case subject only to the liens of current mortgages (including
the lien of the Mortgage) and “permitted liens” and “judgment liens” as defined
in the Mortgage; such minor imperfections of title and encumbrances, if any,
which are not substantial in amount, do not materially detract from the value
or marketability of the properties subject thereto and do not materially impair
the title of the Company to its properties or its right to use its properties
in connection with its business as presently conducted; and, based on the
Company’s balance sheet as of December 31, 2007, 8.14% of the Company’s
physical property and plant was located in the States of Illinois and Iowa;
(k) This Underwriting Agreement has been,
and the Pricing Agreement applicable to any Designated Securities, at the date
thereof, will be, duly authorized, executed and delivered by the Company;
(l) PricewaterhouseCoopers LLP, who has
audited certain financial statements of the Company incorporated by reference
in the Registration Statement, the Time of Sale Information and the Prospectus,
is an independent registered public accounting firm with respect to the Company
as required by the Act and the rules and regulations of the Commission
thereunder and the Public Company Accounting Oversight Board (United States);
(m) The issue of the First Mortgage Bonds
and the issue and sale of the Securities and the compliance by the Company with
all of the provisions of the Securities, the Indenture, the First Mortgage
Bonds, the Mortgage, this Underwriting Agreement and any Pricing Agreement, and
the consummation of the transactions herein and therein contemplated, will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in any violation
of the provisions of the Restated Articles of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties; the Missouri Public Service Commission has issued, or as of the
date of the Pricing Agreement applicable to any Designated Securities, will
have issued, its final orders (the “MPSC Orders”) authorizing the issuance and
sale of the Designated Securities by the Company and the issuance of the First
Mortgage Bonds by the Company; the MPSC Orders are, or as of the date of the
Pricing Agreement applicable to any Designated Securities, will be, in full
force and effect and not subject to appeal or rehearing and is, or as of the
date of the Pricing Agreement applicable to any Designated Securities, will be,
sufficient to authorize the transactions contemplated by this Underwriting
Agreement;
the Company will apply the net proceeds from the issuance and sale of
the Securities, as set forth under “Use of Proceeds” in the Time of Sale
Information and Prospectus, in a manner consistent with the MPSC Orders;
the Designated Securities and the First
Mortgage Bonds issued pursuant to the MPSC Orders shall be valid and binding in
accordance with their respective terms and the terms and limitations specified
in the MPSC Orders; and no other consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or body,
including, without limitation, any regulatory body of the State of Iowa and the
State of Illinois, is required for the issue and sale of the Securities and the
issue of the First Mortgage Bonds by the Company, or the consummation by the
Company of the transactions contemplated
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by
this Underwriting Agreement or any Pricing Agreement or the Indenture or the
Mortgage, except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters;
(n) The statements set forth in the
Preliminary Prospectus dated April 1, 2008 (together with the information
set forth in the Time of Sale Information) and the Prospectus under the
captions “Description of Senior Secured Notes,” “Description of Senior Secured
Debt Securities” and “Description of First Mortgage Bonds”, insofar as they
purport to constitute a summary of the terms of the Securities, the Indenture,
the Mortgage and the First Mortgage Bonds, and under the captions “Plan of
Distribution” and “Underwriting”, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(o) The Company is not (i) in
violation of its Restated Articles of Incorporation or By-laws, (ii) to
the best knowledge of the Company, after due inquiry, in violation of any law,
ordinance, administrative or governmental rule or regulation applicable to
the Company, the violation of which would reasonably be expected to have a
material adverse effect on the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company (a “Material
Adverse Effect”), or of any decree of any court or governmental agency or body
having jurisdiction over the Company, or (iii) in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, which default would reasonably be expected to have
a Material Adverse Effect;
(p) Other than as set forth in the Time of
Sale Information and the Prospectus, there are no legal or governmental
proceedings pending to which the Company is a party or of which any property of
the Company is the subject which, if determined adversely to the Company, would
individually or in the aggregate have a Material Adverse Effect; and, to the
Company’s knowledge, no such proceedings are threatened by governmental
authorities or others;
(q) The Company is not and, after giving
effect to the offering and sale of the Designated Securities and the
application of the proceeds thereof, will not be an “investment company,” or an
entity “controlled” by an investment company, as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”);
(r) Except as set forth in the Time of
Sale Information and the Prospectus, the Company (i) is in compliance with
any and all applicable federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) has
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and (iii) is in
compliance with all terms and conditions of any such permit, license or
approval, except as to clauses (i) and (iii) where such
non-compliance with Environmental Laws or failure to receive or comply with the
terms and conditions of required
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permits,
licenses or other approvals would not, singly or in the aggregate, reasonably
be expected to have a Material Adverse Effect;
(s) The Time of Sale Information, at the
Time of Sale did not, and at the Time of Delivery will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the Representatives
expressly for use in such Time of Sale Information. No statement of material fact that will be
included in the Prospectus has been omitted from the Time of Sale Information
and no statement of material fact included in the Time of Sale Information that
is required to be included in the Prospectus will be omitted therefrom;
(t) Other than the Registration
Statement, any Preliminary Prospectus and the Prospectus, the Company
(including its agents and representatives, other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under the Act) that
constitutes an offer to sell or solicitation of an offer to buy the Designated
Securities (each such communication by the Company or its agents and
representatives (other than a communication referred to in clause (i) below),
an “Issuer Free Writing Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Act
or Rule 134 under the Act or (ii) the documents listed on Annex III
hereto and other written communications approved in writing in advance by the
Representatives. Each such Issuer Free
Writing Prospectus complied in all material respects with the Act, has been
filed in accordance with the Act (to the extent required thereby) and, when
taken together with any Preliminary Prospectus filed prior to the first use of
such Issuer Free Writing Prospectus, did not, and at the Time of Delivery will
not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly for
use in any Issuer Free Writing Prospectus.
Each Issuer Free Writing Prospectus listed on Part B of Annex III
hereto does not conflict with the information contained in the Registration
Statement, the Time of Sale Information or the Prospectus;
(u) The Company is not an ineligible
issuer and is a well-known seasoned issuer, in each case as defined under the
Act, in each case at the times specified in the Act in connection with the
offering of the Designated Securities;
(v) The Company maintains a system of
internal control over financial reporting (as such term is defined in Rule 13a-15(f) under
the Exchange Act) that complies with the requirements of the Exchange Act and
has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial
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statements
for external purposes in accordance with generally accepted accounting
principles. Except as disclosed in the
Time of Sale Information and the Prospectus, the Company’s internal control
over financial reporting as of December 31, 2007 was effective and the
Company is not aware of any material weaknesses in its internal control over
financial reporting;
(w) Except as disclosed in the Time of Sale
Information and the Prospectus, since the date of the latest audited financial
statements included or incorporated by reference in the Time of Sale
Information and the Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over
financial reporting; and
(x) The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) under
the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material
information relating to the Company is made known to the Company’s principal
executive officer and principal financial officer by others within those
entities; and such disclosure controls and procedures as of December 31,
2007 were effective.
3. Upon the execution of the Pricing Agreement applicable
to any Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Time of Sale Information and the Prospectus.
4. Designated Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, and in such authorized denominations and
registered in such names as the Representatives may request, shall be delivered
by or on behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to the Representatives at least forty-eight
hours in advance or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the “Time of Delivery” for such Designated Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus in a form
approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) and
Rule 430A, Rule 430B or Rule 430C under the Act not later than
the Commission’s close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be required
by Rule 424(b); to prepare a final term sheet, containing solely a
description of the Designated Securities, in a form approved by the
Representatives and to file such final term sheet pursuant to Rule 433(d) under
the Act within the time required by such Rule; to file all other material
required to be filed by the Company with the Commission pursuant to Rule 433(d) under
the Act; to make no further amendment or any supplement to the Registration
Statement or the Prospectus after the date of the Pricing Agreement relating to
such Designated Securities and prior to the Time of Delivery for such
Designated Securities which shall be disapproved by the Representatives for
such
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Designated
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement or any amendment
or supplement to any Issuer Free Writing Prospectus after such Time of Delivery
and furnish the Representatives with copies thereof; before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing
Prospectus, to furnish to the Representatives and counsel for the Underwriters
a copy of the proposed Issuer Free Writing Prospectus for review and not to
prepare, use, authorize, approve, refer to or file any such Issuer Free Writing
Prospectus disapproved by the Representatives; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is required (but
for Rule 172 under the Act) in connection with the offering or sale of the
Designated Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes effective
or any supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating to the
Designated Securities, of the suspension of the qualification of such
Designated Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose or pursuant to
Section 8A of the Act against the Company or relating to the offering of
the Designated Securities, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any prospectus relating to the
Designated Securities or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take
such action as the Representatives may reasonably request to qualify the
Designated Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
such Designated Securities, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York
City time, on the New York Business Day (as defined in Section 15 hereof)
next succeeding the date of this Underwriting Agreement and from time to time,
including the New York Business Day next succeeding the date of any Pricing
Agreement, to furnish the Underwriters with written and electronic copies of
the Prospectus and each Issuer Free Writing Prospectus (to the extent not
previously delivered), as amended or supplemented, in New York City in such
quantities as the Representatives may reasonably request, and, if the delivery
of a prospectus is required at any time (but for Rule 172 under the Act)
in connection with the offering or sale of the Designated Securities and if at
such time any event shall have occurred as a result of which the Prospectus,
the Time of Sale Information or any Issuer Free Writing Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus, such Time of Sale Information or such Issuer Free Writing
Prospectus as then amended or supplemented is delivered, not misleading, or, if
for any other reason it shall be
10
necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer in securities
as many written and electronic copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, or, if at any time prior to the Time of Delivery (i) any event
shall occur or condition shall exist as a result of which the Time of Sale
Information as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances, not misleading
or (ii) it is necessary to amend or supplement the Time of Sale
Information to comply with law, the Company will immediately notify the
Underwriters thereof and forthwith prepare and, subject to Section 5(a) above,
file with the Commission (to the extent required) and furnish to the
Underwriters and to such dealers as the Representatives may designate, such
amendments or supplements to the Time of Sale Information as may be necessary
so that the statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances, be misleading or so
that the Time of Sale Information will comply with law;
(d) To make generally available to its
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earning statement of the
Company (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the
date of the Pricing Agreement for any Designated Securities and continuing to
and including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company by the Representatives,
and (ii) the Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any debt securities of
the Company which mature more than one year after such Time of Delivery and
which are substantially similar to such Designated Securities, without the
prior written consent of the Representatives;
(f) If the Company elects to rely upon Rule 462(b),
the Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this Underwriting Agreement or the date
of the applicable Pricing Agreement, as applicable, and the Company shall at
the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the Act;
(g) The Company will apply the net
proceeds from the sale of any Designated Securities for the purposes set forth
in the Registration Statement, the Time of Sale Information and the Prospectus;
and
(h) The Company will, pursuant to
reasonable procedures developed in good faith, retain copies of each Issuer
Free Writing Prospectus that is not filed with the Commission in accordance
with Rule 433 under the Act.
11
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any Time of Sale Information and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Underwriting Agreement, any Pricing
Agreement, the Indenture, the Mortgage, any blue sky surveys, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for offering
and sale under state securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with any blue sky surveys;
(iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the
Securities and the First Mortgage Bonds; (vii) the fees and expenses of
the Trustees and any agent of the Trustees and the fees and disbursements of
counsel for the Trustees in connection with the Indenture, the Securities, the
Mortgage and the First Mortgage Bonds; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 6. It is understood, however, that, except as
provided in this Section 6, and Sections 9 and 12 hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of their
counsel and transfer taxes on resale of any of the Securities by them.
7. Each Underwriter hereby represents and agrees that,
except for one or more term sheets containing the information set forth in
Schedule III to the applicable Pricing Agreement, it has not and will not use,
authorize use of, refer to, or participate in the use of, any “free writing
prospectus”, as defined in Rule 405 under the Act (which term includes use
of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release
issued by the Company) other than (i) one or more term sheets relating to
the Designated Securities which are not Issuer Free Writing Prospectuses and
which contain preliminary terms of the Designated Securities and related
customary information not inconsistent with the final term sheet filed by the
Company pursuant to Section 5(a) hereof, (ii) a free writing prospectus that
contains no “issuer information” (as defined in Rule 433(h)(2) under
the Act) that was not included (including through incorporation by reference)
in the Preliminary Prospectus or a previously filed Issuer Free Writing
Prospectus, (iii) any Bloomberg L.P. or other electronic communication
regarding comparable bond prices, (iv) any Issuer Free Writing Prospectus
listed on Annex III hereto or prepared pursuant to Section 2(t) or Section 5(a) hereof,
or (v) any free writing prospectus prepared by such Underwriter and
approved by the Company in advance in writing.
8. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company in
or incorporated by reference in the Pricing Agreement relating to such
12
Designated
Securities are, at and as of the Time of Sale and the Time of Delivery for such
Designated Securities, true and correct, the condition that the Company shall
have performed all of its obligations hereunder theretofore to be performed,
and the following additional conditions:
(a) The Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) and Rule 430A, Rule 430B
or Rule 430C within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section 5(a) hereof;
each Issuer Free Writing Prospectus shall have been timely filed with the
Commission under the Act (in the case of an Issuer Free Writing Prospectus, to
the extent required by Rule 433 under the Act); if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement
shall have become effective by 10:00 P.M., Washington, D.C. time, on the
date of this Underwriting Agreement or the date of such Pricing Agreement; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose or
pursuant to Section 8A of the Act against the Company or related to the
offering of the Designated Securities shall have been initiated or threatened
by the Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives’ reasonable
satisfaction;
(b) Counsel for the Underwriters shall
have furnished to the Underwriters such written opinion or opinions, dated the
Time of Delivery for such Designated Securities, with respect to the matters
covered in paragraphs (iii), (iv), (v), (xiii) and (xvi) of subsection (c) below
as well as such other related matters as the Underwriters may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters. In addition, such counsel shall opine that
the statements set forth in the Preliminary Prospectus (together with the
information set forth in the other Time of Sale Information) and the Prospectus
as amended or supplemented under the caption “Material United States Federal
Income Tax Consequences,” to the extent that they purport to constitute
summaries of matters of law or regulation or legal conclusions, are accurate in
all material respects;
(c) Steven R. Sullivan, Esq., Senior
Vice President, General Counsel and Secretary of the Company or other counsel
for the Company reasonably satisfactory to the Underwriters shall have
furnished to the Underwriters their written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory to the
Representatives ((i) with such changes therein as may be agreed upon by
the Company and the Underwriters with the approval of counsel for the
Underwriters, and (ii) if the Time of Sale Information shall be supplemented
after being furnished to the Underwriters for use in offering the Designated
Securities, with changes therein to reflect such supplementation), to the
effect that:
(i) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Missouri, with corporate power and
authority to own its properties and conduct its business as described in the
Time of Sale Information and the Prospectus as amended or supplemented; and the
Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
13
that
the failure to be so qualified or be in good standing would not have a Material
Adverse Effect;
(ii) To
such counsel’s knowledge and other than as described in the Time of Sale
Information and the Prospectus as amended or supplemented, there are no legal
or governmental proceedings pending to which the Company is a party or of which
any property of the Company is the subject which, if determined adversely to
the Company, would individually or in the aggregate reasonably be expected to
have a Material Adverse Effect; to such counsel’s knowledge, no such
proceedings are threatened by governmental authorities or others; there is no
franchise, contract or other document of a character required to be described
in the Registration Statement, the Time of Sale Information or the Prospectus
as amended or supplemented, or to be filed as an exhibit (either thereto or to
a document incorporated therein by reference), that is not described or filed
as required; and the statements included or incorporated by reference in the
Time of Sale Information and the Prospectus as amended or supplemented
describing any legal proceedings or material contracts or agreements relating
to the Company fairly summarize such matters;
(iii) This
Underwriting Agreement and the Pricing Agreement with respect to the Designated
Securities have been duly authorized, executed and delivered by the Company;
(iv) The
Designated Securities have been duly authorized, executed, and issued by the
Company and, assuming due authentication thereof by the Trustee and upon
payment and delivery in accordance with the terms hereof and the Pricing
Agreement, will constitute valid and legally binding obligations of the
Company, except as may be limited by the Exceptions, and will be entitled to
the benefit of the security afforded by the Indenture;
(v) The
Indenture has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, except as may be limited by
the Exceptions; and the Indenture has been duly qualified under the Trust
Indenture Act;
(vi) The
First Mortgage Bonds have been duly authorized, executed and issued by the
Company and, assuming due authentication thereof by the Mortgage Trustee and
upon delivery in accordance with the terms of the Mortgage and the Indenture,
will constitute valid and legally binding obligations of the Company, except as
may be limited by the Exceptions, and will be entitled to the benefit of the
security afforded by the Mortgage;
(vii) The
Mortgage (including the Supplemental Indenture relating to the First Mortgage
Bonds) has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject
14
to
provisions of the Mortgage being limited by the laws of the States of Missouri,
Illinois or Iowa affecting the remedies for the enforcement of the security
provided for therein, which laws do not, in such counsel’s opinion, make
inadequate remedies necessary for the realization of the benefits of such
security and except as may be limited by the Exceptions; and the Mortgage has
been duly qualified under the Trust Indenture Act;
(viii) The
issue of the First Mortgage Bonds and the issue and sale of the Designated
Securities and the compliance by the Company with the provisions of the
Designated Securities, the Indenture, the First Mortgage Bonds, the Mortgage,
this Underwriting Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company is a party or by which
the Company is bound or to which any of the property or assets of the Company
is subject, which would reasonably be expected to have a Material Adverse
Effect, nor will such actions result in any violation of the provisions of the
Restated Articles of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties;
(ix) The
Missouri Public Service Commission has duly authorized the issue and sale of
the Designated Securities by the Company and the issue of the First Mortgage
Bonds by the Company pursuant to the MPSC Orders; the MPSC Orders are
sufficient for the issue and sale of the Designated Securities by the Company as
contemplated by this Underwriting Agreement and the issue of the First Mortgage
Bonds by the Company as contemplated by the Mortgage and are in full force and
effect and are not subject to appeal or rehearing; the Designated Securities
and the First Mortgage Bonds issued pursuant to the MPSC Orders are valid and
binding in accordance with their respective terms and the terms and limitations
specified in the MPSC Orders; no other consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body, including, without limitation, any regulatory body of the State of Iowa
and the State of Illinois, is required for the issue and sale of the Designated
Securities and the issue of the First Mortgage Bonds by the Company or the
consummation by the Company of the transactions contemplated by this
Underwriting Agreement or such Pricing Agreement or the Indenture or the
Mortgage, except such as have been obtained under the Act and the Trust
Indenture Act and except such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state securities or
blue sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters (as to which such counsel need
express no opinion);
(x) The
Company is not (i) in violation of its By-laws or Restated Articles of
Incorporation or (ii) to such counsel’s knowledge, in default in the
15
performance
or observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or any of its properties
may be bound;
(xi) The
Company is not, and after giving effect to the offering and sale of the
Designated Securities and the application of the net proceeds thereof, will not
be, an “investment company,” or an entity “controlled” by an investment
company, as such terms are defined in the Investment Company Act;
(xii) The
documents incorporated by reference in the Time of Sale Information and the
Prospectus as amended or supplemented (other than the financial statements and
related schedules and other financial data included or incorporated by
reference therein, as to which such counsel need express no opinion), when they
were filed with the Commission complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and such counsel has no reason to
believe that any of such documents, when they were so filed contained, in the
case of a registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were filed under the Act
or the Exchange Act with the Commission, an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
documents were so filed, not misleading;
(xiii) The
Registration Statement, as of the date as of which any part of the Registration
Statement is deemed to have become effective under the Act in accordance with Section 11(d) of
the Act and Rule 430B of the rules and regulations of the Commission
thereunder, and the Preliminary Prospectus and the Prospectus as amended or
supplemented, as of the date each was filed with the Commission pursuant to Rule 424(b) under
the Act (in each case, other than the financial statements and related
schedules and other financial data included or incorporated by reference
therein, as to which such counsel need express no opinion), complied as to form
in all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; although such
counsel does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the Time of
Sale Information or the Prospectus, except for those referred to in subsection
(xvi) of this Section 8(c) and those that relate to such counsel,
such counsel has no reason to believe that (1) the Registration Statement
or any further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules and other
financial data included or incorporated by reference therein, as to which such
counsel need express no opinion), as of the date as of which any part of the
Registration Statement is deemed to have become effective under the Act in
16
accordance
with Section 11(d) of the Act and Rule 430B of the rules and
regulations of the Commission thereunder, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (2) the Time
of Sale Information (other than the financial statements and related schedules
and other financial data included or incorporated by reference therein, as to
which such counsel need express no opinion), at the Time of Sale, contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (3) the
Prospectus as amended or supplemented or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules and other financial data included or
incorporated by reference therein, as to which such counsel need express no
opinion), as of its date or on the date of such opinion, contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the Registration
Statement has become, and as of the date of such opinion is, effective under
the Act; any required filing of the Preliminary Prospectus and the Prospectus
as amended or supplemented, pursuant to Rule 424(b) under the Act has
been made in the manner and within the time period required by the applicable
paragraph of such Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement has been issued, and no proceedings
for that purpose have been instituted or, to the best knowledge of such
counsel, threatened under Section 8 or Section 8A of the Act;
(xiv) The
delivery to the Trustee in the State of Missouri of the First Mortgage Bonds is
effective to perfect the security interest in the First Mortgage Bonds on the
date of such delivery and, assuming that the Trustee maintains possession of
the First Mortgage Bonds in the State of Missouri, such security interest,
insofar as it secures the related Designated Securities, is not subject to any
present or future prior liens;
(xv) Except
as otherwise set forth in the Time of Sale Information and the Prospectus as
amended or supplemented, the Company has such valid franchises, certificates of
convenience and necessity, operating rights, licenses, permits, consents,
approvals, authorizations and orders of governmental bodies, political
subdivisions or regulatory authorities then obtainable, free from unduly
burdensome restrictions, as are necessary for the acquisition, construction,
ownership, maintenance and operation of the properties now owned by it and the
conduct of the business now carried on by it as described in the Registration
Statement, the Time of Sale Information and the Prospectus as amended or
supplemented, with minor exceptions that, in the opinion of such counsel, do
not interfere with the practical operation of the Company’s business, and, to
the best of such counsel’s knowledge, the Company is not in default or violation
thereof in any material respect and is carrying on its business in substantial
compliance
17
therewith
and with all applicable federal, state and other laws and regulations that are
material to the Company;
(xvi) The
statements set forth in the Preliminary Prospectus (together with the
information set forth in the other Time of Sale Information) and the Prospectus
as amended or supplemented under the captions “Description of Senior Secured
Debt Securities,” “Description of First Mortgage Bonds” and “Description of
Senior Secured Notes” insofar as they purport to constitute a summary of the
terms of the Designated Securities, and under the captions “Plan of
Distribution” and “Underwriting”, insofar as they purport to summarize the
provisions of the laws and documents referred to therein, are accurate and
complete summaries in all material respects;
(xvii) The
principal plants and other important units of property of the Company are held
by the Company in fee simple or are located on real property held by the
Company in fee simple, subject only to the lien of the Mortgage and to
permitted and judgment liens as defined in the Mortgage, except that (a) a
portion of the Osage plant reservoir, certain facilities at the Sioux plant,
most of Peno Creek and Audrain combustion turbine generation facilities,
certain substations and most of the Company’s transmission and distribution
lines and gas mains are situated on lands occupied under leases, easements,
franchises, licenses or permits; (b) the United States and/or State of
Missouri own, or have or may have, paramount rights with respect to, certain
lands lying in the bed of the Osage River or located between the inner and
outer harbor lines of the Mississippi River, on which certain generating and
other properties of the Company are located; and (c) the United States
and/or State of Illinois and/or State of Iowa and/or city of Keokuk, Iowa, own,
or have or may have, paramount rights with respect to, certain lands lying in
the bed of the Mississippi River on which a portion of the Keokuk plant is
located. Such counsel shall state that
such exceptions do not in such counsel’s opinion materially affect the title of
the Company to its properties or its right to use its properties in connection
with its business as presently conducted;
(xviii) The
Mortgage constitutes a valid and direct first lien on substantially all the
properties and franchises of the Company not expressly excepted from the lien
thereof, subject to permitted liens as defined in the Mortgage and judgment
liens with respect to which cash in the amount thereof has been deposited with
the Mortgage Trustee; provided that the lien of the Indenture on real property
of the Company acquired after the date of recordation of the supplemental
indenture dated December 1, 2005 in each county where the Company owns
property or conducts business, with respect to properties in Illinois or Iowa,
and after the date of filing such supplemental indenture with the Secretary of
State of the State of Missouri, with respect to properties in Missouri, may not
be effective in some cases against creditors or purchasers for value without
notice whose rights to such property attach prior to the recording of the
Supplemental Indenture;
18
(xix)
The
statements in the Time of Sale Information and the Prospectus as amended or
supplemented that are stated therein to have been made on the authority of such
counsel have been reviewed by such counsel and, as to matters of law and legal
conclusions, are correct; and
(xx)
No recordation, registration or filing of
the Indenture or any supplemental indenture or instrument of further assurance
is necessary in the States of Missouri, Illinois or Iowa to make effective the
security interest intended to be created by the Indenture with respect to the
First Mortgage Bonds.
