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UTILICORP UNITED INC.
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
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6.70% Senior Notes Due 2006
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EIGHTH SUPPLEMENTAL INDENTURE
Dated as of October 1, 1996
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EIGHTH SUPPLEMENTAL INDENTURE, dated as of October 1, 1996 (herein
called the "Eighth Supplemental Indenture"), between UTILICORP UNITED INC., a
corporation duly organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), party of the first part, and THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association duly organized and
existing under the laws of the United States, as Trustee under the Original
Indenture referred to below (hereinafter called the "Trustee"), party of the
second part.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of November 1, 1990 (hereinafter called the
"Original Indenture"), to provide for the issuance from time to time of certain
of its unsecured senior notes (hereinafter called the "Securities"), the form
and terms of which are to be established as set forth in Sections 201 and 301 of
the Original Indenture; and
WHEREAS, Section 901 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Original Indenture for, among other things, the purpose of establishing
the form or terms of the Securities of any series as permitted in Sections 201
and 301 of the Original Indenture; and
2
WHEREAS, the Company desires to create a series of the Securities in
an aggregate principal amount of $100,000,000 to be designated the "6.70% Senior
Notes Due 2006" (the "Senior Notes"), and all action on the part of the Company
necessary to authorize the issuance of the Senior Notes under the Original
Indenture and this Eighth Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Senior Notes when
executed by the Company and completed, authenticated and delivered by the
Trustee as in the Original Indenture and this Eighth Supplemental Indenture
provided, the valid and binding obligations of the Company and to constitute
these presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed.
WHEREAS, Section 901 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Original Indenture to, among other things, add to the covenants of the
Company for the benefit of the Holders of all or any series of Securities; and
WHEREAS, the Company desires to limit the issuance of Mortgage Bonds
under its General Mortgage (as hereinafter defined) as set forth in Section 204
of this Eighth Supplemental Indenture for the benefit of the Holders of the
Senior Notes;
3
NOW, THEREFORE, THIS EIGHTH SUPPLEMENTAL INDENTURE
WITNESSETH:
That in consideration of the premises, the Company covenants and
agrees with the Trustee, for the equal benefit of holders of the Senior Notes,
as follows:
ARTICLE ONE
DEFINITIONS
The use of the terms and expressions herein is in accordance with the
definitions, uses and constructions contained in the Original Indenture and the
form of Senior Note attached hereto as Exhibit A.
ARTICLE TWO
TERMS AND ISSUANCE OF THE SENIOR NOTES
Section 201. ISSUE OF SENIOR NOTES. A series of Securities which
shall be designated the "6.70% Senior Notes Due 2006" shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, the terms, conditions and covenants of the Original
Indenture and this Eighth Supplemental Indenture (including the form of Senior
Note set forth as Exhibit A hereto). The aggregate principal amount of Senior
Notes of the series created hereby which may be authenticated and delivered
under the Original Indenture shall not, except as permitted by the provisions of
the Original Indenture, exceed $100,000,000.
4
Section 202. FORM OF SENIOR NOTES; INCORPORATION OF TERMS. The form
of the Senior Notes shall be substantially in the form of Exhibit A attached
hereto. The terms of such Senior Notes are herein incorporated by reference and
are part of this Eighth Supplemental Indenture.
Section 203. PLACE OF PAYMENT. The Place of Payment will be
initially the corporate trust offices of the Trustee which, at the date hereof,
are located at The First National Bank of Chicago, Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000 and The First National Bank of Chicago,
00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 204. LIMITATION ON ISSUANCE OF MORTGAGE BONDS. The Company
will not issue any Mortgage Bonds under its General Mortgage Indenture and Deed
of Trust, dated September 15, 1988, between the Company and Commerce Bank of
Kansas City, N.A., as Trustee (the "General Mortgage"), without making effective
provision, and the Company covenants that in any such case effective provisions
will be made, whereby the Senior Notes shall be directly secured by the General
Mortgage equally and ratably with any and all other obligations and indebtedness
thereby secured.
5
ARTICLE THREE
MISCELLANEOUS
Section 301. EXECUTION OF SUPPLEMENTAL INDENTURE. This Eighth
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Eighth Supplemental Indenture forms a part thereof.