Such
opinion shall also state that such counsel has no knowledge of any litigation,
pending or threatened, that challenges the validity of the Designated
Securities, the Indenture, the First Mortgage Bonds, the Mortgage, this
Underwriting Agreement or the Pricing Agreement, or that seeks to enjoin the
performance of the Company’s obligations hereunder or thereunder or that might
have a Material Adverse Effect except as disclosed in or contemplated by the
Time of Sale Information and the Prospectus as amended or supplemented.
Such
counsel’s opinion with respect to title of the Company to its properties and
the rank of the lien of the Mortgage and the Supplemental Indenture shall state
that with regard to such properties located in Illinois, it is based on
consultations with Illinois counsel and may be, with regard to its properties
owned in fee, based in whole or in part on title searches made on recent dates
by title abstract companies, by other attorneys or real estate employees of an
affiliate of the Company, and such counsel’s opinion with regard to such other
properties may be based in whole or in part on title examinations made and
title opinions rendered at various times by other attorneys regarded by him as
competent, and, with regard to all properties of the Company, upon his general
familiarity with titles to properties of the Company; provided that such
counsel’s opinion is stated to be in reliance upon such title searches or opinions. Such counsel shall also state that such
searches and opinions are satisfactory in scope and form to such counsel and
that in such counsel’s opinion, the Underwriters are justified in relying
thereon. Copies of such title searches
or opinions shall be furnished to counsel for the Underwriters upon their
reasonable request.
In
rendering such opinion, such counsel may rely (i) as to factual matters,
upon certificates or written statements from appropriate representatives of the
Company or upon certificates of public officials, and (ii) as to matters
involving the application of the laws of the State of New York, upon the
opinion of counsel for the Underwriters delivered to the Underwriters pursuant
to Section 8(b) hereof.
Such
counsel’s opinion may further state that it is addressed to the Underwriters
and is rendered solely for their benefit and may not be relied upon in any
manner by any other person (other than counsel for the Underwriters as to
certain matters involving the application of the laws of the States of
Missouri, Illinois and Iowa in its opinion to the Underwriters at the Time of
Delivery) without such counsel’s prior written consent.
(d)
On the date of the
Pricing Agreement for such Designated Securities at a time prior to the
execution of the Pricing Agreement with respect to such Designated Securities
19
and at the Time of
Delivery for such Designated Securities, PricewaterhouseCoopers LLP shall have
furnished to the Underwriters a letter, dated the date of such Pricing
Agreement, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and in form and substance satisfactory to
the Representatives;
(e)
(i) The Company
shall not have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Time of Sale
Information as amended or supplemented on or prior to the date of the Pricing
Agreement relating to the Designated Securities any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Time of Sale Information as amended or supplemented on or prior to the date of
the Pricing Agreement relating to the Designated Securities, and (ii) since
the respective dates as of which information is given in the Time of Sale
Information as amended or supplemented on or prior to the date of the Pricing
Agreement relating to the Designated Securities (x) the Company has not
incurred any liabilities or obligations, direct or contingent, or entered into
any transactions, not in the ordinary course of business, that are material to
the Company and (y) there shall not have been any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders’ equity or results of
operations of the Company, otherwise than as set forth or contemplated in the
Time of Sale Information as amended or supplemented on or prior to the date of
the Pricing Agreement relating to the Designated Securities, the effect of
which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Time of Sale Information and the Prospectus;
(f)
On or prior to the
Time of Delivery, the Representatives shall have received satisfactory evidence
that the Designated Securities have received ratings of BBB or higher by
Standard & Poor’s Ratings Services and A3 or higher by Moody’s
Investors Service, Inc., and that such ratings are in effect at the Time
of Delivery;
(g)
On or after the date of
the Pricing Agreement relating to the Designated Securities (i) no
downgrading shall have occurred in the rating accorded the Company’s debt
securities or preferred stock by any “nationally recognized statistical rating
organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company’s debt securities or preferred stock, unless such
surveillance or review has been publicly announced prior to the date of the
Pricing Agreement;
(h)
On or after the date of
the Pricing Agreement relating to the Designated Securities there shall not
have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally by the Commission, the New York
Stock Exchange or The Nasdaq Stock Market or any setting of minimum or maximum
prices for trading thereon; (ii) a suspension or material limitation in
trading in the Company’s securities by the Commission, the New York Stock
Exchange, the American Stock Exchange or The Nasdaq
20
Stock Market; (iii) a
general moratorium on commercial banking activities declared by Federal, New
York State or Missouri State authorities or a material disruption has occurred
in commercial banking or securities settlement or clearance services in the
United States; (iv) any outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war; or (v) the occurrence of any other calamity or crisis or
any change in financial, political or economic conditions in the United States
or elsewhere, if the effect of any event specified in clause (iv) or (v) in
the judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated Securities
on the terms and in the manner contemplated in the Time of Sale Information and
the Prospectus;
(i)
The Company shall have
complied with the provisions of Section 5(c) hereof with respect to
the furnishing of the Prospectus and each Issuer Free Writing Prospectus on the
New York Business Day next succeeding the date of this Underwriting Agreement
or next succeeding the date of the Pricing Agreement, as applicable;
(j)
The Company shall have
furnished or caused to be furnished to the Representatives at the Time of
Delivery for the Designated Securities a certificate or certificates of
officers of the Company satisfactory to the Representatives as to the accuracy
of the representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of Delivery, as
to the matters set forth in subsections (a) and (e) of this Section and
as to such other matters as the Representatives may reasonably request; and
(k)
The MPSC Orders shall
be in full force and effect at the Time of Delivery.
If any of the events
specified in Sections 8(e), 8(g) or 8(h) hereof shall have occurred
or the representation in Section 2(s) is incorrect in any respect,
the Pricing Agreement relating to the Designated Securities may be terminated
by the Representatives on notice to the Company at any time on or prior to the
Time of Delivery and upon such notice being given, the parties hereto and
thereto shall be released and discharged from their respective obligations
hereunder and thereunder (except for the liability of the Company pursuant to
Sections 6 or 12 hereof and the obligations of the parties hereto and thereto
pursuant to Section 9 hereof).
Notwithstanding any such termination, the provisions of Sections 6, 9,
11, 12, 13, 14 and 16 hereof shall remain in full force and effect.
9.
(a) The Company will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) an untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or, in the case of any action arising out of the issuance and sale
of the Securities, in any prior registration statement to which the Prospectus,
as a combined prospectus under Rule 429 under the Act, relates), or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (ii) any
untrue statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto), any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information,
or
21
any “issuer information” filed or required to be filed
under Rule 433(d) of the Act, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, the
Prospectus as amended or supplemented, any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Time of Sale Information, or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Securities through
the Representatives expressly for use in the Registration Statement, the
Prospectus as amended or supplemented, any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Time of Sale Information, or any such amendment
or supplement.
(b)
Each Underwriter
severally and not jointly will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Issuer Free Writing Prospectus, the Time of Sale Information, the
Registration Statement, any Preliminary Prospectus, the Prospectus as amended
or supplemented, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Issuer Free Writing
Prospectus, the Time of Sale Information, the Registration Statement, any
Preliminary Prospectus, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c)
Promptly after receipt
by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses
22
of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the indemnified
party in any such action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it or
other indemnified parties that are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of any such action; or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying
party. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified party.
(d)
If the indemnification
provided for in this Section 9 is unavailable to or insufficient to hold
harmless an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters of the Designated Securities on
the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations.
The relative benefits received by the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received
by such Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or such Underwriters on the other and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and
the Underwriters agree that it would
23
not be just and
equitable if contribution pursuant to this subsection (d) were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e)
The obligations of the
Company under this Section 9 shall be in addition to any liability which
the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 9
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls
the Company within the meaning of the Act.
10.
(a) If any Underwriter shall default in its
obligation to purchase the Designated Securities which it has agreed to purchase
under the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after
such default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event
that, within the respective prescribed period, the Representatives notify the
Company that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Designated Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement, the Time of Sale Information or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement,
the Time of Sale Information or the Prospectus which in the opinion of the
Representatives may thereby be made necessary.
The term “Underwriter” as used in this Underwriting Agreement shall
include any person substituted under this Section 10 with like effect as
if such person had originally been a party to the Pricing Agreement with
respect to such Designated Securities.
24
(b)
If, after giving effect
to any arrangements for the purchase of the Designated Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Company
as provided in subsection (a) above, the aggregate principal amount of
such Designated Securities which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of the Designated Securities,
then the Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Designated Securities which
such Underwriter agreed to purchase under the Pricing Agreement relating to
such Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Designated Securities which such Underwriter agreed to purchase under such
Pricing Agreement) of the Designated Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c)
If, after giving effect
to any arrangements for the purchase of the Designated Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Company
as provided in subsection (a) above, the aggregate principal amount of
Designated Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Designated Securities, as referred to in
subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters
to purchase Designated Securities of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
11.
The respective indemnities, agreements,
representations, warranties and other statements of the Company and the several
Underwriters, as set forth in this Underwriting Agreement or made by or on
behalf of them, respectively, pursuant to this Underwriting Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of
and payment for the Securities.
12.
If any Pricing Agreement shall be terminated pursuant
to Section 10 hereof, the Company shall not then be under any liability to
any Underwriter with respect to the Designated Securities covered by such
Pricing Agreement except as provided in Sections 6 and 9 hereof; but, if for
any other reason Designated Securities are not delivered by or on behalf of the
Company as provided herein or the Company does not comply with its other
obligations as provided herein, the Company will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in writing
by the Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 9 hereof.
25
13.
In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
All
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Representatives as set forth in the Pricing
Agreement; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Registration
Statement: Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 9(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters’ Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
14.
This Underwriting Agreement and each Pricing Agreement
shall be binding upon, and inure solely to the benefit of, the Underwriters,
the Company and, to the extent provided in Sections 9 and 11 hereof, the
officers and directors of the Company and each person who controls the Company
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Underwriting Agreement or any such Pricing
Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15.
Time shall be of the essence of each Pricing
Agreement. As used herein, “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for
business. As used herein, “New York
Business Day” shall mean any day other than Saturday, Sunday or any day on
which banks located in the State of New York are authorized or obligated to
close.
16.
This Underwriting Agreement and each Pricing Agreement
shall be governed by and construed in accordance with the laws of the State of
New York.
17.
This Underwriting Agreement and each Pricing Agreement
may be executed by any one or more of the parties hereto and thereto in any
number of counterparts, each of which shall be deemed to be an original, but
all such respective counterparts shall together constitute one and the same
instrument.
18.
The Company hereby acknowledges that the Underwriters
are acting solely in the capacity of an arm’s length contractual counterparty
to the Company with respect to the offering of Securities contemplated hereby
(including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Company or any other
person. Additionally, neither the
Representatives nor any other Underwriters are advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters
in any jurisdiction. The Company shall
consult with its own advisors concerning such
26
matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company with
respect thereto. Any review by the Underwriters of the Company, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not be
on behalf of the Company.
If
the foregoing is in accordance with your understanding, please sign and return
to us a counterpart hereof.
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Very
truly yours,
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Union
Electric Company
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d/b/a
AmerenUE
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By:
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/s/ Jerre E. Birdsong
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Name:
Jerre E. Birdsong
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Title:
Vice President and Treasurer
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Accepted
as of the date hereof:
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Goldman,
Sachs & Co.
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J.P.
Morgan Securities Inc.
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As
Representatives of the
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several
Underwriters
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Goldman,
Sachs & Co.
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/s/ Goldman, Sachs & Co.
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(Goldman, Sachs & Co.)
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J.P.
Morgan Securities Inc.
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By:
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/s/ Robert Bottamedi
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Name:
Robert Bottamedi
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Title:
Vice President
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Signature Page to UE Underwriting Agreement
ANNEX I
Pricing Agreement
April 1, 2008
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Goldman,
Sachs & Co.
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J.P.
Morgan Securities Inc.
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As
Representatives of the
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several
Underwriters
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c/o
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Goldman,
Sachs & Co.
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85
Broad Street
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New
York, New York 10004
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J.P.
Morgan Securities Inc.
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270
Park Avenue
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New
York, New York 10017
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Ladies
and Gentlemen:
Union
Electric Company, d/b/a AmerenUE, a Missouri corporation (the “Company”),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated April 1, 2008 (the “Underwriting Agreement”),
between the Company on the one hand and Goldman, Sachs & Co. and J.P.
Morgan Securities Inc., as Representatives of the several Underwriters (the “Representatives”)
on the other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the
“Designated Securities”) with the terms set forth in Schedule III hereto. Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein; and each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein
defined. The Representatives designated
to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 13 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 13 are set forth at the end of Schedule II hereto.
Subject
to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the principal
amount of Designated Securities set forth opposite the name of such Underwriter
in Schedule I hereto.
I-1
For
all purposes of the Underwriting Agreement, the “Time of Sale” means 12:10 p.m.
(Eastern time) on the date hereof.
The purchase price for
the Designated Securities shall be 99.048% of the aggregate principal amount
thereof.
If
the foregoing is in accordance with your understanding, please sign and return
to us a counterpart hereof, and upon acceptance hereof by you, on behalf of
each of the Underwriters, this letter and such acceptance hereof, including the
provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
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Very
truly yours,
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Union
Electric Company
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d/b/a
AmerenUE
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By:
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Name:
Jerre E. Birdsong
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Title:
Vice President and Treasurer
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Accepted
as of the date hereof:
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Goldman,
Sachs & Co.
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J.P.
Morgan Securities Inc.
|
|
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As
Representatives of the
|
|
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several
Underwriters
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Goldman,
Sachs & Co.
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(Goldman, Sachs & Co.)
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J.P.
Morgan Securities Inc.
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By:
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Name:
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Title:
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I-2
SCHEDULE I
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Underwriter
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Principal
Amount of
Designated
Securities
to be
Purchased
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Goldman,
Sachs & Co.
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$
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112,500,000
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J.P. Morgan
Securities Inc.
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112,500,000
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Lazard Capital
Markets LLC
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12,500,000
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Morgan
Keegan & Company, Inc.
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12,500,000
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Total
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$
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250,000,000
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I-I-1
SCHEDULE II
Title
of Designated Securities:
6.00%
Senior Secured Notes due 2018
Aggregate
principal amount:
$250,000,000
Price
to Public:
99.698% of the principal
amount of the Designated Securities, plus accrued interest, if any, from the
Time of Delivery
Purchase
Price by Underwriters:
99.048% of the principal
amount of the Designated Securities
Form of
Designated Securities:
Book-entry
only form represented by one or more global securities deposited with The
Depository Trust Company (“DTC”) or its designated custodian, to be made
available for checking by the Representatives at least twenty-four hours prior
to the Time of Delivery at the offices of DTC in New York, New York or its
designated custodian.
Specified
funds for payment of purchase price:
Federal
(same day) funds
Time
of Delivery:
10:00 a.m. (New York
City time), April 8, 2008
First
Mortgage Bonds:
$250,000,000 First
Mortgage Bonds, Senior Secured Notes Series LL
Supplemental
Indenture relating to First Mortgage Bonds:
Dated April 1, 2008
Maturity:
April 1,
2018
Interest
Rate:
6.00%
Interest
Payment Dates:
April 1
and October 1, commencing October 1, 2008
Redemption
Provisions:
The Designated Securities
may be redeemed at the option of the Company as set forth in the Prospectus as
supplemented relating to such Designated Securities
I-II-1
Sinking Fund Provisions:
No sinking fund
provisions
Defeasance
provisions:
As set forth in the
Indenture.
Closing
location for delivery of Designated Securities:
Pillsbury
Winthrop Shaw Pittman LLP, 1540 Broadway, New York, New York 10036
Additional
Closing Conditions:
Names
and addresses of Representatives:
Designated
Representatives:
Goldman,
Sachs & Co.
J.P.
Morgan Securities Inc.
Addresses
for Notices, etc.:
Goldman,
Sachs & Co.
85
Broad Street, 20th Floor
New
York, New York 10004
Attention:
Registration Department
J.P.
Morgan Securities Inc.
270
Park Avenue
New
York, New York 10017
Attention:
High Grade Syndicate Desk – 8th Floor
Facsimile
No.: (212) 834-6081
I-II-2
SCHEDULE III
Filed Pursuant to Rule 433
Registration No. 333-128517
April 1, 2008
Pricing Term Sheet
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Issuer:
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Union
Electric Company d/b/a AmerenUE
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Ratings:
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A3/BBB/A+
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Issue:
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Senior
Secured Notes due 2018
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Offering
Size:
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$250,000,000
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Coupon:
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6.00%
per annum
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Trade
Date:
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April 1,
2008
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Settlement
Date:
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April 8,
2008
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Maturity:
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April 1,
2018
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Treasury
Benchmark:
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3.5%
due February 15, 2018
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US
Treasury Spot:
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99-21
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US
Treasury Yield:
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3.541%
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Spread
to Treasury:
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+250
basis points
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Re-offer
Yield:
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6.041%
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Price
to Public (Issue Price):
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99.698%
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Gross
Proceeds:
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$249,245,000
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Interest
Payment Dates:
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April 1
and October 1, commencing October 1, 2008
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Optional
Redemption:
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Make-Whole
Call, at any time at a discount rate of Treasury plus 40 basis points
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Security:
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The
Senior Secured Notes will be secured by a series of the issuer’s first
mortgage bonds
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CUSIP:
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906548CF7
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Minimum
Denomination:
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$2,000
x $1,000
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Joint
Bookrunners:
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Goldman,
Sachs & Co. and J.P. Morgan Securities Inc.
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Co-managers:
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Lazard Capital Markets
LLC and Morgan Keegan & Company, Inc.
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The
issuer has filed a registration statement (including a prospectus) with the SEC
for the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer has
filed with the SEC for more complete information about the issuer and this
offering. You may get these documents for
free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or
any dealer participating in the offering will arrange to send you the
prospectus if you request it by calling Goldman, Sachs & Co. toll-free
at 1-866-471-2526 or J.P. Morgan Securities Inc. collect at (212) 834-4533.
I-III-1
ANNEX II
Pursuant
to Section 8(d) of the Underwriting Agreement, the accountants shall
furnish letters to the Underwriters to the effect that:
(i)
They are an independent registered public
accounting firm with respect to the Company within the meaning of the Act and
the applicable rules and regulations thereunder adopted by the Commission
and the Public Company Accounting Oversight Board (“PCAOB”);
(ii)
In their opinion, the consolidated
financial statements and financial statement schedule audited by them and
included or incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related rules and regulations adopted by the
Commission;
(iii)
They have made a review in accordance with standards
established by the PCAOB of the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included
in the Company’s Quarterly Report(s) on Form 10-Q for the quarter
ended [ ]
incorporated by reference into the Preliminary Prospectus and the Prospectus;
(iv)
They have compared the ratios of earnings
to fixed charges in the Preliminary Prospectus and the Prospectus with the
disclosure requirements of Regulation S-K and on the basis of limited
procedures specified in such letter nothing came to their attention as a result
of the foregoing procedures that caused them to believe that this information
does not conform in all material respects with the disclosure requirements of
Item 503(d) of Regulation S-K;
(v)
On the basis of limited procedures, not
constituting an audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company, inspection of the minute books of the
Company since the date of the latest audited consolidated financial statements
included or incorporated by reference in the Preliminary Prospectus and the
Prospectus, inquiries of officials of the Company responsible for financial and
accounting matters and such other inquiries and procedures as may be specified
in such letter, nothing came to their attention that caused them to believe
that: (i) any material modifications should be made to the unaudited
consolidated statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Company’s Quarterly Report(s) on Form 10-Q
for the quarter ended [ ] incorporated
by reference in the Preliminary Prospectus and the Prospectus, for them to be
in conformity with generally accepted accounting principles, or (ii) the
unaudited consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Company’s Quarterly
Report(s) on Form 10-Q for the quarter ended [ ] incorporated by reference in the
Preliminary Prospectus and the Prospectus do not comply as to form in
II-1
all
material respects with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations adopted by the
Commission;
(vi)
nothing came to their attention as a
result of the foregoing procedures that caused them to believe that (i) at
[ ], there was any
change in
the capital stock, increase in long-term debt (including short-term debt,
current maturities of long-term debt and intercompany notes payable) or
decrease in net current assets (working capital) or in stockholders’ equity of
the Company as compared with amounts shown in the [ ] unaudited consolidated balance sheet
included in the Company’s Quarterly
Report(s) on Form 10-Q for the quarter ended [ ] incorporated by reference in the Pricing
Prospectus and the Prospectus
, or (ii) for the period from[ ] to [
], there were any decreases, as compared with the corresponding period
in the preceding year, in consolidated operating revenues or net income, except
in all instances for changes, increases or decreases which the
Pricing Prospectus and the Prospectus
disclose
have occurred or may occur and except
such other decreases as may be specified in such
letter
;
(vii)
officials of the
Company have advised them that no consolidated financial data as of any date or
for any period subsequent to [ ] are
available; accordingly, the procedures carried out by them with respect to
changes in financial statement items after [
] have, of necessity, been even more limited than those with respect to
the periods referred to in paragraph (v).