Section 302. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Eighth Supplemental Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
Section 303. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 304. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Eighth Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 305. SEPARABILITY CLAUSE. In case any provision in this
Eighth Supplemental Indenture or in the Senior Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 306. BENEFITS OF EIGHTH SUPPLEMENTAL INDENTURE. Nothing in
this Eighth Supplemental Indenture or in
6
the Senior Notes, express or implied, shall give to any person, other than the
parties hereto and their successors hereunder and the holders, any benefit or
any legal or equitable right, remedy or claim under this Eighth Supplemental
Indenture.
Section 307. GOVERNING LAW. This Eighth Supplemental Indenture and
each Senior Note shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be governed by and construed in
accordance with the laws of said State.
Section 308. EXECUTION AND COUNTERPARTS. This Eighth Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
7
IN WITNESS WHEREOF, the parties hereto have caused this Eighth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
UTILICORP UNITED INC.
[Seal] By: /s/ XXXX X. XXXX
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Name: Xxxx X. Xxxx
Title: Vice President,
Finance
Attest:
/s/ XXXXX XXXXXX
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Title: Asst. Treasurer
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
[Seal] By: /s/ XXXX X. XXXXXXXXXXX
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Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
Attest:
/s/ XXXXXX XXXXXXX
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Title: Trust Officer
STATE OF Missouri )
) ss.:
COUNTY OF Xxxxxxx )
On the 18th day of October, 1996, before me personally came Xxxx X.
Xxxx, to me known, who, being by me duly sworn, did depose and say that he is
Vice President of UtiliCorp United Inc., the corporation described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/Xxxxxx X. Xxxxxx
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Notary Public,
State of Missouri
STATE OF Illinois )
) ss.:
COUNTY OF Xxxx )
On the 21st day of October, 1996, before me personally came
Xxxx X. Xxxxxxxxxxx, to me known, who, being by me duly sworn, did depose and
say that he is Vice President of The First National Bank of Chicago, the
national banking association described in and which executed the foregoing
instrument; that he knows the seal of said association; that the seal affixed
to said instrument is such association seal; that it was so affixed by
authority of the Board of Directors of said association, and that he signed
his name thereto by like authority.
/s/Mietka X. Xxxxxxx
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Notary Public,
State of Illinois
EXHIBIT A
[FORM OF FACE OF SENIOR NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND 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 NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR.
REGISTERED REGISTERED
UTILICORP UNITED INC.
____% SENIOR NOTE DUE ____
No. $
UTILICORP UNITED INC., a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ____________________, or registered
assigns, the principal sum of __________________________________________ DOLLARS
on ____________, and to pay interest thereon from _________, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on ______ and __________ in each year, commencing
________________, at the rate per annum provided in the title hereof, until the
principal hereof is paid or made available for payment, and, subject to the
terms of the Indenture, at the rate per annum provided in the title hereof on
any overdue principal and premium, if any, and (to the extent that the payment
of such interest shall be legally enforceable) on any overdue instalment of
interest. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
payment, which shall be the ______ or ___________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. 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 may either
- 2 -
be paid to the Holder in whose name this Security (or one or more Predecessor
Securities) 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, in which
event notice whereof shall be given to Holders of Securities of this series not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of and premium, if any, and interest on this
Security will be made at the office or agency of the Trustee maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. The Company may pay principal
by check payable in such money or by wire transfer to a dollar account
maintained by the holder (if the holder of the Security holds an aggregate
principal amount of Securities in excess of $5,000,000). The Company may pay
interest by mailing a dollar check to a holder's registered address or, upon
application by the holder hereof to the Registrar, not later than the applicable
record date, by wire transfer to a dollar account maintained by the holder (if
the holder of the Security holds an aggregate principal amount of Securities in
excess of $5,000,000).
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, or an Authenticating Agent, by
manual signature of one of its authorized officers, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
- 3 -
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UTILICORP UNITED INC.
Dated: By:
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Title:
----------------
Attest:
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[Seal] Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Senior
Notes of the series designated
herein referred to in the
within-mentioned Indenture
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
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Authorized Officer
[FORM OF REVERSE OF SENIOR NOTE]
UTILICORP UNITED INC.
____% SENIOR NOTE DUE ____
This Senior Note is one of a duly authorized series of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of November 1, 1990, as amended and
supplemented (as amended and supplemented, the "Indenture"), between the Company
and The First National Bank of Chicago, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $100,000,000.