They have inquired of certain officials of the Company who have
responsibility for financial and accounting matters as to whether (a) at
[ ] there was any change in the capital
stock, increase in long-term debt (including short-term debt, current
maturities of long-term debt and intercompany notes payable) or decrease in net
current assets (working capital) or in stockholders’ equity of the Company as
compared with amounts shown in the [ ]
unaudited consolidated balance sheet
included in the Company’s Quarterly Report(s) on Form 10-Q
for the quarter ended [ ] incorporated
by reference in the Pricing Prospectus and the Prospectus
; or (b) for
the period from [ ] to [ ], there were any decreases, as compared with
the corresponding period in the preceding year, in consolidated operating
revenues or net income. Those officials
referred to above stated that they cannot comment on any decreases in net
current assets (working capital) or in stockholders’ equity at [ ] compared to [ ], or decreases as compared with the
corresponding period in the previous year in consolidated operating revenues or
net income for the period from [ ] to
[ ].
On the basis of these inquiries and their reading of the minutes as
described in paragraph (v), nothing came to their attention that caused them to
believe that there was any such change in capital stock or increase in
long-term debt (including short-term debt, current maturities of long-term debt
and intercompany notes payable), except in all instances for changes or
increases which the
Pricing
Prospectus and the Prospectus
disclose have occurred or may occur.
(viii)
In addition to the examination referred to in their
report(s) included or incorporated by reference in the Preliminary
Prospectus or the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraph (v) above,
they have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information specified by
the Representatives which are derived from the general accounting records of
the Company and its
II-2
subsidiaries,
which appear in the Preliminary Prospectus and the Prospectus (excluding
documents incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Preliminary Prospectus and the
Prospectus specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in agreement.
All
references in this Annex II to the Preliminary Prospectus shall be deemed to
refer to the Preliminary Prospectus (including the documents incorporated by
reference therein) included with the Time of Sale Information (including the
documents incorporated by reference therein) as defined in the Underwriting
Agreement as of the date of the letter delivered on the date of the Pricing
Agreement for purposes of such letter.
II-3
ANNEX III
A)
Issuer Free Writing Prospectuses To Be
Included As Time of Sale Information
Pricing Term Sheet dated April 1, 2008
B)
Issuer Free Writing Prospectuses Not
Included As Time of Sale Information
None
III-1
Exhibit 4.4
Company Order
April 8, 2008
The Bank of New York
Trust Company, N.A.
Two North LaSalle Street,
Suite 1020
Chicago, IL 60602
Ladies and Gentlemen:
Application is hereby
made to The Bank of New York Trust Company, N.A., a national banking association,
as trustee (the “Trustee”), under the Indenture dated as of June 1, 2006
(the “Indenture”), between Illinois Power Company, an Illinois corporation (the
“Company”), and the Trustee for the authentication and delivery of $337,000,000
aggregate principal amount of the Company’s 6.25% Senior Secured Notes due 2018
(the “Notes”), pursuant to the provisions of Article II of the
Indenture. Additional Notes without
limitation as to amount, and without the consent of the holders of the then
Outstanding Notes, may also be authenticated and delivered in the manner
provided in Section 2.05 of the Indenture.
All capitalized terms not defined herein that are defined in the
Indenture shall have the same meaning as used in the Indenture.
The Notes will be initially
issued pursuant to Section 4(2) of the Securities Act of 1933, as
amended (the “Securities Act”), in the form of Global Notes registered in the
name of Cede & Co. (as nominee for The Depository Trust Company (“DTC”),
New York, New York, which will act as the Depositary for the Global
Notes). Pursuant to Section 2.05(c) of
the Indenture, the Notes will have the terms set forth in the form of Global
Note attached hereto as Exhibit A and in the form of definitive Note
attached hereto as Exhibit B (which terms are incorporated by reference in
this Company Order). The Global Notes
shall bear the depository legend in substantially the form set forth in Exhibit A
attached hereto. The Notes will be
issued only in denominations of $1,000 and in integral multiples of $1,000 in
excess thereof.
Initially, beneficial
interests in the Notes offered and sold to qualified institutional buyers (as
defined in Rule 144A under the Securities Act) (“QIBs”) in reliance upon Rule 144A
under the Securities Act will be represented by one or more separate Global
Notes (each, a “Rule 144A Global Certificate”) registered in the name of
Cede & Co., as registered owner and as nominee for DTC and shall
include the non-registration and registration rights legends set forth in Exhibit A
attached hereto. Initially beneficial interests in the Notes offered and sold
to purchasers pursuant to Regulation S under the Securities Act will be
evidenced by one or more separate temporary Global Notes (each, a “Temporary
Regulation S Global Certificate”) and will be registered in the name of Cede &
Co., as registered owner and as nominee for DTC for the accounts of The
Euroclear System (“Euroclear”) or Clearstream Banking, Luxembourg, société
anonyme (“Clearstream”) and shall include the Regulation S and
registration rights legends set forth in Exhibit A attached hereto. Notes offered and sold to institutional “accredited
investors” (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act) who are not QIBs and who are not purchasers pursuant to
Regulation S under the Securities Act will be in definitive form in the form
attached hereto as Exhibit B and shall include the non-registration and
registration
rights legends set forth
therein. The Trustee and the Company
will have no responsibility or liability for any aspect of transfers of
beneficial interests in the Notes (which transfers will be conducted pursuant
to the customary procedures of DTC), any records of DTC of beneficial interests
or any transactions between DTC and its participants or between any such
participants and any other beneficial owners or for monitoring, supervising or
reviewing of any thereof.
Transfers of beneficial
interests in the Rule 144A Global Certificate will be subject to the
restrictions on transfer contained in the non-registration legend set forth in Exhibit A
hereto. Prior to the expiration of the
period of 40 consecutive days beginning on and including the later of (x) the
day on which the offering of the Notes commences and (y) the original
issue date of the Notes (the “Distribution Compliance Period”), transfers of
beneficial interests in the Temporary Regulation S Global Certificate will
be subject to the restrictions on transfer contained in the Regulation S
legend set forth in Exhibit A hereto.
At any time after the expiration of the Distribution Compliance Period,
upon receipt by the Trustee and the Company of a certificate from Euroclear or
Clearstream certifying that it has received certification of non-U.S.
beneficial ownership of a Temporary Regulation S Global Certificate (or portion
thereof) with respect to any Notes to be exchanged, one or more separate
permanent Global Notes (each, a “Permanent Regulation S Global Certificate”
and, together with each Temporary Regulation S Global Certificate, each, a “Regulation
S Global Certificate”) shall be duly executed by the Company and authenticated
by the Trustee as provided in the Indenture, shall be registered in the name of
Cede & Co., as registered owner and as nominee for DTC, and shall
include the registration rights legend set forth in Exhibit A hereto and
shall be deposited with the Trustee, as custodian for DTC. The Trustee, as
custodian for DTC, shall reflect by endorsement thereon a decrease in the
principal amount of the Temporary Regulation S Global Certificate in an amount
equal to the principal amount of such Temporary Regulation S Global Certificate
exchanged. Prior to the expiration of the Distribution Compliance Period,
beneficial interests in any Temporary Regulation S Global Certificate may only
be held through Euroclear or Clearstream. After the expiration of the
Distribution Compliance Period, transfers of beneficial interests in the
Permanent Regulation S Global Certificate will not be subject to any
restrictions.
In connection with any
transfer of Notes, the Trustee and the Company shall be under no duty to
inquire into, may conclusively presume the correctness of, and shall be fully
protected in relying upon the certificates and other information (set forth in
the form of definitive Note attached hereto as Exhibit B, for use in
connection with the transfer of the Notes in definitive form, or set forth in Exhibit A-1
attached hereto, for use in connection with the transfer of beneficial
interests between a Rule 144A Global Certificate and a Regulation S Global
Certificate or to a Note in definitive form, or otherwise) received from the
Holders and any transferees of any Notes regarding the validity, legality and
due authorization of any such transfer, the eligibility of the transferee to
receive such Note and any other facts and circumstances related to such
transfer. Transfers of beneficial
interests between a Rule 144A Global Certificate and a Regulation S Global
Certificate, and other transfers relating to beneficial interests in the Notes
in global form, shall be reflected by endorsements of the Trustee, as custodian
for DTC, on the schedule attached to such certificate.
The Company has entered
into a Registration Rights Agreement dated as of April 8, 2008 (the “Registration
Rights Agreement”) with the initial purchasers of the Notes pursuant to which
2
the Notes that are issued
and sold without registration (the “Private Notes”) under the Securities Act
may be exchanged for Notes that will be registered under the Securities Act and
that will otherwise have substantially the same terms as the Private Notes (the
“Exchange Notes”), except that such Exchange Notes will be issued in the form
of Global Note attached hereto as Exhibit A and will bear all customary
legends (except for the non-registration, Regulation S and registration rights
legends) or, in lieu of such exchange, the Company has agreed to file a shelf
registration statement for the resale of the Notes (in which case any Notes so
resold will be issued in the form of Global Note attached hereto as Exhibit A
and bear all customary legends (except for the non-registration, Regulation S
and registration rights legends)). The
Private Notes will be exchanged for Exchange Notes only pursuant to an
effective registration statement under the Securities Act and otherwise in
accordance with the Registration Rights Agreement and the Indenture. The Private Notes and the Exchange Notes will
constitute a single series of notes under the Indenture. Exchange Notes shall be authenticated and
delivered by the Trustee at one time or from time to time upon the receipt by
the Trustee of a Company Order in principal amounts equal to the principal
amounts of the Private Notes surrendered in exchange therefor. In addition, upon the receipt of such Company
Order, the Trustee will take such actions as to effectuate the exchange of any
Private Notes for Exchange Notes in accordance with the Registration Rights
Agreement and the Indenture.
In connection with this
Company Order, there are delivered to you herewith the following:
1.
Certified copies of the resolutions
adopted by the Board of Directors of the Company authorizing this Company Order
and the issuance and sale of the Notes by the Company pursuant to Section 2.05(c)(1) of
the Indenture;
2.
Opinions of Counsel addressed to you or
in which it is stated that you may rely pursuant to Section 2.05(c)(2) of
the Indenture;
3.
Expert’s certificate pursuant to Section 2.05(c)(3) of
the Indenture;
4.
Officers’ Certificate pursuant to Section 2.05(c)(4) of
the Indenture;
5.
Two Global Notes representing the Notes
executed on behalf of the Company in accordance with the terms of Section 2.05(a) of
the Indenture, specifying the terms of the Notes (which terms are incorporated
by reference herein); and
6.
Pursuant to Section 2.05(c)(3) of
the Indenture, the Company’s Mortgage Bonds designated “Mortgage Bonds, Senior
Notes Series CC” (the “Mortgage Bonds”) in the principal amount of $337,000,000
relating to the Notes, fully registered in the name of the Trustee in trust for
the benefit of the Holders from time to time of such Notes.
You are hereby instructed
to authenticate the Global Notes representing the Notes and hold them as DTC’s
custodian. The Global Notes representing
the Notes are to be held for delivery through the facilities of DTC to the
initial purchasers thereof against payment therefor at the closing in respect
of the sale thereof, such closing to be held at 10:00 a.m., New York time,
3
April 8, 2008, at
the offices of Pillsbury Winthrop Shaw Pittman LLP, 1540 Broadway, New
York, New York 10036.
4
Please acknowledge
receipt of the Global Notes representing the Notes, the instructions referred
to above and the supporting documentation pursuant to the Indenture referred to
above (including the Mortgage Bonds in trust for the benefit of the Holders).
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Very truly yours,
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Illinois Power Company
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By:
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/s/ Jerre E. Birdsong
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Name:
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Jerre E. Birdsong
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Title:
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Vice
President and Treasurer
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Receipt from the
Company of the Global Notes representing the Notes, certain instructions
related thereto and the supporting documentation pursuant to the Indenture
(including the Mortgage Bonds in trust for the benefit of the Holders) in
connection with the authentication and delivery of the Notes is hereby
acknowledged.
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The Bank of New York
Trust Company, N.A.,
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as Trustee
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By:
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/s/ Judy Bartolini
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Name: Judy Bartolini
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Title: Vice President
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6
EXHIBIT A
FORM OF GLOBAL NOTE
[depository legend]
THIS SECURITY IS A GLOBAL
NOTE REGISTERED IN THE NAME OF THE DEPOSITARY (REFERRED TO HEREIN) OR A NOMINEE
THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR THE INDIVIDUAL NOTES
REPRESENTED HEREBY AS PROVIDED IN THE INDENTURE REFERRED TO BELOW, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[non-registration legend to be included on Private
Notes]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE WHICH IS ONE YEAR
(OR SIX MONTHS IF ALL APPLICABLE CONDITIONS TO SUCH RESALE UNDER RULE 144 UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION THEREOF) ARE SATISFIED) AFTER
THE LATER OF THE ORIGINAL ISSUANCE DATE THEREOF, THE ISSUANCE DATE OF ANY
SUBSEQUENT REOPENING, AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE
THEREOF WAS THE OWNER OF THIS SECURITY OR THE EXPIRATION OF SUCH SHORTER PERIOD
AS MAY BE PRESCRIBED BY SUCH RULE 144 (OR SUCH SUCCESSOR PROVISION)
PERMITTING RESALES OF THIS SECURITY WITHOUT ANY CONDITIONS (THE “RESALE
RESTRICTION TERMINATION DATE”) OTHER THAN (1) TO THE COMPANY, (2) IN
A TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER
A-1
TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ATTACHED TO THIS SECURITY), (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S
UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ATTACHED TO THIS SECURITY), (5) TO AN
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED
BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ATTACHED TO THIS SECURITY)
THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION, AND A CERTIFICATE IN THE FORM ATTACHED TO THIS SECURITY IS
DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE OR (6) IN
ACCORDANCE WITH ANOTHER APPLICABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THE FOREGOING RESTRICTIONS ON
RESALE WILL NOT APPLY SUBSEQUENT TO THE RESALE RESTRICTION TERMINATION DATE. THE HOLDER OF THIS SECURITY ACKNOWLEDGES THAT
THE COMPANY RESERVES THE RIGHT PRIOR TO ANY OFFER, SALE OR OTHER TRANSFER (1) PURSUANT
TO CLAUSE (2) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY AND (2) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE AS TO COMPLIANCE WITH CERTAIN CONDITIONS TO TRANSFER
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY.
[Regulation S legend
to be included on Private Notes]
THIS SECURITY IS REPRESENTED BY A TEMPORARY REGULATION
S GLOBAL CERTIFICATE WITHIN THE MEANING OF THE COMPANY ORDER ESTABLISHING THE
TERMS OF THIS SECURITY. BY ITS ACQUISITION HEREOF, EACH HOLDER OF THIS
SECURITY, AND EACH PERSON THAT ACQUIRES A BENEFICIAL INTEREST IN SUCH SECURITY,
AGREES THAT PRIOR TO THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD (AS
DEFINED IN THE COMPANY ORDER ESTABLISHING THE TERMS OF THIS SECURITY),
BENEFICIAL INTERESTS IN THIS SECURITY MAY ONLY BE OFFERED, RESOLD OR
OTHERWISE TRANSFERRED (A) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT
OF 1933 OR (B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 903
OR 904 UNDER THE SECURITIES ACT OF 1933 AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION.
[registration rights
legend to be included on Private Notes]
A-2
BY ITS ACCEPTANCE OF THE SECURITIES EVIDENCED HEREBY
OR A BENEFICIAL INTEREST IN SUCH SECURITIES, THE HOLDER OF, AND ANY PERSON THAT
ACQUIRES A BENEFICIAL INTEREST IN, SUCH SECURITIES AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT (THE “REGISTRATION RIGHTS
AGREEMENT”) DATED AS OF APRIL 8, 2008 AND RELATING TO THE REGISTRATION UNDER
THE SECURITIES ACT OF SECURITIES EXCHANGEABLE FOR THE SECURITIES EVIDENCED
HEREBY AND REGISTRATION OF THE SECURITIES EVIDENCED HEREBY.
Illinois Commerce Commission ID No.: 6480
ILLINOIS POWER COMPANY
6.25% SENIOR SECURED NOTE DUE 2018
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CUSIP:
[4520292CU1][U4504NCD9]
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NUMBER: 1
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ISIN:
[US452092CU12][USU4504NCD94]
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ORIGINAL
ISSUE DATE: April 8, 2008
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PRINCIPAL
AMOUNT:
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Listed
on Schedule
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I
hereto
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INTEREST
RATE: 6.25%
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MATURITY DATE: April 1, 2018
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ILLINOIS POWER COMPANY, a
corporation of the State of Illinois (the “COMPANY”), for value received hereby
promises to pay to CEDE & CO. or registered assigns, the principal
amount specified above on the Maturity Date set forth above, and to pay
interest thereon from and including the Original Issue Date specified above or
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually in arrears on April 1 and October 1
in each year, commencing October 1, 2008, and on the Maturity Date, at the
per annum interest rate set forth above until the principal hereof is paid or
made available for payment. If the Company does not comply with certain of its
obligations under the Registration Rights Agreement, this bond shall, in
accordance with Section 2(e) of the Registration Rights Agreement,
bear additional interest (“Additional Interest”) in addition to the interest
provided for in the immediately preceding sentence. For purposes of this Note, the term “interest”
shall be deemed to include interest provided for in the second immediately
preceding sentence and Additional Interest, if any. No interest shall accrue on
the Maturity Date, so long as the principal amount of this Note is paid in full
on the Maturity Date. The interest so payable and punctually paid or duly
provided for on any such Interest Payment Date will (except for interest
payable on the Maturity Date set forth above or, if applicable, upon redemption
or acceleration), as provided in the Indenture (as defined below), be paid to
the Person in whose name this Note is registered at the close of business on
the Regular Record Date for such interest, which shall be March 15 or September 15,
as the case may be, next preceding such Interest Payment Date; provided, that
the first Interest Payment Date for any part of this Note, the Original Issue
Date of which is after a Regular Record Date but prior to the applicable
Interest Payment Date, shall be the Interest Payment Date following the next
succeeding Regular Record Date; and provided, that interest payable on the
Maturity Date set forth above or, if applicable, upon redemption or
acceleration, shall be payable to the Person to whom principal shall be
payable. Except as otherwise provided in the Indenture, any such interest not
so punctually paid or duly provided for
A-3
will forthwith
cease to be payable to the Holder on such Regular Record Date and shall be paid
to the Person in whose name this Note is registered at the close of business on
a Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Noteholders not more than fifteen
days nor fewer than ten days prior to such Special Record Date. Payment of the principal of and interest and
premium on this Note shall be payable pursuant to Section 2.12(a) of
the Indenture.
This Note is a Global
Note in respect of a duly authorized issue of 6.25% Senior Secured Notes due
2018 (the “NOTES OF THIS SERIES”, which term includes any Global Notes
representing such Notes) of the Company issued and to be issued under an
Indenture dated as of June 1, 2006 between the Company and The Bank of New
York Trust Company, N.A., as trustee (herein called the “TRUSTEE”, which term
includes any successor Trustee under the Indenture) and indentures supplemental
thereto (collectively, the “INDENTURE”). Under the Indenture, one or more
series of notes may be issued and, as used herein, the term “Notes” refers to
the Notes of this Series. Reference is
hereby made to the Indenture for a more complete statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Noteholders and of the terms upon which the Notes are and
are to be authenticated and delivered. This Note has been issued in respect of
the series designated on the first page hereof, issued in the initial
aggregate principal amount of $337,000,000.
The Notes will be secured
by mortgage bonds (the “SENIOR NOTE MORTGAGE BONDS”) delivered by the Company
to the Trustee for the benefit of the Holders of the Notes, issued under the
General Mortgage Indenture and Deed of Trust, dated as of November 1, 1992
between the Company and The Bank of New York Trust Company, N.A. (formerly BNY
Midwest Trust Company), as successor trustee (the “MORTGAGE TRUSTEE”), as
supplemented and modified (collectively, the “MORTGAGE”). Reference is made to
the Mortgage and the Indenture for a description of the rights of the Trustee
as holder of the Senior Note Mortgage Bonds, the property mortgaged and
pledged, the nature and extent of the security and the rights of the holders of
mortgage bonds, under the Mortgage and the rights of the Company and of the
Mortgage Trustee in respect thereof, the duties and immunities of the Mortgage
Trustee and the terms and conditions upon which the Senior Note Mortgage Bonds
are secured and the circumstances under which additional mortgage bonds may be
issued.
So long as any of the
Notes of this Series are outstanding, the Company will not optionally
redeem, purchase or otherwise retire in full its outstanding Mortgage Bonds,
and, therefore, the Release Date will not occur.
Each Note of this Series shall
be dated and issued as of the date of its authentication by the Trustee and
shall bear an Original Issue Date. Each Note of this Series issued upon
transfer, exchange or substitution of such Note shall bear the Original Issue
Date of such transferred, exchanged or substituted Note, as the case may be.
Interest on this Note
will accrue from and including the Original Issue Date specified above to, but
excluding, October 1, 2008, and thereafter, from and including each
Interest Payment Date to, but excluding, the next succeeding Interest Payment
Date or the Maturity Date, as the case may be.
A-4
Interest payments for
this Note shall be computed on the basis of a 360-day year consisting of twelve
30-day months. If any Interest Payment
Date falls on a day that is not a Business Day, the Interest Payment Date will
be the next succeeding Business Day (and without any interest or other payment
in respect of any such delay). If the
Maturity Date of this Note or any redemption date falls on a day that is not a
Business Day, the payment of principal, premium, if any, and interest will be
made on the next succeeding Business Day, and no interest on such payment shall
accrue for the period from and after the Maturity Date or such redemption date.
All or a portion of the
Notes of this Series may be redeemed at the option of the Company at any
time or from time to time. The redemption price for the Notes of this Series to
be redeemed on any redemption date will be equal to the greater of the
following amounts: (a) 100% of the principal amount of the Notes of this Series being
redeemed on the redemption date; or (b) the sum of the present values of
the remaining scheduled payments of principal and interest on the Notes of this
Series being redeemed on that redemption date (not including any portion
of any payments of interest accrued to the redemption date) discounted to the
redemption date on a semiannual basis at the Adjusted Treasury Rate (as defined
below) plus 45 basis points, as determined by the Reference Treasury Dealer (as
defined below); plus, in each case, accrued and unpaid interest thereon to the
redemption date. Notwithstanding the foregoing, installments of interest on
Notes of this Series that are due and payable on Interest Payment Dates
falling on or prior to a redemption date will be payable on the Interest
Payment Date to the Holder of this Note as of the close of business on the
relevant Regular Record Date. The redemption price will be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
The Company shall mail
notice of any redemption at least 30 days but not more than 60 days before the
redemption date to each Holder of the Notes of this Series to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after
the redemption date, interest will cease to accrue on the Notes of this Series or
portions thereof called for redemption.
“ADJUSTED TREASURY RATE”
means, with respect to any redemption date, the rate per annum equal to the
semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury Price for such
redemption date.
“COMPARABLE TREASURY
ISSUE” means the United States Treasury security selected by the Reference
Treasury Dealer as having a maturity comparable to the remaining term of the
Notes of this Series to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
term of such Notes of this Series.
“COMPARABLE TREASURY
PRICE” means, with respect to any redemption date, (A) the average of the
Reference Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (B) if
the Trustee obtains fewer than four such Reference Treasury Dealer Quotations,
the average of all such quotations, or (C) if only one Reference Treasury
Dealer Quotation is received, such quotation.
A-5
“REFERENCE TREASURY
DEALER” means (A) Barclays Capital Inc., BNP Paribas Securities Corp. or
Lehman Brothers Inc. or their respective affiliates which are primary U.S.
Government securities dealers in New York City (each, a “Primary Treasury
Dealer”), and their respective successors; provided, however, that if any of
the foregoing shall cease to be a Primary Treasury Dealer, the Company shall
substitute therefor another Primary Treasury Dealer; and (B) any other
Primary Treasury Dealer(s) selected by the Trustee after consultation with
the Company.
“REFERENCE TREASURY
DEALER QUOTATIONS” means, with respect to each Reference Treasury Dealer and
any redemption date, the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third
Business Day preceding such redemption date.
The Company, at its
option, and subject to the terms and conditions provided in the Indenture, will
be discharged from any and all obligations in respect of the Notes of this Series (except
for certain obligations including obligations to register the transfer or
exchange of Notes of this Series, replace stolen, lost or mutilated Notes of
this Series, maintain paying agencies and hold monies for payment in trust, all
as set forth in the Indenture) if the Company deposits with the Trustee money,
U.S. Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and any premium
and interest on the Notes of this Series on the dates such payments are
due in accordance with the terms of the Notes of this Series.
If an Event of Default
shall occur and be continuing with respect to the Notes, the principal of and
interest on the Notes may be declared due and payable in the manner and with
the effect provided in the Indenture and, upon such declaration, the Trustee
shall demand the redemption of the Senior Note Mortgage Bonds to the extent
provided in the Indenture.
The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modifications of the rights and obligations of the Company and the rights of
the Noteholders under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in aggregate principal amount of
the outstanding Notes. Any such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and upon all future Holders of
this Note and of any Note issued upon the registration of transfer hereof or in
exchange therefor or in lieu thereof whether or not notation of such consent or
waiver is made upon this Note.
As set forth in and
subject to the provisions of the Indenture, no Holder of any Notes will have
any right to institute any proceeding with respect to the Indenture or for any
remedy thereunder unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to such Notes, the
Holders of a majority in aggregate principal amount of the outstanding Notes
affected by such Event of Default shall have made written request and offered
reasonable indemnity to the Trustee to institute such proceeding as Trustee and
the Trustee shall have failed to institute such proceeding within 60 days;
provided,
A-6
however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on this
Note on or after the respective due dates expressed herein.
No reference herein to
the Indenture and to provisions of this Note or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Note at the times,
places and rates and the coin or currency prescribed in the Indenture.
As provided in the
Indenture and subject to certain limitations therein set forth, this Note may
be transferred only as permitted by the legend hereto and the provisions of the
Indenture.
The Indenture and the
Notes shall be governed by, and construed in accordance with, the laws of the
State of New York without regard to conflicts of law principles thereof.
Unless the certificate of
authentication hereon has been executed by the Trustee, directly or through an
Authenticating Agent by manual signature of an authorized officer, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
All terms used in this
Note that are defined in the Indenture shall have the meanings assigned to them
in the Indenture unless otherwise indicated herein.
A-7
IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed.
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ILLINOIS POWER COMPANY
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By:
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Title:
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Attest:
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Title:
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TRUSTEE’S CERTIFICATE
OF AUTHENTICATION
Dated: April 8, 2008
This Note is one of the Notes of the series herein
designated, described or provided for in the within-
mentioned Indenture.
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THE BANK OF NEW
YORK TRUST COMPANY, N.A.,
As Trustee
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By:
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Authorized Signatory
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A-8
SCHEDULE I
[144A]*[REGULATION
S]
*
GLOBAL
SECURITY
The
initial principal amount of Notes evidenced by this Global Note is
$ .
CHANGES
TO PRINCIPAL AMOUNT OF NOTES EVIDENCED BY GLOBAL NOTE
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Date
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Principal Amount of
Notes by which this
Global Note is to be
Reduced or Increased,
and Reason for
Reduction or Increase
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Remaining Principal
Amount of Notes
Represented by this
Global Note
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Notation Made by
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*
Include
bracketed language only in a Private Note.
A-9
EXHIBIT A-1
CERTIFICATE OF TRANSFER*
ILLINOIS POWER COMPANY
6.25% Senior Secured Notes due 2018
FOR VALUE RECEIVED, the undersigned sells,
assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING
NUMBER OF ASSIGNEE
Name
and address of assignee must be printed or typewritten.
$
principal
amount of beneficial interest in the referenced Security of the Company and
does hereby irrevocably constitute and appoint
to
transfer the said beneficial interest in such Security, with full power of
substitution in the premises.
The
undersigned certifies that said beneficial interest in said Security is being
resold, pledged or otherwise transferred as follows: (check one)
o
to the Company;
o
to a Person whom
the undersigned reasonably believes is a qualified institutional buyer within
the meaning of Rule 144A under the Securities Act of 1933, as amended (the
“Securities Act”), purchasing for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or other transfer is being made in reliance on Rule 144A;
o
in an offshore
transaction in accordance with Rule 903 or 904 of Regulation S under the
Securities Act;
o
to an institution
that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act that is acquiring this Security for
investment purposes and not for distribution (attach a copy of an Institutional
Accredited Investor Certificate in the form annexed signed by an authorized
officer of the transferee);
o
as otherwise
permitted by the non-registration legend appearing on this Security; or
o
as otherwise agreed
by the Company, confirmed in writing to the Trustee, as follows: [describe]
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Dated:
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Signature:
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NOTICE:
The signature to this assignment must correspond with the name as written
upon the face of the within
instrument in every particular without alteration or
enlargement, or any change whatever.
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*
Include this form of Certificate of Transfer only in a Private Note.
A-10
SIGNATURE GUARANTEE
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the requirement
of the registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
A-11
[FORM OF INSTITUTIONAL ACCREDITED INVESTOR CERTIFICATE]*
[Transferor
Name and Address]
Ladies
and Gentlemen:
In
connection with our proposed purchase of 6.25% Senior Secured Notes due 2018
(the “Notes”) issued by Illinois Power Company d/b/a AmerenIP (the “Issuer”),
we confirm that:
1. We have received a copy of the
Offering Memorandum (the “Offering Memorandum”) relating to the Notes and such
other information as we deem necessary in order to make our investment
decision. We acknowledge that we have
read and agree to the matters stated under the caption NOTICE TO INVESTORS in such
Offering Memorandum.
2. We understand that any
subsequent transfer of the Notes is subject to certain restrictions and
conditions set forth in the indenture relating to the Notes (the “Indenture”)
and as set forth under NOTICE TO INVESTORS in the Offering Memorandum and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with such restrictions and conditions
and the Securities Act of 1933, as amended (the “Securities Act”).
3. We understand that the offer
and sale of the Notes have not been registered under the Securities Act, and
that the Notes may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we sell any Notes, we will do so only (A) to the Issuer, (B) so
long as the Notes are eligible for resale pursuant to Rule 144A under the
Securities Act (“Rule 144A”), to a person whom we reasonably believe is a “qualified
institutional buyer” within the meaning of Rule 144A that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or other transfer is being made in
reliance on Rule 144A, (C) to an institutional “accredited investor”
(as defined below) that, prior to such transfer, furnishes to the Trustee (as
defined in the Indenture) a signed letter containing certain representations
and agreements relating to the restrictions on transfer of the Notes
(substantially in the form of this letter), (D) in an offshore transaction
in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant
to the exemption from registration provided by Rule 144 under the
Securities Act (if available), or (F) in accordance with another
applicable exemption from the registration requirements of, or in a transaction
not subject to, the Securities Act or pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Notes from us a notice advising such purchaser
that resales of the Notes are restricted as stated herein.
*
Include this form only in a Private Note.
A-12
4. We understand that, on any
proposed resale of any Notes, we will be required to furnish to the Trustee and
the Issuer such certification and other information as the Trustee and the
Issuer may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further
understand that the Notes purchased by us will bear a legend to the foregoing
effect.
5. We are an institutional “accredited
investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are acting are
each able to bear the economic risk of our or its investment.
6. We are acquiring the Notes
purchased by us for our own account or for one or more accounts (each of which
is an institutional “accredited investor”) as to each of which we exercise sole
investment discretion in each case for investment and not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Securities Act.
You,
the Issuer and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
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Very
truly yours,
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By:
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Name:
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Title:
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A-13
EXHIBIT B
FORM OF DEFINITIVE NOTE
[non-registration legend to be included on Private Notes]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE WHICH IS ONE YEAR
(OR SIX MONTHS IF ALL APPLICABLE CONDITIONS TO SUCH RESALE UNDER RULE 144 UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION THEREOF) ARE SATISFIED) AFTER
THE LATER OF THE ORIGINAL ISSUANCE DATE THEREOF, THE ISSUANCE DATE OF ANY
SUBSEQUENT REOPENING, AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE
THEREOF WAS THE OWNER OF THIS SECURITY OR THE EXPIRATION OF SUCH SHORTER PERIOD
AS MAY BE PRESCRIBED BY SUCH RULE 144 (OR SUCH SUCCESSOR PROVISION)
PERMITTING RESALES OF THIS SECURITY WITHOUT ANY CONDITIONS (THE “RESALE
RESTRICTION TERMINATION DATE”) OTHER THAN (1) TO THE COMPANY, (2) IN
A TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER
ATTACHED TO THIS SECURITY), (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF THIS SECURITY), (5) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR”
AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE IN THE FORM ATTACHED
TO THIS SECURITY IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE
OR (6) IN ACCORDANCE WITH ANOTHER APPLICABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. AN INSTITUTIONAL
ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES IT WILL FURNISH TO THE COMPANY
AND THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES
B-1
WITH THE FOREGOING
RESTRICTIONS. THE FOREGOING RESTRICTIONS
ON RESALE WILL NOT APPLY SUBSEQUENT TO THE RESALE RESTRICTION TERMINATION
DATE. THE HOLDER OF THIS SECURITY
ACKNOWLEDGES THAT THE COMPANY RESERVES THE RIGHT PRIOR TO ANY OFFER, SALE OR
OTHER TRANSFER (1) PURSUANT TO CLAUSE (2) PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS OR OTHER INFORMATION SATISFACTORY TO THE COMPANY AND (2) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE AS TO COMPLIANCE
WITH CERTAIN CONDITIONS TO TRANSFER IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE COMPANY.
[Regulation S legend
to be included on Private Notes]
BY ITS ACQUISITION HEREOF, EACH HOLDER OF THIS
SECURITY, AND EACH PERSON THAT ACQUIRES A BENEFICIAL INTEREST IN SUCH SECURITY,
AGREES THAT PRIOR TO THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD (AS
DEFINED IN THE COMPANY ORDER ESTABLISHING THE TERMS OF THIS SECURITY),
BENEFICIAL INTERESTS IN THIS SECURITY MAY ONLY BE OFFERED, RESOLD OR
OTHERWISE TRANSFERRED (A) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT
OF 1933 OR (B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 903
OR 904 UNDER THE SECURITIES ACT OF 1933 AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION.
[registration rights
legend to be included on Private Notes]
BY ITS ACCEPTANCE OF THE SECURITIES EVIDENCED HEREBY
OR A BENEFICIAL INTEREST IN SUCH SECURITIES, THE HOLDER OF, AND ANY PERSON THAT
ACQUIRES A BENEFICIAL INTEREST IN, SUCH SECURITIES AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT (THE “REGISTRATION RIGHTS
AGREEMENT”) DATED AS OF APRIL 8, 2008 AND RELATING TO THE REGISTRATION UNDER
THE SECURITIES ACT OF SECURITIES EXCHANGEABLE FOR THE SECURITIES EVIDENCED
HEREBY AND REGISTRATION OF THE SECURITIES EVIDENCED HEREBY.
B-2
Illinois Commerce Commission ID No.:
6480
ILLINOIS POWER COMPANY
6.25% SENIOR SECURED NOTE DUE 2018
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CUSIP:
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PRINCIPAL
AMOUNT: $337,000,000
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ISIN:
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ORIGINAL
ISSUE DATE: April 8, 2008
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MATURITY
DATE: April 1, 2018
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INTEREST
RATE: 6.25%
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NUMBER: 1
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ILLINOIS POWER COMPANY, a
corporation of the State of Illinois (the “COMPANY”), for value received hereby
promises to pay to CEDE & CO or registered assigns, the principal
amount specified above on the Maturity Date set forth above, and to pay
interest thereon from and including the Original Issue Date specified above or
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually in arrears on April 1 and October 1
in each year, commencing October 1, 2008, and on the Maturity Date, at the
per annum interest rate set forth above until the principal hereof is paid or
made available for payment. If the Company does not comply with certain of its
obligations under the Registration Rights Agreement, this bond shall, in
accordance with Section 2(e) of the Registration Rights Agreement,
bear additional interest (“Additional Interest”) in addition to the interest
provided for in the immediately preceding sentence. For purposes of this Note, the term “interest”
shall be deemed to include interest provided for in the second immediately
preceding sentence and Additional Interest, if any. No interest shall accrue on
the Maturity Date, so long as the principal amount of this Note is paid in full
on the Maturity Date. The interest so payable and punctually paid or duly
provided for on any such Interest Payment Date will (except for interest
payable on the Maturity Date set forth above or, if applicable, upon redemption
or acceleration), as provided in the Indenture (as defined below), be paid to
the Person in whose name this Note is registered at the close of business on
the Regular Record Date for such interest, which shall be March 15 or September 15,
as the case may be, next preceding such Interest Payment Date; provided, that
the first Interest Payment Date for any part of this Note, the Original Issue
Date of which is after a Regular Record Date but prior to the applicable
Interest Payment Date, shall be the Interest Payment Date following the next
succeeding Regular Record Date; and provided, that interest payable on the
Maturity Date set forth above or, if applicable, upon redemption or
acceleration, shall be payable to the Person to whom principal shall be
payable. Except as otherwise provided in the Indenture (referred to on the
reverse hereof), any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date
and shall be paid to the Person in whose name this Note is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given to
Noteholders not more than fifteen days nor fewer than ten days prior to such
Special Record Date. Principal,
applicable premium and interest due at the Maturity of this Note shall be
payable in immediately available funds when due upon presentation and surrender
of this Note at the corporate trust office of the Trustee or at the authorized
office of any paying agent in the Borough of Manhattan, The City and State of
New York or Chicago, Illinois. Interest on this Note (other than interest
payable at Maturity)
B-3
shall be paid by check
payable in clearinghouse funds to the Holder as its name appears on the
register; provided, that if the Trustee receives a written request from any
Holder of Notes, the aggregate principal amount of all of which having the same
Interest Payment Date as this Note equals or exceeds $10,000,000, on or before
the applicable Regular Record Date for such Interest Payment Date, interest on
the Note shall be paid by wire transfer of immediately available funds to a
bank within the continental United States (designated by such Holder in its
request or by direct deposit into the account of such Holder designated by such
Holder in its request if such account is maintained with the Trustee or any
paying agent).
REFERENCE IS HEREBY MADE
TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH IN FULL ON THE REVERSE HEREOF,
WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET
FORTH IN FULL AT THIS PLACE.
Unless the certificate of
authentication hereon has been executed by the Trustee referred to on the
reverse hereof, directly or through an Authenticating Agent by manual signature
of an authorized officer, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
B-4
IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed.
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ILLINOIS POWER COMPANY
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By:
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Title:
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Attest:
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Title:
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TRUSTEE’S CERTIFICATE
OF AUTHENTICATION
Dated: April 8, 2008
This Note is one of the Notes of the series herein
designated, described or provided for in the within-
mentioned Indenture.
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THE BANK OF NEW
YORK TRUST COMPANY, N.A.,
As Trustee
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By:
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Authorized Signatory
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B-5
[FORM OF REVERSE OF NOTE]
ILLINOIS POWER COMPANY
6.25% SENIOR SECURED NOTE DUE 2018
This Note is one of a
duly authorized issue of 6.25% Senior Secured Notes due 2018(the “NOTES OF THIS
SERIES”) of the Company issued and to be issued under an Indenture dated as of June 1,
2006, between the Company and The Bank of New York Trust Company, N.A., as
trustee (herein called the “TRUSTEE”, which term includes any successor Trustee
under the Indenture) and indentures supplemental thereto (collectively, the “INDENTURE”).
Under the Indenture, one or more series of notes may be issued and, as used
herein, the term “Notes” refers to the Notes of this Series. Reference is hereby made to the Indenture for
a more complete statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the
Noteholders and of the terms upon which the Notes are and are to be
authenticated and delivered. This Note is one of the series designated on the
face hereof, issued in the initial aggregate principal amount of $337,000,000.
The Notes will be secured
by mortgage bonds (the “SENIOR NOTE MORTGAGE BONDS”) delivered by the Company
to the Trustee for the benefit of the Holders of the Notes, issued under the
General Mortgage Indenture and Deed of
Trust, dated as of November 1, 1992 between the Company and The Bank of
New York Trust Company, N.A. (formerly BNY Midwest Trust Company), as successor
trustee (the “MORTGAGE TRUSTEE”), as supplemented and modified (collectively,
the “MORTGAGE”). Reference is made to the Mortgage and the Indenture for a
description of the rights of the Trustee as holder of the Senior Note Mortgage
Bonds, the property mortgaged and pledged, the nature and extent of the
security and the rights of the holders of mortgage bonds, under the Mortgage
and the rights of the Company and of the Mortgage Trustee in respect thereof,
the duties and immunities of the Mortgage Trustee and the terms and conditions
upon which the Senior Note Mortgage Bonds are secured and the circumstances
under which additional mortgage bonds may be issued.
So long as any of the
Notes of this Series are outstanding, the Company will not optionally
redeem, purchase or otherwise retire in full its outstanding Mortgage Bonds,
and, therefore, the Release Date will not occur.
Each Note of this Series shall
be dated and issued as of the date of its authentication by the Trustee and
shall bear an Original Issue Date. Each
Note of this Series issued upon transfer, exchange or substitution of such
Note shall bear the Original Issue Date of such transferred, exchanged or
substituted Note, as the case may be.
Interest on this Note
will accrue from and including the Original Issue Date specified above to, but
excluding, October 1, 2008, and thereafter, from and including each
Interest Payment Date to, but excluding, the next succeeding Interest Payment
Date or the Maturity Date, as the case may be.
Interest payments for
this Note shall be computed on the basis of a 360-day year consisting of twelve
30-day months. If any Interest Payment
Date falls on a day that is not a Business Day, the Interest Payment Date will
be the next succeeding Business Day (and without
B-6
any interest or other
payment in respect of any such delay).
If the Maturity Date of this Note or any redemption date falls on a day
that is not a Business Day, the payment of principal, premium, if any, and
interest will be made on the next succeeding Business Day, and no interest on
such payment shall accrue for the period from and after the Maturity Date or
such redemption date.
All or a portion of the
Notes of this Series may be redeemed at the option of the Company at any
time or from time to time. The redemption price for the Notes of this Series to
be redeemed on any redemption date will be equal to the greater of the
following amounts: (a) 100% of the principal amount of the Notes of this Series being
redeemed on the redemption date; or (b) the sum of the present values of
the remaining scheduled payments of principal and interest on the Notes of this
Series being redeemed on that redemption date (not including any portion
of any payments of interest accrued to the redemption date) discounted to the
redemption date on a semiannual basis at the Adjusted Treasury Rate (as defined
below) plus 45 basis points, as determined by the Reference Treasury Dealer (as
defined below); plus, in each case, accrued and unpaid interest thereon to the
redemption date. Notwithstanding the foregoing, installments of interest on
Notes of this Series that are due and payable on Interest Payment Dates
falling on or prior to a redemption date will be payable on the Interest
Payment Date to the Holder of this Note as of the close of business on the
relevant Regular Record Date. The redemption price will be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
The Company shall mail
notice of any redemption at least 30 days but not more than 60 days before the
redemption date to each Holder of the Notes of this Series to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after
the redemption date, interest will cease to accrue on the Notes of this Series or
portions thereof called for redemption.
“ADJUSTED TREASURY RATE”
means, with respect to any redemption date, the rate per annum equal to the
semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury Price for such
redemption date.
“COMPARABLE TREASURY
ISSUE” means the United States Treasury security selected by the Reference
Treasury Dealer as having a maturity comparable to the remaining term of the
Notes of this Series to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
term of such Notes of this Series.
“COMPARABLE TREASURY
PRICE” means, with respect to any redemption date, (A) the average of the
Reference Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (B) if
the Trustee obtains fewer than four such Reference Treasury Dealer Quotations,
the average of all such quotations, or (C) if only one Reference Treasury
Dealer Quotation is received, such quotation.
“REFERENCE TREASURY
DEALER” means (A) Barclays Capital Inc., BNP Paribas Securities Corp. or
Lehman Brothers Inc. or their respective affiliates which are primary U.S.
B-7
Government securities
dealers in New York City (each, a “Primary Treasury Dealer”), and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a Primary Treasury Dealer, the Company shall substitute therefor
another Primary Treasury Dealer; and (B) any other Primary Treasury Dealer(s) selected
by the Trustee after consultation with the Company.
“REFERENCE TREASURY
DEALER QUOTATIONS” means, with respect to each Reference Treasury Dealer and
any redemption date, the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third
Business Day preceding such redemption date.
The Company, at its
option, and subject to the terms and conditions provided in the Indenture, will
be discharged from any and all obligations in respect of the Notes of this Series (except
for certain obligations including obligations to register the transfer or
exchange of Notes of this Series, replace stolen, lost or mutilated Notes of
this Series, maintain paying agencies and hold monies for payment in trust, all
as set forth in the Indenture) if the Company deposits with the Trustee money,
U.S. Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and any premium and
interest on the Notes of this Series on the dates such payments are due in
accordance with the terms of the Notes of this Series.
If an Event of Default
shall occur and be continuing with respect to the Notes, the principal of and
interest on the Notes may be declared due and payable in the manner and with
the effect provided in the Indenture and, upon such declaration, the Trustee
shall demand the redemption of the Senior Note Mortgage Bonds to the extent
provided in the Indenture.
The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modifications of the rights and obligations of the Company and the rights of
the Noteholders under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in aggregate principal amount of
the outstanding Notes. Any such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and upon all future Holders of
this Note and of any Note issued upon the registration of transfer hereof or in
exchange therefor or in lieu thereof whether or not notation of such consent or
waiver is made upon this Note.
As set forth in and
subject to the provisions of the Indenture, no Holder of any Notes will have
any right to institute any proceeding with respect to the Indenture or for any
remedy thereunder unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to such Notes, the
Holders of a majority in aggregate principal amount of the outstanding Notes
affected by such Event of Default shall have made written request and offered
reasonable indemnity to the Trustee to institute such proceeding as Trustee and
the Trustee shall have failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the
B-8
enforcement of payment of
the principal of and any premium or interest on this Note on or after the
respective due dates expressed herein.
No reference herein to
the Indenture and to provisions of this Note or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Note at the times,
places and rates and the coin or currency prescribed in the Indenture.
As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Note is registrable in the Note register. Upon surrender of this Note for
registration or transfer at the corporate trust office of the Trustee or such
other office or agency as may be designated by the Company in the Borough of
Manhattan, the City and State of New York, or Chicago, Illinois, endorsed by or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note registrar, duly executed by the Holder hereof or the
attorney in fact of such Holder duly authorized in writing, one or more new
Notes of this Series of like tenor and of authorized denominations and for
the same aggregate principal amount will be issued to the designated transferee
or transferees.
The Notes of this Series are
issuable only in registered form, without coupons, in denominations of $1,000
and integral multiples of $1,000 thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Notes of this Series are
exchangeable for a like aggregate principal amount of Notes of this Series of
like tenor and of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall
be made for any such registration of transfer or exchange but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment
of this Note for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name this Note
is registered as the owner thereof for all purposes, whether or not this Note
is overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture and the
Notes shall be governed by, and construed in accordance with, the laws of the
State of New York without regard to conflicts of law principles thereof.
All terms used in this
Note that are defined in the Indenture shall have the meanings assigned to them
in the Indenture unless otherwise indicated herein.
B-9
ABBREVIATIONS
The following
abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to
applicable laws or regulations:
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TEN
COM — as tenants in common
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UNIF
GIFT
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MIN
ACT -
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Custodian
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(Cust)
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(Minor)
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TEN
ENT — as tenants by the
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entireties
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Under
Uniform Gifts to Minors
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JT
TEN — as joint tenants with right
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of
survivorship and not as tenants in
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common
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State
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Additional abbreviations may also be used
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though not in the above list.
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B-10
CERTIFICATE OF TRANSFER*
ILLINOIS POWER COMPANY
6.25% Senior Secured Notes due 2018
FOR
VALUE RECEIVED, the undersigned sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING
NUMBER OF ASSIGNEE
Name
and address of assignee must be printed or typewritten.
$
principal
amount of beneficial interest in the referenced Security of the Company and
does hereby irrevocably constitute and appoint
to
transfer the said beneficial interest in such Security, with full power of
substitution in the premises.
The
undersigned certifies that said beneficial interest in said Security is being
resold, pledged or otherwise transferred as follows:
(check
one)
o
to the Company;
o
to a Person whom
the undersigned reasonably believes is a qualified institutional buyer within
the meaning of Rule 144A under the Securities Act of 1933, as amended (the
“Securities Act”), purchasing for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or other transfer is being made in reliance on Rule 144A;
o
in an offshore
transaction in accordance with Rule 903 or 904 of Regulation S under the
Securities Act;
o
to an institution
that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act that is acquiring this Security for
investment purposes and not for distribution (attach a copy of an Institutional
Accredited Investor Certificate in the form annexed signed by an authorized
officer of the transferee);
o
as otherwise
permitted by the non-registration legend appearing on this Security; or
o
as otherwise agreed
by the Company, confirmed in writing to the Trustee, as follows: [describe]
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Dated:
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Signature:
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NOTICE: The signature to this assignment must
correspond
with the name as written upon the face of the within
instrument in every particular without alteration or
enlargement, or any change whatever.
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*
Include this form of Certificate of Transfer only in a
Private Note.
B-11
SIGNATURE GUARANTEE
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirement of the registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-12
[FORM OF INSTITUTIONAL ACCREDITED INVESTOR CERTIFICATE]*
[Transferor
Name and Address]
Ladies
and Gentlemen:
In
connection with our proposed purchase of 6.25% Senior Secured Notes due 2018
(the “Notes”) issued by Illinois Power Company d/b/a AmerenIP (the “Issuer”),
we confirm that:
1.
We have received a
copy of the Offering Memorandum (the “Offering Memorandum”) relating to the
Notes and such other information as we deem necessary in order to make our
investment decision. We acknowledge that
we have read and agree to the matters stated under the caption NOTICE TO INVESTORS
in such Offering Memorandum.
2.
We understand that
any subsequent transfer of the Notes is subject to certain restrictions and
conditions set forth in the indenture relating to the Notes (the “Indenture”)
and as set forth under NOTICE TO INVESTORS in the Offering Memorandum and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with such restrictions and conditions
and the Securities Act of 1933, as amended (the “Securities Act”).
3.
We understand that
the offer and sale of the Notes have not been registered under the Securities
Act, and that the Notes may not be offered or sold except as permitted in the
following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we sell any Notes, we will do so only (A) to the Issuer, (B) so
long as the Notes are eligible for resale pursuant to Rule 144A under the
Securities Act (“Rule 144A”), to a person whom we reasonably believe is a “qualified
institutional buyer” within the meaning of Rule 144A that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or other transfer is being made in
reliance on Rule 144A, (C) to an institutional “accredited investor”
(as defined below) that, prior to such transfer, furnishes to the Trustee (as
defined in the Indenture) a signed letter containing certain representations
and agreements relating to the restrictions on transfer of the Notes
(substantially in the form of this letter), (D) in an offshore transaction
in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant
to the exemption from registration provided by Rule 144 under the Securities
Act (if available), or (F) in accordance with another applicable exemption
from the registration requirements of, or in a transaction not subject to, the
Securities Act or pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing any of
the Notes from us a notice advising such purchaser that resales of the Notes
are restricted as stated herein.
*
Include this form only in a Private Note.
B-13
4.
We understand that,
on any proposed resale of any Notes, we will be required to furnish to the
Trustee and the Issuer such certification and other information as the Trustee
and the Issuer may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions.
We further understand that the Notes purchased by us will bear a legend
to the foregoing effect.
5.
We are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) and have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.
6.
We are acquiring
the Notes purchased by us for our own account or for one or more accounts (each
of which is an institutional “accredited investor”) as to each of which we
exercise sole investment discretion in each case for investment and not with a
view to, or for offer or sale in connection with, any distribution in violation
of the Securities Act.
You,
the Issuer and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
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Very
truly yours,
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By:
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Name:
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Title:
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B-14
Exhibit
4.7
Executed in 21
Counterparts, No. 21.
SUPPLEMENTAL INDENTURE
DATED APRIL 1, 2008
UNION
ELECTRIC
COMPANY
TO
THE BANK OF NEW
YORK,
AS TRUSTEE
(SUPPLEMENTAL TO THE INDENTURE OF MORTGAGE AND DEED OF TRUST DATED JUNE
15, 1937, AS AMENDED, EXECUTED BY UNION ELECTRIC COMPANY TO THE BANK OF NEW
YORK, AS TRUSTEE)
First Mortgage
Bonds, Senior Notes
Series LL
This instrument was prepared by Steven R. Sullivan, Esq., Senior
Vice President, General Counsel and Secretary of Union Electric Company, 1901
Chouteau Avenue, St. Louis, Missouri
63103, (314) 554-2098.
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WHEN RECORDED
MAIL TO:
Gerald L. Waters
Union Electric Company
1901 Chouteau Avenue
St. Louis, MO 61303
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SUPPLEMENTAL INDENTURE,
dated the 1st day of April, Two thousand and eight (2008) made by and between
UNION ELECTRIC COMPANY, a corporation organized and existing under the laws of
the State of Missouri (hereinafter called the “Company”), party of the first
part, and The Bank of New York (successor trustee to Bank of America, National
Association, formerly Boatmen’s Trust Company), a bank existing under the laws
of the State of New York (hereinafter called the “Trustee”), as Trustee under
the Indenture of Mortgage and Deed of Trust dated June 15, 1937,
hereinafter mentioned, party of the second part:
WHEREAS
, the Company has heretofore executed and
delivered to the Trustee its Indenture of Mortgage and Deed of Trust, dated June 15,
1937, as amended May 1, 1941, April 1, 1971, February 1, 1974, July 7,
1980, February 1, 2000 and August 15, 2002 (said Indenture of
Mortgage and Deed of Trust as so amended, being hereinafter referred to as the “Original
Indenture”), to secure the payment of the principal of and the interest (and
premium, if any) on all bonds at any time issued and outstanding thereunder,
and indentures supplemental thereto dated June 15, 1937, May 1, 1941,
March 17, 1942, April 13, 1945, April 27, 1945, October 1,
1945, April 11, 1947, April 13, 1949, September 13, 1950, December 1,
1950, September 20, 1951, May 1, 1952, March 1, 1954, May 1,
1955, August 31, 1955, April 1, 1956, July 1, 1956, August 1,
1957, February 1, 1958, March 1, 1958, November 5, 1958, March 16,
1959, June 24, 1959, December 11, 1959, August 17, 1960, September 1,
1960, October 24, 1960, June 30, 1961, July 1, 1961, August 9,
1962, September 30, 1963, November 1, 1963, March 12, 1965, April 1,
1965, April 14, 1966, May 1, 1966, February 17, 1967, March 1,
1967, February 19, 1968, March 15, 1968, August 21, 1968, April 7,
1969, May 1, 1969, September 12, 1969, October 1, 1969, March 26,
1970, April 1, 1970, June 12, 1970, January 1, 1971, April 1,
1971, September 15, 1971, December 3, 1973, February 1, 1974, April 25,
1974, February 3, 1975, March 1, 1975, June 11, 1975, May 12,
1976, August 16, 1976, April 26, 1977, October 15, 1977, November 7,
1977, December 1, 1977, August 1, 1978, October 12, 1979, November 1,
1979, July 7, 1980, August 1, 1980, August 20, 1980, February 1,
1981, October 8, 1981, August 27, 1982, September 1, 1982, December 15,
1982, March 1, 1983, June 21, 1984, December 12, 1984, June 11,
1985, March 1, 1986, May 1, 1986, May 1, 1990, December 1,
1991, December 4, 1991, January 1, 1992, September 30, 1992, October 1,
1992, December 1, 1992, February 1, 1993, February 18, 1993, May 1,
1993, August 1, 1993, October 1, 1993, January 1, 1994, February 1,
2000, August 15, 2002, March 5, 2003, April 1, 2003, July 15,
2003, October 1, 2003, February 1, 2004 (eight separate indentures
supplemental thereto), May 1, 2004, September 1, 2004, January 1,
2005, July 1, 2005, December 1, 2005 and June 1, 2007,
respectively, have heretofore been entered into between the Company and the
Trustee; and
WHEREAS
, Bonds have heretofore been issued by
the Company under the Original Indenture as follows:
(1) $80,000,000 principal amount of First
Mortgage and Collateral Trust Bonds, 3 3/4% Series due 1962, all of which
have been redeemed prior to the date of the execution hereof;
(2) $90,000,000 principal amount of First
Mortgage and Collateral Trust Bonds, 3 3/8% Series due 1971, which are
described in the Supplemental Indenture dated May 1, 1941 (hereinafter
called the “Supplemental Indenture of May 1, 1941”), all of which have
been paid at maturity prior to the date of the execution hereof;
(3) $13,000,000 principal amount of First
Mortgage and Collateral Trust Bonds, 2 3/4% Series due 1975 (herein called
the “Bonds of 1975 Series”), which are described in the Supplemental Indenture
dated October 1, 1945 (hereinafter called the “Supplemental Indenture of October 1,
1945”), all of which have been paid at maturity prior to the date of the
execution hereof;
(4) $25,000,000 principal amount of First
Mortgage and Collateral Trust Bonds, 2 7/8% Series due 1980 (herein called
the “Bonds of 1980 Series”), which are described in the Supplemental Indenture
dated December 1, 1950 (hereinafter called the “Supplemental Indenture of December 1,
1950”), all of which have been paid at maturity prior to the date of the
execution hereof;
(5) $30,000,000 principal amount of First
Mortgage and Collateral Trust Bonds, 3 1/4% Series due 1982 (herein called
the “Bonds of 1982 Series”), which are described in the Supplemental Indenture
dated May 1, 1952 (hereinafter called the “Supplemental Indenture of May 1,
1952”), all of which have been paid at maturity prior to the date of the
execution hereof;
(6) $40,000,000 principal amount of First
Mortgage Bonds, 3 3/4% Series due 1986 (herein called the “Bonds of 1986
Series”), which are described in the Supplemental Indenture dated July 1,
1956 (hereinafter called the “Supplemental Indenture of July 1, 1956”),
all of which have been paid at maturity prior to the date of the execution
hereof;
(7) $35,000,000 principal amount of First
Mortgage Bonds, 4 3/8% Series due 1988 (herein called the “Bonds of 1988
Series”), which are described in the Supplemental Indenture dated March 1,
1958 (hereinafter called the “Supplemental Indenture of March 1, 1958”),
all of which have been paid at maturity prior to the date of the execution
hereof;
(8) $50,000,000 principal amount of First
Mortgage Bonds, 4 3/4% Series due 1990 (herein called the “Bonds of 1990
Series”), which are described in the Supplemental Indenture dated September 1,
1960 (hereinafter called the “Supplemental Indenture of September 1, 1960”),
all of which have been paid at maturity prior to the date of the execution
hereof;
(9) $30,000,000 principal amount of First
Mortgage Bonds, 4 3/4% Series due 1991 (herein called the “Bonds of 1991
Series”), which are described in the Supplemental Indenture dated July 1,
1961 (hereinafter called the “Supplemental Indenture of July 1, 1961”),
all of which have been paid at maturity prior to the date of the execution
hereof;
(10) $30,000,000 principal amount of First
Mortgage Bonds, 4 1/2% Series due 1993 (herein called the “Bonds of 1993
Series”), which are described in the Supplemental Indenture dated November 1,
1963 (hereinafter called the “Supplemental Indenture of November 1, 1963”),
all of which have been redeemed prior to the date of the execution hereof;
(11) $35,000,000 principal amount of First
Mortgage Bonds, 4 1/2% Series due 1995 (herein called the “Bonds of 1995
Series”), which are described in the Supplemental Indenture dated April 1,
1965 (hereinafter called the “Supplemental Indenture of April 1, 1965”),
all of which have been paid at maturity prior to the date of the execution
hereof;
2
(12) $30,000,000 principal amount of First
Mortgage Bonds, 5 1/2% Series due 1996 (herein called the “Bonds of 1996
Series”), which are described in the Supplemental Indenture dated May 1,
1966 (hereinafter called the “Supplemental Indenture of May 1, 1966”), all
of which have been paid at maturity prior to the date of the execution hereof;
(13) $40,000,000 principal amount of First
Mortgage Bonds, 5 1/2% Series due 1997 (herein called the “Bonds of 1997
Series”), which are described in the Supplemental Indenture dated March 1,
1967 (hereinafter called the “Supplemental Indenture of March 1, 1967”),
all of which have been paid at maturity prior to the date of the execution
hereof;
(14) $50,000,000 principal amount of First
Mortgage Bonds, 7% Series due 1998 (herein called the “Bonds of 1998
Series”), which are described in the Supplemental Indenture dated March 15,
1968 (hereinafter called the “Supplemental Indenture of March 15, 1968”),
all of which have been redeemed prior to the date of the execution hereof;
(15) $35,000,000 principal amount of First
Mortgage Bonds, 7 3/8% Series due 1999 (herein called the “Bonds of May 1999
Series”), which are described in the Supplemental Indenture dated May 1,
1969 (hereinafter called the “Supplemental Indenture of May 1, 1969”), all
of which have been redeemed prior to the date of the execution hereof;
(16) $40,000,000 principal amount of First
Mortgage Bonds, 8 1/4% Series due 1999 (herein called the “Bonds of October 1999
Series”), which are described in the Supplemental Indenture dated October 1,
1969 (hereinafter called the “Supplemental Indenture of October 1, 1969”),
all of which have been redeemed prior to the date of the execution hereof;
(17) $100,000,000 principal amount of First
Mortgage Bonds, 9.95% Series due 1999 (herein called the “Bonds of November 1999
Series”), which are described in the Supplemental Indenture dated November 1,
1979 (hereinafter called the “Supplemental Indenture of November 1, 1979”),
all of which have been redeemed prior to the date of the execution hereof;
(18) $60,000,000 principal amount of First
Mortgage Bonds, 9% Series due 2000 (herein called the “Bonds of 2000
Series”), which are described in the Supplemental Indenture dated April 1,
1970 (hereinafter called the “Supplemental Indenture of April 1, 1970”),
all of which have been redeemed prior to the date of the execution hereof;
(19) $50,000,000 principal amount of First
Mortgage Bonds, 7 7/8% Series due 2001 (herein called the “Bonds of January 2001
Series”), which are described in the Supplemental Indenture dated January 1,
1971 (hereinafter called the “Supplemental Indenture of January 1, 1971”),
all of which have been redeemed prior to the date of the execution hereof;
(20) $50,000,000 principal amount of First
Mortgage Bonds, 7 5/8% Series due 2001 (herein called the “Bonds of April 2001
Series”), which are described in the Supplemental Indenture dated April 1,
1971 (hereinafter called the “Supplemental
3
Indenture of April 1,
1971”), all of which have been redeemed prior to the date of the execution hereof;
(21) $60,000,000 principal amount of First
Mortgage Bonds, 8 1/8% Series due 2001 (herein called the “Bonds of October 2001
Series”), which are described in the Supplemental Indenture dated September 15,
1971 (hereinafter called the “Supplemental Indenture of September 15, 1971”),
all of which have been redeemed prior to the date of the execution hereof;
(22) $70,000,000 principal amount of First
Mortgage Bonds, 8 3/8% Series due 2004 (herein called the “Bonds of 2004
Series”), which are described in the Supplemental Indenture dated February 1,
1974 (hereinafter called the “Supplemental Indenture of February 1, 1974”),
all of which have been redeemed prior to the date of the execution hereof;
(23) $70,000,000 principal amount of First
Mortgage Bonds, 10 1/2% Series due 2005 (herein called the “Bonds of 2005
Series”), which are described in the Supplemental Indenture dated March 1,
1975 (hereinafter called the “Supplemental Indenture of March 1, 1975”),
all of which have been redeemed prior to the date of the execution hereof;
(24) $70,000,000 principal amount of First
Mortgage Bonds, 8 7/8% Series due 2006 (herein called the “Bonds of 2006
Series”), which are described in the Supplemental Indenture dated August 16,
1976 (hereinafter called the “Supplemental Indenture of August 16, 1976”),
all of which have been redeemed prior to the date of the execution hereof;
(25) $27,085,000 principal amount of First
Mortgage Bonds, 5.80% Environmental Improvement Series 1977, which are
described in the Supplemental Indenture dated October 15, 1977
(hereinafter called the “Supplemental Indenture of October 15, 1977”), all
of which have been redeemed prior to the date of the execution hereof;
(26) $60,000,000 principal amount of First
Mortgage Bonds, 8 5/8% Series due 2007 (herein called the “Bonds of 2007
Series”), which are described in the Supplemental Indenture dated December 1,
1977 (hereinafter called the “Supplemental Indenture of December 1, 1977”),
all of which have been redeemed prior to the date of the execution hereof;
(27) $55,000,000 principal amount of First
Mortgage Bonds, 9.35% Series due 2008 (herein called the “Bonds of 2008
Series”), which are described in the Supplemental Indenture dated August 1,
1978 (hereinafter called the “Supplemental Indenture of August 1, 1978”),
all of which have been redeemed prior to the date of the execution hereof;
(28) $60,000,000 principal amount of First
Mortgage Bonds, Environmental Improvement Series 1980, which are described
in the Supplemental Indenture dated August 1, 1980 (hereinafter called the
“Supplemental Indenture of August 1, 1980”), all of which have been
redeemed prior to the date of the execution hereof;
4
(29) $150,000,000 principal amount of First Mortgage
Bonds, 15 3/8% Series due 1991 (herein called the “Bonds of February 1991
Series”), which are described in the Supplemental Indenture dated February 1,
1981 (hereinafter called the “Supplemental Indenture of February 1, 1981”),
all of which have been redeemed prior to the date of the execution hereof;
(30) $125,000,000 principal amount of First
Mortgage Bonds, 15% Series due 1992 (herein called the “Bonds of 1992
Series”), which are described in the Supplemental Indenture dated September 1,
1982 (hereinafter called the “Supplemental Indenture of September 1, 1982”),
all of which have been redeemed prior to the date of the execution hereof;
(31) $100,000,000 principal amount of First
Mortgage Bonds, 13% Series due 2013 (herein called the “Bonds of 2013
Series”), which are described in the Supplemental Indenture dated March 1,
1983 (hereinafter called the “Supplemental Indenture of March 1, 1983”),
all of which have been redeemed prior to the date of the execution hereof;
(32) $100,000,000 principal amount of First
Mortgage Bonds, 9 3/8% Series due 2016 (herein called the “Bonds of 2016
Series”), which are described in the Supplemental Indenture dated March 1,
1986 (hereinafter called the “Supplemental Indenture of March 1, 1986”),
all of which have been redeemed prior to the date of the execution hereof;
(33) $100,000,000 principal amount of First
Mortgage Bonds, 8 7/8% Series due 1996 (herein called the “Bonds of 1996
Series”), which are described in the Supplemental Indenture dated May 1,
1986 (hereinafter called the “Supplemental Indenture of May 1, 1986”), all
of which have been redeemed prior to the date of the execution hereof;
(34) $60,000,000 principal amount of First
Mortgage Bonds, Environmental Improvement Series 1990A, which are described
in the Supplemental Indenture dated May 1, 1990 (hereinafter called the “Supplemental
Indenture of May 1, 1990”), all of which have been redeemed prior to the
date of the execution hereof;
(35) $125,000,000 principal amount of First
Mortgage Bonds, 8 3/4% Series due 2021 (herein called the “Bonds of 2021
Series”), which are described in the Supplemental Indenture dated December 1,
1991 (hereinafter called the “Supplemental Indenture of December 1, 1991”),
all of which have been redeemed prior to the date of the execution hereof;
(36) $75,000,000 principal amount of First
Mortgage Bonds, 8.33% Series due 2002 (herein called the “Bonds of 2002
Series”), which are described in the Supplemental Indenture dated December 4,
1991 (hereinafter called the “Supplemental Indenture of December 4, 1991”),
all of which have been paid at maturity prior to the date of the execution
hereof;
(37) $100,000,000 principal amount of First
Mortgage Bonds, 7.65% Series due 2003 (herein called the “Bonds of 2003
Series”), which are described in the Supplemental Indenture dated January 1,
1992 (hereinafter called the “Supplemental
5
Indenture of January 1,
1992”), all of which have been paid at maturity prior to the date of the execution
hereof;
(38) $204,000,000 aggregate principal amount
of First Mortgage Bonds, consisting of $100,000,000 principal amount of 6 3/4% Series due
1999 and $104,000,000 principal amount of 8 1/4% Series due 2022 (herein
called the “Bonds of 1999 Series” and “Bonds of 2022 Series”, respectively),
which are described in the Supplemental Indenture dated October 1, 1992
(hereinafter called the “Supplemental Indenture of October 1, 1992”), of
which the Bonds of 1999 Series have been paid at maturity prior to the
date of execution hereof and the Bonds of 2022 Series have been redeemed
prior to the date of the execution hereof;
(39) $170,000,000 aggregate principal amount
of First Mortgage Bonds, consisting of $85,000,000 principal amount of 7 3/8% Series due
2004 and $85,000,000 principal amount of 8% Series due 2022 (herein called
the “Bonds of December 2004 Series” and “Bonds of December 2022
Series”, respectively, which are described in the Supplemental Indenture dated December 1,
1992, (hereinafter called the “Supplemental Indenture of December 1, 1992”),
of which the Bonds of December 2022 Series have been redeemed prior
to the date of the execution hereof and
the Bonds of December 2004 Series have been paid at maturity prior to
the date of the execution hereof;
(40) $188,000,000 principal amount of First
Mortgage Bonds, 6 7/8% Series due 2004 (herein called the “Bonds of August 2004
Series”), which are described in the Supplemental Indenture dated February 1,
1993 (hereinafter called the “Supplemental Indenture of February 1, 1993”),
all of which have been paid at maturity prior to the date of the execution
hereof;
(41) $148,000,000 principal amount of First
Mortgage Bonds, 6 3/4% Series due 2008 (herein called the “Bonds of May 2008
Series”), which are described in the Supplemental Indenture dated May 1,
1993 (hereinafter called the “Supplemental Indenture of May 1, 1993”), all
of which are outstanding at the date of the execution hereof;
(42) $75,000,000 principal amount of First
Mortgage Bonds, 7.15% Series due 2023 (herein called the “Bonds of 2023
Series”), which are described in the Supplemental Indenture dated August 1,
1993 (hereinafter called the “Supplemental Indenture of August 1, 1993”),
all of which have been redeemed prior to the date of the execution hereof;
(43) $44,000,000 principal amount of First
Mortgage Bonds, Environmental Improvement Series 1993 (herein called the “Bonds
of 2028 Series”), which are described in the Supplemental Indenture dated October 1,
1993 (hereinafter called the “Supplemental Indenture of October 1, 1993”),
all of which are outstanding at the date of the execution hereof;
(44) $100,000,000 principal amount of First
Mortgage Bonds, 7% Series due 2024 (herein called the “Bonds of 2024
Series”), which are described in the Supplemental Indenture dated January 1,
1994 (hereinafter called the “Supplemental Indenture of January 1, 1994”),
all of which have been redeemed prior to the date of the execution hereof;
6
(45) $173,000,000 principal amount of First
Mortgage Bonds, Senior Notes Series AA (herein called the “Bonds of 2012
Series”), which are described in the Supplemental Indenture dated August 15,
2002 (hereinafter called the “Supplemental Indenture of August 15, 2002”),
all of which are outstanding at the date of the execution hereof;
(46) $184,000,000 principal amount of First
Mortgage Bonds, Senior Notes Series BB (herein called the “Bonds of 2034
Series”), which are described in the Supplemental Indenture dated March 5,
2003 (hereinafter called the “Supplemental Indenture of March 5, 2003”),
all of which are outstanding at the date of the execution hereof;
(47) $114,000,000 principal amount of First
Mortgage Bonds, Senior Notes Series CC (herein called the “Bonds of 2015
Series”), which are described in the Supplemental Indenture dated April 1,
2003 (hereinafter called the “Supplemental Indenture of April 1, 2003”),
all of which are outstanding at the date of the execution hereof;
(48) $200,000,000 principal amount of First
Mortgage Bonds, Senior Notes Series DD (herein called the “Bonds of 2018
Series”), which are described in the Supplemental Indenture dated July 15,
2003 (hereinafter called the “Supplemental Indenture of July 15, 2003”),
all of which are outstanding at the date of the execution hereof;
(49) $200,000,000 principal amount of First
Mortgage Bonds, Senior Notes Series EE (herein called the “Bonds of 2013
Series”), which are described in the Supplemental Indenture dated October 1,
2003 (hereinafter called the “Supplemental Indenture of October 1, 2003”),
all of which are outstanding at the date of the execution hereof;
(50) $60,000,000 principal amount of First
Mortgage Bonds, Environmental Improvement Series 2004A, which are
described in the Supplemental Indenture dated February 1, 2004
(hereinafter called the “Series 2004A Supplemental Indenture of February 1,
2004”), all of which are outstanding at the date of the execution hereof;
(51) $50,000,000 principal amount of First
Mortgage Bonds, Environmental Improvement Series 2004B, which are
described in the Supplemental Indenture dated February 1, 2004
(hereinafter called the “Series 2004B Supplemental Indenture of February 1,
2004”), all of which are outstanding at the date of the execution hereof;
(52) $50,000,000 principal amount of First
Mortgage Bonds, Environmental Improvement Series 2004C, which are
described in the Supplemental Indenture dated February 1, 2004
(hereinafter called the “Series 2004C Supplemental Indenture of February 1,
2004”), all of which are outstanding at the date of the execution hereof;
(53) $63,000,000 principal amount of First
Mortgage Bonds, Environmental Improvement Series 2004D, which are
described in the Supplemental Indenture dated February 1, 2004
(hereinafter called the “Series 2004D Supplemental Indenture of February 1,
2004”), all of which are outstanding at the date of the execution hereof;
7
(54) $63,500,000 principal amount of First
Mortgage Bonds, Environmental Improvement Series 2004E, which are
described in the Supplemental Indenture dated February 1, 2004
(hereinafter called the “Series 2004E Supplemental Indenture of February 1,
2004”), all of which are outstanding at the date of the execution hereof;
(55) $60,000,000 principal amount of First
Mortgage Bonds, Environmental Improvement Series 2004F, which are
described in the Supplemental Indenture dated February 1, 2004
(hereinafter called the “Series 2004F Supplemental Indenture of February 1,
2004”), all of which are outstanding at the date of the execution hereof;
(56) $42,585,000 principal amount of First
Mortgage Bonds, Environmental Improvement Series 2004G, which are
described in the Supplemental Indenture dated February 1, 2004
(hereinafter called the “Series 2004G Supplemental Indenture of February 1,
2004”), all of which are outstanding at the date of the execution hereof;
(57) $47,500,000 principal amount of First
Mortgage Bonds, Environmental Improvement Series 2004H, which are
described in the Supplemental Indenture dated February 1, 2004
(hereinafter called the “Series 2004H Supplemental Indenture of February 1,
2004”), all of which are outstanding at the date of the execution hereof;
(58) $104,000,000 principal amount of First
Mortgage Bonds, Senior Notes Series FF (herein called the “Bonds of 2014
Series”), which are described in the Supplemental Indenture dated May 1,
2004 (hereinafter called the “Supplemental Indenture of May 1, 2004”), all
of which are outstanding at the date of the execution hereof;
(59) $300,000,000 principal amount of First
Mortgage Bonds, Senior Notes Series GG (herein called the “Bonds of 2019
Series”), which are described in the Supplemental Indenture dated September 1,
2004 (hereinafter called the “Supplemental Indenture of September 1, 2004”),
all of which are outstanding at the date of the execution hereof;
(60) $85,000,000 principal amount of First
Mortgage Bonds, Senior Notes Series HH (herein called the “Bonds of 2020
Series”), which are described in the Supplemental Indenture dated January 1,
2005 (hereinafter called the “Supplemental Indenture of January 1, 2005”),
all of which are outstanding at the date of the execution hereof;
(61) $300,000,000 principal amount of First
Mortgage Bonds, Senior Notes Series II (herein called the “Bonds of 2037
Series”), which are described in the Supplemental Indenture dated July 1,
2005 (hereinafter called the “Supplemental Indenture of July 1, 2005”),
all of which are outstanding at the date of the execution hereof;
(62) $260,000,000 principal amount of First
Mortgage Bonds, Senior Notes Series JJ (herein called the “Bonds of 2016
Series”), which are described in the Supplemental Indenture dated December 1,
2005 (hereinafter called the “Supplemental Indenture of December 1, 2005”),
all of which are outstanding at the date of the execution hereof; and
8
(63) $425,000,000 principal amount of First Mortgage Bonds, Senior Notes, Series KK
(herein called the “Bonds of 2017 Series”), which are described in the
Supplemental Indenture dated June 1, 2007 (hereinafter called the “Supplemental
Indenture of June 1, 2007”), all of which are outstanding at the date of
the execution hereof;
and
WHEREAS
, the Company on August 31, 1955
acquired all of the properties of Union Electric Power Company, the Subsidiary
as defined in Article I of the Original Indenture, upon the dissolution of
the Subsidiary; the Company, by Supplemental Indenture dated August 31,
1955, conveyed all of the properties so acquired (other than property of the
character defined as excepted property in the granting clauses of the Original
Indenture) to the Trustee upon the terms and trusts in the Original Indenture
and the indentures supplemental thereto set forth for the equal and
proportionate benefit and security of all present and future holders of the
Bonds and coupons issued and to be issued thereunder, all the shares of stock
of the Subsidiary were released from the lien of the Original Indenture; and
the Company became entitled to change the general designation of the Bonds so
as to omit the words “and Collateral Trust”; and
WHEREAS
, the Articles of Incorporation of the
Company were duly amended on April 23, 1956, to change its corporate name
from “Union Electric Company of Missouri” to “Union Electric Company”; and
WHEREAS
, the Articles of Agreement of the
Trustee were duly amended effective on January 4, 1982 to change its
corporate name from “St. Louis Union Trust Company” to “Centerre Trust Company
of St. Louis”, and further amended on December 9, 1988, to change its
corporate name from “Centerre Trust Company of St. Louis” to “Boatmen’s Trust
Company”; and
WHEREAS
, that on March 13, 1998, Boatmen’s
Trust Company merged into NationsBank, National Association and effective July 5,
1999, changed its name to Bank of America, National Association; and
WHEREAS
, that on February 1, 2000, The Bank
of New York, as transferee of the corporate trust business of Bank of America,
National Association (formerly known as Boatmen’s Trust Company), Trustee under
the Original Indenture, became successor Trustee under the Original Indenture;
and
WHEREAS
, the Company is entitled at this time to
have authenticated and delivered additional Bonds on the basis of “property
additions” upon compliance with and pursuant to the provisions of Section 4
of Article III of the Original Indenture; and
WHEREAS
, the Company has entered into an
Indenture dated as of August 15, 2002 (the “Senior Note Indenture”) with
The Bank of New York, as trustee (the “Senior Note Trustee”) providing for the
issuance from time to time of senior notes thereunder; and
WHEREAS
, the Company desires by this
Supplemental Indenture to provide for the creation of, and the issuance to the
Senior Note Trustee of, a new series of Bonds under the Original Indenture as
security for $250,000,000 aggregate principal amount of the Company’s 6.00%
Senior Secured Notes due 2018 (the “Senior Notes”) to be issued under the
Senior Note
9
Indenture, to have
the designation provided in Article I, Section 1 hereof (herein
called the “New Bonds”), and the Original Indenture provides that certain terms
and provisions, as determined by the Board of Directors of the Company, of the
Bonds of any particular series may be expressed in and provided by the
execution of an appropriate supplemental indenture; and
WHEREAS
, the Original Indenture provides that
the Company and the Trustee may enter into indentures supplemental to the
Original Indenture specifically to convey, transfer and assign to the Trustee
and to subject to the lien of the Original Indenture additional properties
acquired by the Company; and
WHEREAS
, the Company, in the exercise of the
powers and authority conferred upon and reserved to it under the provisions of
the Original Indenture and pursuant to appropriate resolutions of the Board of
Directors, has duly resolved and determined to make, execute and deliver to the
Trustee a Supplemental Indenture in the form hereof for the purposes herein
provided; and
WHEREAS
, all conditions and requirements
necessary to make this Supplemental Indenture a valid, binding and legal
instrument have been done, performed and fulfilled and the execution and
delivery hereof have been in all respects duly authorized;
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of
the premises and of the mutual covenants herein contained and of the acceptance
of this trust by the Trustee and of the sum of One Dollar duly paid by the
Trustee to the Company at or before the time of the execution of this
Supplemental Indenture, and of other valuable considerations, the receipt
whereof is hereby acknowledged, and in order further to secure the payment of
the principal of and interest (and premium, if any) on all Bonds at any time
issued and outstanding under the Original Indenture, according to their tenor
and effect, and to secure the Senior Notes, the Company has executed and
delivered this Supplemental Indenture and has granted, bargained, sold,
warranted, aliened, remised, released, conveyed, assigned, transferred,
mortgaged, pledged, set over and confirmed and by these presents does grant,
bargain, sell, warrant, alien, remise, release, convey, assign, transfer,
mortgage, pledge, set over and confirm unto The Bank of New York, as Trustee,
and to its successors in trust under the Original Indenture forever, all and singular
the following described properties (in addition to all other properties
heretofore subjected to the lien of the Original Indenture and not heretofore
released from the lien thereof) - that is to say:
FIRST.
ALL power houses, plants,
buildings and other structures, dams, dam sites, substations, heating plants,
gas works, holders and tanks, together with all and singular the electric,
heating, gas and mechanical appliances appurtenant thereto of every nature
whatsoever, now owned by the Company, including all and singular the machinery,
engines, boilers, furnaces, generators, dynamos, turbines and motors, and all
and every character of mechanical appliance for generating or producing
electricity, steam, gas and other agencies for light, heat, cold, or power or
other purposes, and all transmission and distribution systems used for the
transmission and distribution of electricity, steam, gas and other agencies for
light, heat, cold or power or any other purpose whatsoever, whether underground
or overhead, surface or otherwise, now owned by the Company, including all
poles, towers, posts, wires, cables, conduits, manholes, mains, pipes, tubes,
drains, furnaces, switchboards, transformers, conductors, insulators, supports,
10
meters, lamps, fuses,
junction boxes, regulator stations, and other electric, steam and gas fixtures
and apparatus; all of the aforementioned property being located in the City of
St. Louis, the counties of Adair, Audrain, Benton, Bollinger, Boone, Butler,
Caldwell, Callaway, Camden, Cape Girardeau, Clark, Clay, Clinton, Cole, Cooper,
Crawford, Daviess, Dunklin, Franklin, Gasconade, Howard, Iron, Jefferson, Knox,
Lewis, Lincoln, Livingston, Macon, Madison, Maries, Marion, Miller, Mississippi,
Moniteau, Montgomery, Morgan, New Madrid, Osage, Pemiscot, Perry, Pettis,
Phelps, Pike, Pulaski, Ralls, Randolph, Ray, Reynolds, Ripley, St. Charles, St.
Francois, Ste. Genevieve, St. Louis, Saline, Schuyler, Scott, Stoddard, Warren,
Washington, and Wayne, Missouri, the counties of Clay, Hancock, Henderson,
Madison, Marion, Perry, Piatt and St. Clair, Illinois, and the counties of Des
Moines, Henry, Johnson, Lee, and Washington, Iowa, upon real estate owned by
the Company, or occupied by it under rights to so occupy, which real estate is
described in, or added through the provisions of, the Indenture of Mortgage and
Deed of Trust dated June 15, 1937, the Supplemental Indentures dated May 1,
1941, March 17, 1942, April 13, 1945, April 27, 1945, October 1,
1945, April 11, 1947, April 13, 1949, September 13, 1950, December 1,
1950, September 20, 1951, May 1, 1952, March 1, 1954, May 1,
1955, August 31, 1955, April 1, 1956, July 1, 1956, August 1,
1957, February 1, 1958, March 1, 1958, November 5, 1958, March 16,
1959, June 24, 1959, December 11, 1959, August 17, 1960, September 1,
1960, October 24, 1960, June 30, 1961, July 1, 1961, August 9,
1962, September 30, 1963, November 1, 1963, March 12, 1965, April 1,
1965, April 14, 1966, May 1, 1966, February 17, 1967, March 1,
1967, February 19, 1968, March 15, 1968, August 21, 1968, April 7,
1969, May 1, 1969, September 12, 1969, October 1, 1969, March 26,
1970, April 1, 1970, June 12, 1970, January 1, 1971, April 1,
1971, September 15, 1971, December 3, 1973, February 1, 1974, April 25,
1974, February 3, 1975, March 1, 1975, June 11, 1975, May 12,
1976, August 16, 1976, April 26, 1977, October 15, 1977, November 7,
1977, December 1, 1977, August 1, 1978, October 12, 1979, November 1,
1979, July 7, 1980, August 1, 1980, August 20, 1980, February 1,
1981, October 8, 1981, August 27, 1982, September 1, 1982, December 15,
1982, March 1, 1983, June 21, 1984, December 12, 1984, June 11,
1985, March 1, 1986, May 1, 1986, May 1, 1990, December 1,
1991, December 4, 1991, January 1, 1992, September 30, 1992, October 1,
1992, December 1, 1992, February 1, 1993, February 18, 1993, May 1,
1993, August 1, 1993, October 1, 1993, January 1, 1994, February 1,
2000, August 15, 2002, March 5, 2003, April 1, 2003, July 15,
2003, October 1, 2003, February 1, 2004 (eight separate supplemental
indentures), May 1, 2004, September 1, 2004, January 1, 2005, July 1,
2005, December 1, 2005, June 1, 2007 and this Supplemental Indenture,
or attached to or connected with such real estate or transmission or
distribution systems of the Company leading from or into such real estate.
SECOND.
ALSO,
(except as in the Original Indenture
expressly excepted) all franchises and all permits, ordinances, easements,
privileges, immunities and licenses, all rights to construct, maintain and
operate overhead, surface and underground systems for the distribution and
transmission of electricity, steam, gas or other agencies for the supply to
itself or others of light, heat, cold or power, all rights-of-way, all waters,
water rights and flowage rights and all grants and consents, now owned or,
subject to the provisions of Article XII of the Original Indenture, which
it may hereafter acquire.
ALSO
, (except as in the Original Indenture
expressly excepted) all inventions, patent rights and licenses of every kind
now owned by the Company or, subject to the provisions of Article XII of
the Original Indenture, which it may hereafter acquire.
11
THIRD.
ALSO
, subject to the provisions of Article XII
of the Original Indenture, all other property, real, personal and mixed (except
as therein or herein expressly excepted) of every nature and kind and
wheresoever situated now or hereafter possessed by or belonging to the Company,
or to which it is now, or may at any time hereafter be, in any manner entitled
at law or in equity.
TO HAVE
AND TO HOLD
all
said properties, real, personal and mixed, mortgaged, pledged and conveyed by
the Company as aforesaid, or intended so to be, unto the Trustee and its
successors and assigns forever;
SUBJECT,
HOWEVER,
to the
exceptions and reservations and matters hereinabove recited, to existing
leases, to existing liens upon rights of way for transmission or distribution
line purposes, as defined in Article I of the Original Indenture, and any
extensions thereof, and subject to existing easements for streets, alleys,
highways, rights-of-way and railroad purposes over, upon and across certain of
the property hereinbefore described, and subject also to all the terms,
conditions, agreements, covenants, exceptions and reservations expressed or
provided in the deeds or other instruments respectively under and by virtue of
which the Company acquired the properties hereinabove described, and to
undetermined liens and charges, if any, incidental to construction or other
existing permitted liens as defined in Article I of the Original
Indenture;
IN TRUST,
NEVERTHELESS,
upon the terms and trusts in the Original Indenture and the indentures
supplemental thereto, including this Supplemental Indenture, set forth, for the
equal and proportionate benefit and security of all present and future holders
of the Bonds and coupons issued and to be issued thereunder, or any of them,
without preference of any of said Bonds and coupons of any particular series
over the Bonds and coupons of any other series, by reason of priority in the
time of the issue, sale or negotiation thereof, or by reason of the purpose of
issue or otherwise howsoever, except as otherwise provided in Section 2 of
Article IV of the Original Indenture.
AND IT IS
HEREBY COVENANTED, DECLARED AND AGREED,
by and between the parties hereto, for the benefit of
those who shall hold the Bonds and coupons, or any of them to be issued under
the Original Indenture, as follows:
ARTICLE I
DESCRIPTION OF THE NEW BONDS
Section 1. There is hereby created a new
series of Bonds to be executed, authenticated and delivered under and secured
by the Original Indenture which shall, subject to the provisions of Section 1
of Article II of the Original Indenture, be designated as “First Mortgage
Bonds, Senior Notes Series LL” (the “New Bonds”) of the Company. The New Bonds shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to all of the terms, conditions and covenants of, the
Original Indenture and shall be issued to, and registered in the name of, the
Senior Note Trustee under the Senior Note Indenture to secure any and all
obligations of the Company under the Senior Notes and any other series of
senior notes from time to time outstanding under the Senior Note Indenture.
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The New Bonds shall
mature on April 1, 2018, and shall bear interest at the rate per annum set
forth in the form of the New Bond contained in Section 3 of this Article I,
payable semi-annually on the 1st day of April and the 1st day of October in
each year, commencing on October 1, 2008, and at maturity. The New Bonds shall be payable as to
principal and interest in any coin or currency of the United States of America
which at the time of payment is legal tender for public and private debts, and
shall be payable, in immediately available funds, at the office of the Senior
Note Trustee.
Section 2. The New Bonds shall not be
assignable or transferable except as permitted or required by Section 4.04
of the Senior Note Indenture. Any such
transfer shall be effected at the principal office or place of business of the
Trustee under the Original Indenture.
The New Bonds are exchangeable for the New Bonds of other denominations,
as in the Original Indenture provided, except that payment of a service charge
therefor will not be required by the Company.
Notwithstanding the
provisions of Section 6 of Article II of the Original Indenture, the
New Bonds shall be dated the date of authentication and shall bear interest
from the interest payment date to which interest on the New Bonds has been paid
next preceding the date thereof, unless such date is an interest payment date
to which interest has been paid, in which case they shall bear interest from
the date thereof, or unless the date thereof is prior to October 1, 2008,
in which case they shall bear interest from April 8, 2008; provided,
however, that, subject to the provisions of this Section with respect to
failure by the Company to pay any interest on an interest payment date, the
holder of any New Bond dated after a record date (as hereinafter defined) for
the payment of interest and prior to the date of payment of such interest shall
not be entitled to payment of such interest and shall have no claim against the
Company with respect thereto.
The person in whose name
any New Bond is registered at the close of business on any record date with
respect to any interest payment date shall be entitled to receive the interest
payable on such interest payment date notwithstanding the cancellation of such
Bond upon any transfer or exchange thereof subsequent to the record date and
prior to such interest payment date, except if and to the extent the Company
shall default in the payment of the interest due on such interest payment date,
in which case such defaulted interest shall be paid to the person in whose name
such Bond is registered on the date of payment of such defaulted interest or on
a subsequent record date for such payment if one shall have been established as
hereinafter provided. A subsequent
record date may be established by the Company by notice mailed to the holders
of the New Bonds not less than ten days preceding such record date, which
record date shall be not more than thirty days prior to the subsequent interest
payment date. The term “record date” as
used in this Section with respect to any regular interest payment date
shall mean the March 15 or September 15, as the case may be, next
preceding such interest payment date, or, if such March 15 or September 15
shall be a legal holiday in the State of New York or in the State of Missouri
or a day on which banking institutions in the Borough of Manhattan, The City of
New York, or the City of St. Louis, Missouri, are authorized by law to close,
the next preceding day which shall not be a legal holiday or a day on which
such institutions are so authorized to close.
Upon
any payment of the principal of, premium, if any, and interest on, all or any
portion of the Senior Notes, whether at maturity or prior to maturity by
redemption or otherwise or upon provision for the payment thereof having been
made in accordance with Section 5.01(a) of the Senior Note Indenture,
the New Bonds in a principal amount equal to the principal amount of such
Senior Notes shall, to the extent of such payment of principal, premium, if
any, and interest, be
13
deemed
paid and the obligation of the Company thereunder to make such payment shall be
discharged to such extent and, in the case of the payment of principal (and
premium, if any), such New Bonds shall be surrendered to the Company for
cancellation as provided in Section 4.08 of the Senior Note Indenture. The
Trustee may at any time and all times conclusively assume that the obligation
of the Company to make payments with respect to the principal of, premium, if
any, and interest on the Senior Notes, so far as such payments at the time have
become due, has been fully satisfied and discharged pursuant to the foregoing
sentence unless and until the Trustee shall have received a written notice from
the Senior Note Trustee signed by one of its officers stating (i) the
timely payment of principal, or premium, if any, or interest on, the Senior
Notes has not been made, (ii) that the Company is in arrears as to the
payments required to be made by it to the Senior Note Trustee pursuant to the
Senior Note Indenture, and (iii) the amount of the arrearage.
Section 3. The New Bonds and the Trustee’s
certificate on the New Bonds shall be substantially in the following forms
respectively:
[FORM OF FACE OF NEW BOND]
NOTWITHSTANDING
ANY PROVISIONS HEREOF OR IN THE ORIGINAL INDENTURE THIS BOND IS NOT ASSIGNABLE
OR TRANSFERABLE EXCEPT AS PERMITTED OR REQUIRED BY SECTION 4.04 OF THE
INDENTURE DATED AS OF AUGUST 15, 2002, BETWEEN UNION ELECTRIC COMPANY AND THE
BANK OF NEW YORK, AS TRUSTEE
.
UNION ELECTRIC COMPANY
(Incorporated under
the laws of the State of Missouri)
First Mortgage Bonds, Senior Notes Series LL
UNION
ELECTRIC COMPANY
,
a corporation organized and existing under the laws of the State of Missouri
(hereinafter called the “Company”, which term shall include any successor
corporation as defined in the Amended Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to The Bank of New York, as
trustee under the Senior Note Indenture hereinafter referred to, or registered
assigns, the sum of
Dollars, on the 1st day of April, 2018 in any coin or currency of the United
States of America which at the time of payment is legal tender for public and
private debts, and to pay interest thereon, in like coin or currency, at the
rate of SIX per centum (6.00%) per
annum, payable semi-annually, on April 1 and October 1 in each year
until maturity, commencing October 1, 2008, and at maturity or, if the
Company shall default in the payment of the principal hereof, until the Company’s
obligation with respect to the payment of such principal shall be discharged as
provided in the Amended Indenture referred to on the reverse hereof. Such interest shall be payable from the April 1
or October 1 as the case may be, next preceding the date hereof to which
interest has not been paid, unless the date hereof is a April 1 or October 1
to which interest has been paid, in which case from the date hereof, or unless
the date hereof is prior to the first payment of interest, in which case from April 8,
2008. The interest so payable will be
paid to the person in whose name this Bond, or the Bond in exchange or
substitution for which this Bond shall have been issued, shall have been
registered at the close of business on the March 15 or September15, as the
case may be, next preceding the
14
date of payment, subject
to certain exceptions set forth in the Amended Indenture. The principal of,
premium, if any,
and interest on, this Bond are payable, in
immediately available funds, at the office of the Senior Note Trustee
hereinafter referred to.
Under an Indenture dated
as of August 15, 2002 (the “Senior Note Indenture”) between the Company
and The Bank of New York, as trustee (the “Senior Note Trustee”), the Company
will issue, concurrently with the issuance of this Bond, an issue of notes
under the Senior Note Indenture entitled “6.00% Senior Secured Notes due 2018”
(the “Senior Notes”). Pursuant to Article IV
of the Senior Note Indenture, this Bond is issued to the Senior Note Trustee to
secure any and all obligations of the Company under the Senior Notes and any
other series of senior notes from time to time outstanding under the Senior
Note Indenture. Payment of principal of,
or premium, if any, or interest on, the Senior Notes shall constitute payments
on this Bond as further provided herein and in the Supplemental Indenture dated
April 1, 2008 pursuant to which this Bond has been issued (the “Supplemental
Indenture”).
Upon any payment of the
principal of
, premium, if any
, and
interest on, all or any portion of the Senior Notes, whether at maturity or
prior to maturity by redemption or otherwise or upon provision for the payment
thereof having been made in accordance with Section 5.01(a) of the
Senior Note Indenture, a principal amount of this Bond equal to the principal
amount of such Senior Notes shall, to the extent of such payment of principal,
premium, if any, and interest, be deemed paid and the obligation of the Company
thereunder to make such payment shall be discharged to such extent and, in the
case of the payment of principal (and premium, if any), such bonds shall be
surrendered to the Company for cancellation as provided in Section 4.08 of
the Senior Note Indenture. The Trustee
(as hereinafter defined) may at any time and all times conclusively assume that
the obligation of the Company to make payments with respect to the principal of
, premium, if any
, and interest on, the
Senior Notes, so far as such payments at the time have become due, has been
fully satisfied and discharged pursuant to the foregoing sentence unless and
until the Trustee shall have received a written notice from the Senior Note
Trustee signed by one of its officers stating (i) that timely payment of
principal of,
premium, if any,
or
interest on, the Senior Notes has not been made, (ii) that the Company is
in arrears as to the payments required to be made by it to the Senior Note
Trustee pursuant to the Senior Note Indenture, and (iii) the amount of the
arrearage.
For
purposes of Section 4.09 of the Senior Note Indenture, this Bond shall be
deemed to be the “Related Series of Senior Note First Mortgage Bonds” in
respect of the Senior Notes.
This Bond shall not be
entitled to any benefit under the Amended Indenture or any indenture
supplemental thereto, or become valid or obligatory for any purpose, until The
Bank of New York, the Trustee under the Amended Indenture, or a successor
trustee thereto under the Amended Indenture, or an agent therefor, shall have
signed the form of certificate endorsed hereon.
The provisions of this
Bond are continued on the reverse hereof and such continued provisions shall
for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, Union
Electric Company has caused this Bond to be signed in its name by its Chairman
of the Board or President or a Vice President by manual signature or a
facsimile thereof, and its corporate seal (or a facsimile thereof) to be hereto
affixed and attested by its Secretary or an Assistant Secretary by manual
signature or a facsimile thereof.
15
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Dated,
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UNION
ELECTRIC COMPANY,
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By
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Vice President
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[CORPORATE SEAL]
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Attest:
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Secretary
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16
[FORM OF TRUSTEE’S CERTIFICATE]
This Bond is one of the Bonds, of the series
designated therein, described in the within-mentioned Amended Indenture and
Supplemental Indenture of April 1, 2008.
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THE BANK OF NEW YORK, as
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TRUSTEE
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By
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Authorized
Officer
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[FORM OF
REVERSE OF NEW BOND]
This Bond is one of a
duly authorized issue of Bonds of the Company (herein called the “Bonds”), in
unlimited aggregate principal amount, of the series hereinafter specified, all
issued and to be issued under and equally secured by the Indenture of Mortgage
and Deed of Trust, dated June 15, 1937, executed by the Company to The
Bank of New York (successor trustee to Bank of America, National Association,
formerly Boatmen’s Trust Company), as trustee (herein called the “Trustee”), as
amended by indentures supplemental thereto dated May 1, 1941, April 1,
1971, February 1, 1974, July 7, 1980, February 1, 2000 and August 15,
2002, between the Company and the Trustee (said mortgage and deed of trust, as
so amended, being herein called the “Amended Indenture”), to which Amended
Indenture and all indentures supplemental thereto reference is hereby made for
a description of the properties mortgaged and pledged, the nature and extent of
the security, the rights of the bearers or registered owners of the Bonds and
of the Trustee in respect thereto, and the terms and conditions upon which the
Bonds are, and are to be, secured. To
the extent permitted by, and as provided in, the Amended Indenture,
modifications or alterations of the Amended Indenture, or of any indenture
supplemental thereto, and of the rights and obligations of the Company and of
the holders of the Bonds may be made with the consent of the Company by an
affirmative vote of not less than 60% in amount of the Bonds entitled to vote
then outstanding, at a meeting of Bondholders called and held as provided in
the Amended Indenture, and by an affirmative vote of not less than 60% in
amount of the Bonds of any series entitled to vote then outstanding and
affected by such modification or alteration, in case one or more but less than
all of the series of Bonds then outstanding under the Amended Indenture are so
affected. Additionally, the Company may
amend the Amended Indenture, as supplemented, by an appropriate written consent
of not less than 60% in aggregate principal amount of the Bonds outstanding
(and, if the rights of one or more, but less than all, series of Bonds then
outstanding are to be affected by action taken pursuant to such consent, then
also by consent of the holders of at least 60% in principal amount of each
series of Bonds so to be affected and outstanding hereunder) without a meeting
of such Bondholders. No such
modification or alteration shall be made which will affect the terms of payment
of the principal of, or interest or premium on, this Bond, which are
unconditional. The Bonds may be issued
in series, for various principal sums, may mature at different times, may bear
interest at different rates and may otherwise vary as in the Amended Indenture
provided. This Bond is one of a series
designated as the “First Mortgage Bonds, Senior Notes Series LL” (herein
called the “Bonds of this Series”) of the Company, issued under and secured by
the Amended Indenture
17
and described in the
indenture (hereinafter called the “New Supplemental Indenture”) dated April 1,
2008, between the Company and the Trustee, supplemental to the Amended
Indenture.
The Bonds of this Series are
not entitled to the benefit of any improvement, maintenance or analogous fund.
This
Bond is not redeemable except on the date, in the principal amount and for the
redemption price that correspond to the redemption date for, the principal
amount to be redeemed of, and the redemption price for, the Senior Notes, and
except upon written demand of the Senior Note Trustee following the occurrence
of an event of default under the Senior Note Indenture and the acceleration of
the Senior Notes, as provided in Section 8.01 of the Senior Note
Indenture.
In case an event of
default, as defined in the Amended Indenture, shall occur, the principal of all
the Bonds at any such time outstanding under the Amended Indenture may be
declared or may become due and payable, upon the conditions and in the manner
and with the effect provided in the Amended Indenture. The Amended Indenture provides that such
declaration may in certain events be waived by the holders of a majority in
principal amount of the Bonds outstanding.
This Bond shall not be
assignable or transferable except as permitted or required by Section 4.04
of the Senior Note Indenture. This Bond
is exchangeable by the registered owner hereof, in person or by duly authorized
attorney, on the books of the Company to be kept for that purpose at the office
of the Company in the City of St. Louis, Missouri, upon surrender and
cancellation of this Bond and on presentation of a duly executed written
instrument of transfer, and thereupon a new Bond or Bonds of the same series,
of the same aggregate principal amount and in authorized denominations will be
issued to the transferee or transferees in exchange herefor, without payment of
any charge other than stamp taxes and other governmental charges incident
thereto; and this Bond with or without others of like series, may in like
manner be exchanged for one or more new Bonds of the same series of other
authorized denominations but of the same aggregate principal amount; all
subject to the terms and conditions set forth in the Amended Indenture.
No recourse shall be had
for the payment of the principal of,
premium,
if any,
or the interest on, this Bond, or for any claim based hereon or
on the Amended Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, director or officer, past, present or
future, of the Company, or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether for amounts unpaid on stock subscriptions or by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability, whether at common law,
in equity, by any constitution, statute or otherwise, of incorporators,
stockholders, directors or officers being released by every owner hereof by the
acceptance of this Bond and as part of the consideration for the issue hereof,
and being likewise released by the terms of the Amended Indenture.
[END OF FORM OF
REVERSE OF NEW BOND]
Section 4.
Until New Bonds in definitive form are
ready for delivery, the Company may execute, and upon its request in writing
the Trustee shall authenticate and deliver, in lieu thereof, New Bonds in
temporary form, as provided in Section 9 of Article II of the
Original Indenture.
18
ARTICLE II
ISSUE OF THE NEW BONDS
Section 1.
The principal amount of the New Bonds which may be
authenticated and delivered hereunder is limited to an amount equal to the
principal amount of the Senior Notes issued under the Senior Note Indenture and
secured thereby and are further subject to the limitations regarding the
principal amount of Bonds which may be issued under the Original Indenture set
forth therein.
Section 2.
The New Bonds in the aggregate principal amount of Two
Hundred Fifty Million Dollars ($250,000,000), being the initial issue of the
New Bonds, may forthwith at any time or from time to time be executed by the
Company and delivered to the Trustee and shall be authenticated by the Trustee
and delivered (either before or after the filing or recording hereof) to or
upon the order of the Company, upon compliance by the Company with the
applicable provisions of Article III and Article XVIII of the
Original Indenture.
Section 3.
For purposes of Section 4.09 of the Senior Note
Indenture, the New Bonds shall be deemed to be the “Related Series of
Senior Notes First Mortgage Bonds” in respect of the Senior Notes.
ARTICLE III
REDEMPTION OF THE NEW BONDS
Section 1.
The New Bonds are not redeemable except on the date,
in the principal amount and for the redemption price that correspond to the
redemption date for, the principal amount to be redeemed of, and the redemption
price for, the Senior Notes, and except as set forth in Section 2 of this Article III.
In the event that
the Company redeems any Senior Notes prior to maturity in accordance with the
provisions of the Senior Note Indenture, the Senior Note Trustee shall on the
same date deliver to the Company the New Bonds in principal amount
corresponding to the Senior Notes so redeemed, as provided in Section 4.08
of the Senior Note Indenture. The
Company agrees to give the Senior Note Trustee notice of any such redemption of
the Senior Notes on or before the date fixed for any such redemption. There shall be no improvement, maintenance or
analogous fund for the New Bonds.
Section 2.
Upon the occurrence of an Event
of Default under the Senior Note Indenture and the acceleration of the Senior
Notes, the New Bonds shall be redeemable in whole upon receipt by the Trustee
of a written demand (hereinafter called a “Redemption Demand”) from the Senior
Note Trustee stating that there has occurred under the Senior Note Indenture
both an Event of Default and a declaration of acceleration of payment of
principal, accrued interest and premium, if any, on the Senior Notes specifying
the last date to which interest on such Senior Notes has been paid (such date
being hereinafter referred to as the “Initial Interest Accrual Date”) and
demanding redemption of the New Bonds.
The Company waives any right it may have to prior notice of such
redemption under the Original Indenture.
Upon surrender of the New Bonds by the Senior Note Trustee to the
Trustee, the New Bonds shall be redeemed at a redemption price equal to the
principal amount thereof plus accrued interest thereon from the Initial
Interest Accrual Date to the
19
date
of the Redemption Demand; provided, however, that in the event of a rescission
or annulment of acceleration of the Senior Notes pursuant to the last paragraph
of Section 8.01(a) of the Senior Note Indenture, then any Redemption
Demand shall thereby be deemed to be rescinded by the Senior Note Trustee
although no such rescission or annulment shall extend to or affect any
subsequent default or impair any right consequent thereon.
ARTICLE IV
COVENANTS
The Company hereby
covenants, warrants and agrees;
Section 1.
That the Company is lawfully seized and possessed of
all of the mortgaged property described in the granting clauses of this
Supplemental Indenture; that it has good right and lawful authority to mortgage
the same as provided in this Supplemental Indenture; and that such mortgaged
property is, at the actual date of the issue of the New Bonds, free and clear
of any deed of trust, mortgage, lien, charge or encumbrance thereon or
affecting the title thereto prior to the Original Indenture, except as set
forth in the granting clauses of the Original Indenture or this Supplemental Indenture.
Section 2.
That, so long as any of the New Bonds are outstanding,
whenever any officers’ certificate is required to be filed or deposited with
the Trustee pursuant to Section 3(b) of Article III of the
Original Indenture upon an application for the authentication of additional
Bonds pursuant to Article III of the Original Indenture, such officers’
certificate shall include, in addition to the matters required to be stated
therein by said Section 3(b), the statement with respect to the net earnings
of the Company available for interest after property retirement appropriations
required by Section 2 of Article V of the Supplemental Indenture of July 1,
1956.
Section 3.
That, so long as any of the New Bonds are outstanding,
the Company will not apply for the authentication and delivery of additional
Bonds pursuant to Section 4 of Article III of the Original Indenture
or the withdrawal of cash from the trust estate or the reduction of the amount
of cash required to be paid into the trust estate or to satisfy the maintenance
and improvement funds under any provision of the Original Indenture or the
Supplemental Indentures creating prior series of Bonds, on the basis of the
amount of $15,000,000 excluded from net bondable value of property additions not
subject to an unfunded prior lien pursuant to Section 3 of Article V
of the Supplemental Indenture of October 1, 1945, or on the basis of the
amount of $7,500,000 excluded from net bondable value of property additions not
subject to an unfunded prior lien pursuant to Section 3 of Article V
of the Supplemental Indenture of July 1, 1956.
Section 4.
That, so long as any of the New Bonds are outstanding,
the Company will not issue or permit to be issued any prior lien bonds secured
by an unfunded prior lien in addition to the prior lien bonds secured by such
unfunded prior lien at the time of first acquisition by the Company of property
subject thereto (other than in lieu of lost, stolen or mutilated bonds or on
the exchange for bonds already outstanding of an equal principal amount of
other bonds of the same issue and the same series, if any, and of the same
maturity), except upon compliance with the provisions of Section 16 of Article IV
of the Original Indenture, nor unless the net earnings of the Company available
for interest after property retirement appropriations (determined as provided
in Section 2 of Article V of the Supplemental Indenture of July 1,
1956), for any twelve
20
consecutive calendar
months during the period of fifteen calendar months immediately preceding the
first day of the month in which the additional prior lien bonds are to be
issued, have been, in the aggregate, equal to not less than twice the annual
interest charges on the indebtedness specified in subparagraphs (i) and (ii) of
paragraph (1) of Section 2(a) of said Article V; provided
that, if the application for the issue of such additional prior lien bonds is
upon the basis of payment at maturity of prior lien bonds theretofore sold or
otherwise disposed of or the redemption or purchase thereof after a date two
years prior to the date of maturity, the additional requirement imposed by this
Section 4 with respect to net earnings of the Company available for
interest after property retirement appropriations shall not apply. Any officers’ certificate with respect to net
earnings of the Company, required to be filed with the Trustee as a condition
precedent to the issue of such additional prior lien bonds, shall include, in
addition to the matters otherwise required to be stated therein, the matters
required to be stated in an officers’ certificate pursuant to paragraphs (1) and
(2) of Section 2(a) of said Article V.
Section 5.
That, so long as any of the New Bonds are outstanding,
the Company will not acquire, by purchase, merger or otherwise, any property
subject to a lien or liens which will on acquisition be an unfunded prior lien
or prior liens, except upon compliance with the provisions of Section 14
of Article IV of the Original Indenture, nor unless the net earnings of
such property available for interest after property retirement appropriations
(determined in the manner provided in Section 2 of Article V of the
Supplemental Indenture of July 1, 1956), for any twelve consecutive calendar
months during the period of fifteen calendar months immediately preceding the
first day of the month in which the first acquisition of property subject to
such lien or liens occurs, have been, in the aggregate, equal to not less than
twice the amount of annual interest charges, on all outstanding indebtedness
secured by such lien or liens. Any
officers’ certificate with respect to net earnings of such property, required
to be filed with the Trustee as a condition precedent to the acquisition of
such property, shall include, in addition to the matters otherwise required to
be stated therein, the matters required to be stated in an officers’
certificate pursuant to Section 2 of said Article V applicable,
however, only to the net earnings of such property and to the indebtedness
secured by such liens to which such property is subject.
ARTICLE V
THE TRUSTEE
The Trustee hereby
accepts the trusts hereby declared and provided, and agrees to perform the same
upon the terms and conditions in the Original Indenture and in this
Supplemental Indenture set forth, and upon the following terms and conditions:
The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or the due execution hereof by the
Company or for or in respect of the recitals contained herein, all of which
recitals are made by the Company solely.
21
ARTICLE VI
MISCELLANEOUS PROVISIONS.
Section 1.
Except as otherwise defined herein, all terms
contained in this Supplemental Indenture shall, for all purposes thereof, have
the meanings given to such terms in Article I of the Original Indenture.
Section 2.
This Supplemental Indenture may be simultaneously
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original; but such counterparts shall together constitute but
one and the same instrument.
22
IN WITNESS WHEREOF
, said Union Electric
Company has caused this Supplemental Indenture to be executed on its behalf by
its Chairman of the Board or President or one of its Vice Presidents and its
corporate seal to be hereto affixed and said seal and this Supplemental
Indenture to be attested by its Secretary or one of its Assistant Secretaries;
and said The Bank of New York, in evidence of its acceptance of the trust
hereby created, has caused this Supplemental Indenture to be executed on its
behalf by its President or one of its Vice Presidents, and its corporate seal
to be hereto affixed and said seal and this Supplemental Indenture to be
attested by its Secretary, or one of its Assistant Secretaries; all as of the
1st day of April, Two thousand and eight.
|
Attested:
|
UNION
ELECTRIC COMPANY
,
1901 Chouteau Avenue
St. Louis, Missouri 63103
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|
|
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/s/
G. L. Waters
|
|
By:
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/s/
Jerre E. Birdsong
|
|
G.
L. Waters
Assistant
Secretary
|
Name:
Jerre E. Birdsong
Title: Vice President and Treasurer
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Signed, sealed and delivered by
UNION ELECTRIC COMPANY
in the presence of:
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/s/ Wayne Forbes
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Wayne Forbes
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/s/
Carol A. Head
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Carol
A. Head
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As Witnesses
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23
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Attested:
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THE
BANK OF NEW YORK
,
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/s/
Steven V. Vaccarello
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By:
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/s/
Pat Santivasci
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Steven
V. Vaccarello
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Name:
Pat Santivasci
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Vice
President
|
Vice
President
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Signed, sealed and delivered by
THE BANK OF NEW YORK
in the presence of:
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/s/ H. William Weber
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H. William Weber
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/s/
Michael Hieb
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Michael
Hieb
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As Witnesses
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24
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STATE OF MISSOURI,
|
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}
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}
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CITY OF ST. LOUIS,
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} SS.:
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On this 1st day of April,
2008, before me appeared
JERRE E. BIRDSONG
,
to me personally known, who, being by me duly sworn, did say that he is a Vice
President and Treasurer of
UNION ELECTRIC COMPANY
,
a corporation, and that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was signed and
sealed in behalf of said corporation by authority of its Board of Directors,
and said
JERRE E. BIRDSONG
acknowledged said
instrument to be the free act and deed of said corporation.
IN
TESTIMONY WHEREOF
,
I have hereto set my hand and affixed my official seal at my office, in the
City and State aforesaid, the day and year last above written.
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/s/
Danielle R. Moskop
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Notary
Public
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25
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STATE OF NEW YORK,
|
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}
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}
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CITY OF NEW YORK,
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} SS.:
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On this 1st day of April,
2008, before me appeared Pat Santivasci, to me personally known, who, being by
me duly sworn, did say that he is a Vice President of
THE BANK OF
NEW YORK
, a corporation, and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and that said instrument
was signed and sealed in behalf of said corporation, as the trustee thereunder
by authority of its Board of Directors, and said
Pat Santivasci, acknowledged said instrument to be the
free act and deed of said corporation as the trustee under said instrument.
IN
TESTIMONY WHEREOF
,
I have hereto set my hand and affixed my official seal at my office, in the
City and State aforesaid, the day and year last above written.
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/s/ Raymond
J. Keiser
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Notary
Public
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26
Exhibit 4.9
WHEN RECORDED MAIL TO
:
Illinois Power Company
Craig W. Stensland
One Ameren Plaza (MC 1310)
1901 Chouteau Avenue
St. Louis, MO 63103
ILLINOIS POWER COMPANY
TO
THE BANK OF NEW YORK TRUST COMPANY, N.A.
(FORMERLY BNY MIDWEST TRUST COMPANY),
AS SUCCESSOR TRUSTEE TO
HARRIS TRUST AND SAVINGS BANK
SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 1, 2008
TO
GENERAL MORTGAGE INDENTURE AND DEED OF TRUST
DATED AS OF NOVEMBER 1, 1992
This
instrument was prepared by Steven R. Sullivan, Senior Vice President, General
Counsel and Secretary of Illinois Power Company c/o Ameren Corporation, One
Ameren Plaza, 1901 Chouteau Avenue, St. Louis, Missouri 63103.
SUPPLEMENTAL INDENTURE dated as of April 1, 2008 (“Supplemental
Indenture”), made by and between ILLINOIS POWER COMPANY, a corporation
organized and existing under the laws of the State of Illinois (the “Company”),
party of the first part, and THE BANK OF NEW YORK TRUST COMPANY, N.A. (formerly
BNY Midwest Trust Company), a corporation organized and existing under the laws
of the State of Illinois, as successor trustee to Harris Trust and Savings
Bank, a corporation organized and existing under the laws of the State of
Illinois (the “Trustee”), as Trustee under the General Mortgage Indenture and
Deed of Trust dated as of November 1, 1992, hereinafter mentioned, party
of the second part;
WHEREAS
, the Company has
heretofore executed and delivered its General Mortgage Indenture and Deed of
Trust dated as of November 1, 1992 as from time to time amended (the “Indenture”),
to the Trustee, for the security of the Bonds of the Company issued and to be
issued thereunder (the “Bonds”); and
WHEREAS
, pursuant to the terms
and provisions of the Indenture there were created and authorized by
supplemental indentures thereto bearing the following dates, respectively, the
Mortgage Bonds of the series issued thereunder and respectively identified
opposite such dates:
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DATE OF
SUPPLEMENTAL INDENTURE
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IDENTIFICATION OF SERIES
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CALLED
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February 15, 1993
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8% Series due 2023 (redeemed)
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Bonds of the 2023 Series
|
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March 15, 1993
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6 1/8% Series due 2000 (paid at maturity)
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Bonds of the 2000 Series
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March 15, 1993
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6 3/4% Series due 2005 (paid at maturity)
|
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Bonds of the 2005 Series
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|
|
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July 15, 1993
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7 1/2% Series due 2025 (redeemed)
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Bonds of the 2025 Series
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August 1, 1993
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6 1/2% Series due 2003 (paid at maturity)
|
|
Bonds of the 2003 Series
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|
|
|
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October 15, 1993
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5 5/8% Series due 2000 (paid at maturity)
|
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Bonds of the Second 2000 Series
|
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November 1, 1993
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Pollution Control Series M (redeemed)
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Bonds of the Pollution Control Series M
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November 1, 1993
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Pollution Control Series N (redeemed)
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Bonds of the Pollution Control Series N
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November 1, 1993
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Pollution Control Series O (redeemed)
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Bonds of the Pollution Control Series O
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April 1, 1997
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Pollution Control Series P
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Bonds of the Pollution Control Series P
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April 1, 1997
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Pollution Control Series Q
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Bonds of the Pollution Control Series Q
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DATE OF
SUPPLEMENTAL INDENTURE
|
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IDENTIFICATION OF SERIES
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CALLED
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April 1, 1997
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Pollution Control Series R
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Bonds of the Pollution Control Series R
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March 1, 1998
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Pollution Control Series S
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Bonds of the Pollution Control Series S
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March 1, 1998
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Pollution Control Series T
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Bonds of the Pollution Control Series T
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July 15, 1998
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6 1/4% Series due 2002 (paid at maturity)
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Bonds of the 2002 Series
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September 15, 1998
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6% Series due 2003 (paid at maturity)
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Bonds of the Second 2003 Series
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June 15, 1999
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7.50% Series due 2009
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Bonds of the 2009 Series
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July 15, 1999
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Pollution Control Series U
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|
Bonds of the Pollution Control Series U
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July 15, 1999
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Pollution Control Series V (redeemed)
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Bonds of the Pollution Control Series V
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May 1, 2001
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Pollution Control Series W
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Bonds of the Pollution Control Series W
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May 1, 2001
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Pollution Control Series X
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Bonds of the Pollution Control Series X
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July 1, 2002
|
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10 5/8% Series due 2007 (not issued)
|
|
Bonds of the 2007 Series
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|
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July 1, 2002
|
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10 5/8% Series due 2012 (not issued)
|
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Bonds of the 2012 Series
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December 15, 2002
|
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11.50% Series due 2010
|
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Bonds of the 2010 Series
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|
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|
June 1, 2006
|
|
Mortgage Bonds, Senior Notes Series AA
|
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Bonds of Series AA
|
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August 1, 2006
|
|
Mortgage Bonds, 2006 Credit Agreement Series Bonds
|
|
2006 Credit Agreement Series Bonds
|
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|
|
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March 1, 2007
|
|
Mortgage Bonds, 2007 Credit Agreement Series Bonds
|
|
2007 Credit Agreement Series Bonds
|
|
|
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November 15, 2007
|
|
Mortgage Bonds, Senior Notes Series BB
|
|
Bonds of Series BB
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and
WHEREAS
, a supplemental
indenture with respect to the Bonds of the 2007 Series and the Bonds of
the 2012 Series listed above was executed and filed but such Bonds of the
2007 Series and Bonds of the 2012 Series were never issued and a
release with respect to such supplemental indenture was subsequently executed
and filed; and
2
WHEREAS
, the Company desires
to create a new series of Bonds to be issued under the Indenture to be known as
“Mortgage Bonds, Senior Notes Series CC” (the “Series CC Mortgage
Bonds”); and
WHEREAS
, the Company has entered into an
Indenture dated as of June 1, 2006 (the “Senior Note Indenture”) with The
Bank of New York Trust Company, N.A., as trustee (the “Senior Note Trustee”),
providing for the issuance from time to time of senior notes thereunder; and
WHEREAS
, the Company desires
by this Supplemental Indenture to issue to the Senior Note Trustee the Series CC
Mortgage Bonds as security for $337,000,000 aggregate principal amount of the
Company’s 6.25% Senior Secured Notes due 2018 (the “Senior Notes”) to be issued
under the Senior Note Indenture; and
WHEREAS
, the Company, in the
exercise of the powers and authority conferred upon and reserved to it under
the provisions of the Indenture, and pursuant to appropriate resolutions of the
Board of Directors, has duly resolved and determined to make, execute and
deliver to the Trustee this Supplemental Indenture in the form hereof for the
purposes herein provided; and
WHEREAS
, all conditions and
requirements necessary to make this Supplemental Indenture a valid, binding and
legal instrument have been done, performed and fulfilled and the execution and
delivery hereof have been in all respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE
WITNESSETH:
THAT Illinois Power Company, in consideration of the purchase and
ownership from time to time of the Bonds and the service by the Trustee, and
its successors, under the Indenture and of One Dollar to it duly paid by the
Trustee at or before the ensealing and delivery of these presents, the receipt
whereof is hereby acknowledged, hereby covenants and agrees to and with the
Trustee and its successors in the trust under the Indenture, for the benefit of
those who shall hold the Bonds as follows:
ARTICLE I
DESCRIPTION OF THE SERIES CC MORTGAGE BONDS.
Section 1.
The Company hereby creates a new series of Bonds to be known
as “Mortgage Bonds, Senior Notes Series CC” (the “Series CC Mortgage
Bonds”). The Series CC Mortgage
Bonds shall be executed, authenticated and delivered in accordance with the
provisions of, and shall in all respects be subject to, all of the terms,
conditions and covenants of the Indenture, as supplemented and modified. The Series CC Mortgage Bonds shall be
issued in the name of the Senior Note Trustee under the Senior Note Indenture
to secure any and all of the Company’s obligations under the Senior Notes and
any other series of senior notes from time to time outstanding under the Senior
Note Indenture.
The Series CC Mortgage Bonds shall be dated as provided in Section 3.03
of Article Three of the Indenture.
The Series CC Mortgage Bonds shall mature on April 1, 2018,
shall accrue interest from the dates set forth in the Senior Notes and shall
bear interest at the same rate of interest as the Senior Notes. Interest on the Series CC Mortgage Bonds
is payable on the same dates as interest on the Senior Notes is paid, until the
principal sum is paid in full.
3
Upon any payment of the
principal of, premium, if any, and interest on, all or any portion of the
Senior Notes, whether at maturity or prior to maturity by redemption or
otherwise or upon provision for the payment thereof having been made in
accordance with Section 5.01(a) of the Senior Note Indenture, the
Series CC
Mortgage Bonds
in a
principal amount equal to the principal amount of such Senior Notes shall, to
the extent of such payment of principal, premium, if any, and interest, be
deemed paid and the obligation of the Company thereunder to make such payment
shall be discharged to such extent and, in the case of the payment of principal
(and premium, if any), such
Series CC Mortgage Bonds
shall be surrendered to the Company for
cancellation as provided in Section 4.08 of the Senior Note
Indenture. The Trustee may at any time
and all times conclusively assume that the obligation of the Company to make
payments with respect to the principal of, premium, if any, and interest on the
Senior Notes, so far as such payments at the time have become due, has been
fully satisfied and discharged pursuant to the foregoing sentence unless and
until the Trustee shall have received a written notice from the Senior Note
Trustee signed by one of its officers stating (i) the timely payment of
principal, or premium, if any, or interest on, the Senior Notes has not been
made, (ii) that the Company is in arrears as to the payments required to
be made by it to the Senior Note Trustee pursuant to the Senior Note Indenture,
and (iii) the amount of the arrearage.
Section 2.
The Series CC Mortgage Bonds and the Trustee’s
Certificate of Authentication shall be substantially in the following forms
respectively:
[FORM OF FACE OF BOND]
NOTWITHSTANDING ANY PROVISIONS
HEREOF OR IN THE INDENTURE THIS BOND IS NOT ASSIGNABLE OR TRANSFERABLE EXCEPT
AS PERMITTED BY SECTION 4.04 OF THE
INDENTURE DATED AS OF JUNE 1, 2006, BETWEEN
ILLINOIS POWER COMPANY AND THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE
ILLINOIS POWER COMPANY
(Incorporated under the laws of the State of Illinois)
Illinois Commerce Commission
Identification No.: Ill. C.C. 6480
MORTGAGE
BOND, SENIOR NOTES SERIES CC
ILLINOIS POWER COMPANY, a corporation organized and existing under the
laws of the State of Illinois (the “Company”), which term shall include any
successor corporation as defined in the Indenture hereinafter referred to, for
value received, hereby promises to pay to The Bank of New York Trust Company,
N.A., as trustee (the “Senior Note Trustee”) under the Indenture dated as of June 1,
2006 (the “Senior Note Indenture”), relating to the Company’s 6.25% Senior
Secured Notes due 2018 (the “Senior Notes”) in the aggregate principal amount
of $337,000,000, between the Company and the Senior Note Trustee, or registered
assigns, the principal sum of $337,000,000 on April 1, 2018, in any coin
or currency of the United States of America, which at the time of payment is
legal tender for public and private debts, and to pay interest thereon in like
coin or currency from the date of issuance (and thereafter from the dates
4
set forth in the Senior Notes), and at
the same rate of interest as the Senior Notes.
Interest on overdue principal, premium, if any, and, to the extent
permitted by law, on overdue interest, shall be payable at the interest rate
payable on the Senior Notes. Interest on
this Mortgage Bond is payable on the same dates as interest on the Senior Notes
is paid, until the principal sum of this Mortgage Bond is paid in full. Pursuant to Article IV of the Senior
Note Indenture, this Mortgage Bond is issued to the Senior Note Trustee to
secure any and all obligations of the Company under the Senior Notes and any
other series of senior notes from time to time outstanding under the Senior
Note Indenture. Payment of principal of,
or premium, if any, or interest on, the Senior Notes shall constitute payments
on this Mortgage Bond as further provided herein and in the Supplemental
Indenture of April 1, 2008 (as hereinafter defined) pursuant to which this
Mortgage Bond has been issued. Both the principal of, premium, if any, and the
interest on, this Mortgage Bond are payable at the office of the Senior Note
Trustee.
Upon any payment of the
principal of
, premium, if any
, and
interest on, all or any portion of the Senior Notes, whether at maturity or
prior to maturity by redemption or otherwise or upon provision for the payment
thereof having been made in accordance with Section 5.01(a) of the
Senior Note Indenture, a principal amount of this Mortgage Bond equal to the
principal amount of such Senior Notes shall, to the extent of such payment of
principal, premium, if any, and interest, be deemed paid and the obligation of
the Company thereunder to make such payment shall be discharged to such extent
and, in the case of the payment of principal (and premium, if any), such
Mortgage Bonds shall be surrendered to the Company for cancellation as provided
in Section 4.08 of the Senior Note Indenture. The Trustee (as hereinafter defined) may at
any time and all times conclusively assume that the obligation of the Company
to make payments with respect to the principal of
, premium, if any
, and interest on, the Senior Notes, so far as
such payments at the time have become due, has been fully satisfied and
discharged pursuant to the foregoing sentence unless and until the Trustee
shall have received a written notice from the Senior Note Trustee signed by one
of its officers stating (i) that timely payment of principal of,
premium, if any,
or interest on, the
Senior Notes has not been made, (ii) that the Company is in arrears as to
the payments required to be made by it to the Senior Note Trustee pursuant to
the Senior Note Indenture, and (iii) the amount of the arrearage.
For purposes of Section 4.09 of the Senior Note Indenture, this
Mortgage Bond shall be deemed to be the “Related Series of Senior Note
Mortgage Bonds” in respect of the Senior Notes.
This Mortgage Bond shall not be entitled to any benefit under the
Indenture or any indenture supplemental thereto, or become valid or obligatory
for any purpose, until the form of certificate endorsed hereon shall have been
signed by or on behalf of The Bank of New York Trust Company, N.A. (formerly
BNY Midwest Trust Company), as successor trustee to Harris Trust and Savings
Bank, the Trustee under the Indenture, or a successor trustee thereto under the
Indenture (the “Trustee”).
The provisions of this Mortgage Bond are continued on the reverse
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
5
IN WITNESS WHEREOF, Illinois Power Company has caused this Mortgage
Bond to be signed (manually or by facsimile signature) in its name by an
Authorized Executive Officer, as defined in the aforesaid Indenture, and
attested (manually or by facsimile signature) by an Authorized Executive
Officer, as defined in such Indenture on the date hereof.
Dated April 8, 2008
ILLINOIS POWER COMPANY,
By:
AUTHORIZED EXECUTIVE OFFICER
ATTEST:
|
By:
|
AUTHORIZED EXECUTIVE OFFICER
|
6
[FORM OF TRUSTEE’S CERTIFICATE OF
AUTHENTICATION]
This is one of the Mortgage Bonds of the series designated therein
referred to in the within mentioned Indenture and the Supplemental Indenture
dated as of April 1, 2008.
THE BANK OF NEW YORK TRUST COMPANY, N.A.
(formerly BNY Midwest Trust Company),
as successor trustee to
Harris Trust and Savings Bank,
TRUSTEE,
By:
AUTHORIZED SIGNATORY
[FORM OF REVERSE OF BOND]
This Mortgage Bond is one of a duly authorized issue of Mortgage Bonds
of the Company (the “Mortgage Bonds”) in unlimited aggregate principal amount,
of the series hereinafter specified, all issued and to be issued under and
equally secured by the General Mortgage Indenture and Deed of Trust (the “Indenture”),
dated as of November 1, 1992, executed by the Company to The Bank of New
York Trust Company, N.A. (formerly BNY Midwest Trust Company), as successor
trustee to Harris Trust and Savings Bank (the “Trustee”) to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the properties mortgaged and pledged, the nature and extent of the security,
the rights of registered owners of the Mortgage Bonds and of the Trustee in
respect thereof, and the terms and conditions upon which the Mortgage Bonds
are, and are to be, secured. The Mortgage
Bonds may be issued in series, for various principal sums, may mature at
different times, may bear interest at different rates and may otherwise vary as
provided in the Indenture. This Mortgage
Bond is one of a series designated as the Series CC Mortgage Bonds of the
Company, unlimited in aggregate principal amount, issued under and secured by
the Indenture and described in the Supplemental Indenture dated as of April 1,
2008 (the “Supplemental Indenture of April 1, 2008” ), between the Company
and the Trustee, supplemental to the Indenture.
This Series CC Mortgage Bond is subject to redemption in
accordance with the terms of Article II of the Supplemental Indenture of April 1,
2008.
In case an Event of Default, as defined in the Indenture, shall occur,
the principal of all Mortgage Bonds at any such time outstanding under the
Indenture may be declared or may become due and payable, upon the conditions
and in the manner and with the effect provided in the Indenture. The Indenture provides that such declaration
may be rescinded under certain circumstances.
ARTICLE II
REDEMPTION.
Section 1. The
Series CC
Mortgage Bonds
are
not redeemable except on the date, in the principal amount and for the
redemption price that correspond to the redemption date for, the
7
principal amount
to be redeemed of, and the redemption price for, the Senior Notes, and except
as set forth in Section 2 of this Article II.
In the event that
the Company redeems any Senior Notes prior to maturity in accordance with the
provisions of the Senior Note Indenture, the Senior Note Trustee shall on the
same date deliver to the Company the Series CC Mortgage Bonds in principal
amount corresponding to the Senior Notes so redeemed, as provided in Section 4.08
of the Senior Note Indenture. The
Company agrees to give the Trustee notice of any such redemption of the Senior
Notes on or before the date fixed for any such redemption.
Section 2.
Upon
the occurrence of an Event of Default under the Senior Note Indenture (as
defined therein) and the acceleration of the Senior Notes, the Series CC
Mortgage Bonds shall be redeemable in whole upon receipt by the Trustee (with a
copy to the Company) of a written demand (hereinafter called a “Redemption
Demand”) from the Senior Note Trustee stating that there has occurred under the
Senior Note Indenture both an Event of Default and a declaration of
acceleration of payment of principal, accrued interest and premium, if any, on
the Senior Notes specifying the last date to which interest on such Senior
Notes has been paid (such date being hereinafter referred to as the “Initial
Interest Accrual Date”) and demanding redemption of the Series CC Mortgage
Bonds. The Company waives any right it
may have to prior notice of such redemption under the Indenture. Upon surrender of the Series CC Mortgage
Bonds by the Senior Note Trustee to the Trustee, the Series CC Mortgage
Bonds shall be redeemed at a redemption price equal to the principal amount
thereof plus accrued interest thereon from the Initial Interest Accrual Date to
the redemption date; provided, however, that in the event of a rescission or
annulment of acceleration of the Senior Notes pursuant to the last paragraph of
Section 8.01(a) of the Senior Note Indenture, then any Redemption
Demand shall thereby be deemed to be rescinded by the Senior Note Trustee
although no such rescission or annulment shall extend to or affect any
subsequent default or impair any right consequent thereon.
ARTICLE III
ISSUE OF THE SERIES CC MORTGAGE BONDS.
Section 1.
The Company hereby
exercises the right to obtain the authentication of $337,000,000 principal
amount of additional Bonds pursuant to the terms of Section 4.04 of the
Indenture, all of which shall be Series CC Mortgage Bonds. The principal amount of the Series CC
Mortgage Bonds outstanding from time to time shall always be equal to the
principal amount of the Senior Notes which are outstanding from time to time
under the Senior Note Indenture and to the extent the Senior Note Trustee holds
Series CC Mortgage Bonds in excess of such principal amount, such Series CC
Mortgage Bonds shall be deemed cancelled and retired and no longer outstanding
under the Indenture.
Section 2.
Such Series CC
Mortgage Bonds may be authenticated and delivered prior to the filing for
recordation of this Supplemental Indenture.
Section 3. For purposes of Section 4.09 of the
Senior Note Indenture, the
Series CC Mortgage Bonds
shall be deemed to be the “Related Series of
Senior Notes Mortgage Bonds” in respect of the Senior Notes.
8
ARTICLE IV
THE TRUSTEE.
The Trustee hereby accepts the trusts hereby declared and provided, and
agrees to perform the same upon the terms and conditions in the Indenture set
forth and upon the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or the
due execution hereof by the Company or for or in respect of the recitals
contained herein, all of which recitals are made by the Company solely. In general, each and every term and condition
contained in Article Eleven of the Indenture shall apply to this
Supplemental Indenture with the same force and effect as if the same were
herein set forth in full, with such omissions, variations and modifications
thereof as may be appropriate to make the same conform to this Supplemental
Indenture.
ARTICLE V
MISCELLANEOUS PROVISIONS.
This Supplemental Indenture may be simultaneously executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
9
IN WITNESS WHEREOF, said Illinois Power Company has caused this
Supplemental Indenture to be executed on its behalf by an Authorized Executive
Officer as defined in the Indenture, and its corporate seal to be hereto
affixed and said seal and this Supplemental Indenture to be attested by an
Authorized Executive Officer as defined in the Indenture; and said The Bank of
New York Trust Company, N.A. (formerly BNY Midwest Trust Company), as successor
trustee to Harris Trust and Savings Bank, in evidence of its acceptance of the
trust hereby created, has caused this Supplemental Indenture to be executed on
its behalf by its President or one of its Vice Presidents and its corporate
seal to be hereto affixed and said seal and this Supplemental Indenture to be
attested by its Secretary or one of its Vice Presidents; all as of April 1,
2008.
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ILLINOIS POWER COMPANY
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(CORPORATE SEAL)
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By:
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/s/ Jerre E. Birdsong
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Name:
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Jerre E. Birdsong
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Title:
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Vice President and Treasurer
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ATTEST:
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By:
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/s/ Craig W. Stensland
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Name:
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Craig W. Stensland
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Title:
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Assistant Secretary
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10
THE BANK OF NEW YORK TRUST COMPANY, N.A.
(formerly BNY Midwest Trust Company),
successor trustee to
Harris Trust and Savings Bank,
TRUSTEE,
(CORPORATE SEAL)
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By:
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/s/ Judy Bartolini
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Name: Judy Bartolini
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Title: Vice President
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ATTEST:
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By:
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/s/ Mary Callahan
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Name: Mary Callahan
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Title: Vice President
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11
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STATE OF MISSOURI
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ss.
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CITY OF ST. LOUIS
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)
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BE IT REMEMBERED, that on this 1st day of April, 2008, before me, the
undersigned, a Notary Public within and for the City and State aforesaid,
personally came Jerre E. Birdsong, Vice President and Treasurer and Ron Gieseke,
Assistant Secretary, of Illinois Power Company, a corporation duly organized,
incorporated and existing under the laws of the State of Illinois, who are
personally known to me to be such officers, and who are personally known to me
to be the same persons who executed as such officers the within instrument of
writing, and such persons duly acknowledged that they signed, sealed and
delivered the said instrument as their free and voluntary act as such officers
and as the free and voluntary act of said Illinois Power Company for the uses
and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
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/s/ Danielle R. Moskop
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NOTARY
PUBLIC
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My
Commission Expires on July 21, 2009
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(NOTARIAL SEAL)
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STATE OF ILLINOIS
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ss.
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CITY OF CHICAGO
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)
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BE IT REMEMBERED, that on this 1st day of April, 2008, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came J. Bartolini, Vice President and M. Callahan, Vice President,
of The Bank of New York Trust Company, N.A., a corporation duly organized,
incorporated and existing under the laws of the State of Illinois, who are
personally known to me to be the same persons who executed as such officers the
within instrument of writing, and such persons duly acknowledged that they
signed, sealed and delivered the said instrument as their free and voluntary
act as such Vice President and Vice President, and as the free and voluntary
act of said The Bank of New York Trust Company, N.A. for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
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/s/ Julie Meadors
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NOTARY
PUBLIC, ILLINOIS
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My
Commission Expires on January 7, 2012
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(NOTARIAL SEAL)
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13