This Security is not subject to any sinking fund, nor may this
Security be redeemed at the option of the Company prior to the Maturity Date.
[This Security may be repaid by the Company at the option of the Holder on
____________ (the "Repayment Date"). The Repayment Price shall be 100% of the
principal amount of this Security plus accrued interest to the Repayment Date,
but interest installments whose Stated Maturity is prior to the Repayment Date
will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular or
Special Record Dates, all as provided in the Indenture. For this Security to be
repaid at the option of the Holder, the Paying Agent must receive, during the
period from and including _____________ to and including the close of business
on ___________ (or, if ___________ is not a Business Day, the next succeeding
Business Day) (a) appropriate wire transfer instructions and (b) either (i) this
Security with the form entitled "Option to Elect Repayment" below duly completed
or (ii) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States setting forth
the name of the Holder of this Security, the principal amount of this Security,
the portion of principal amount of this Security to be repaid, the certificate
number or a description of the tenor and terms of this Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that this Security, together with the duly completed form entitled "Option to
Elect
- 2 -
Repayment" on this Security, will be received by the Paying Agent not later than
the fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter, PROVIDED, HOWEVER, that such Security and form duly
completed are received by the Paying Agent by such fifth Business Day. Exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company. The repayment option with respect to this Security may be exercised by
the Holder for less than the entire principal amount hereof, PROVIDED that the
principal amount, if any, of this Security that remains outstanding after such
repayment must be an authorized denomination as defined herein. The Company
will not be required to register the transfer or exchange of any Security
following the receipt of a notice to repay a Security as described above. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Security for repayment will be determined by the Paying Agent,
whose determination will be final and binding. In the event of repayment of
this Security in part only, a new Security or Securities of this series and of
like tenor and for a principal amount equal to the unrepaid portion will be
delivered to the Holder upon the cancellation hereof.]
Interest payments for this Security will be computed and paid on the
basis of a 360-day year of twelve 30-day months. If an Interest Payment Date
falls on a day that is not a Business Day, such Interest Payment Date will be
the following day that is a Business Day.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 66 2/3% in principal amount of the
Securities at the time Outstanding of all series to be affected (voting as a
class). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
- 3 -
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
This Security shall be exchangeable for Securities registered in the
names of Persons other than the Depositary with respect to such series or its
nominee only as provided in this paragraph. This Security shall be so
exchangeable if (x) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such series or at any time ceases to be a
clearing agency registered as such under the Securities Exchange Act of 1934,
(y) the Company executes and delivers to the Trustee an Officers' Certificate
providing that this Security shall be so exchangeable or (z) there shall have
occurred and be continuing an Event of Default with respect to the Securities of
such series. Securities so issued in exchange for this Security shall be of the
same series, having the same interest rate, if any, and maturity and having the
same terms as this Security, in authorized denominations and in the aggregate
having the same principal amount as this Security and registered in such names
as the Depositary for such Global Security shall direct.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of a Security of the series of which this
Security is a part is registrable in the Security Register, upon surrender of
this Security for registration of transfer at the office or agency of the
Company in any place where the principal of and premium, if any, and interest,
if any, on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
- 4 -
The Securities of the series of which this Security is a part are
issuable only in registered form without coupons in denominations of $1,000 and
in integral multiples thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor 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 Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE AT THE OPTION OF THE HOLDER
AND THE HOLDER ELECTS TO EXERCISE SUCH RIGHTS
The undersigned hereby irrevocably requests and instructs the Company
to repay the attached Security (or portion thereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount thereof together in
the case of any such repayment with interest to the Repayment Date, to the
undersigned at ___________________________________________.
For the Security to be repaid at the option of the Holder, the Paying
Agent must receive as its corporate trust office, at any time from and including
_____________ to and including the close of business on ___________ (or if
___________ is not a Business Day, the next succeeding Business Day), (a)
appropriate wire transfer instructions and (b) either (i) the Security together
with this "Option to Elect Repayment" form duly completed or (ii) a telegram,
telex, facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States setting forth the name of
the Holder of the Security, the principal amount of the Security, the principal
amount of the Security to be repaid, the certificate number or a description of
the tenor and terms of the Security, a statement that the option to elect
repayment is being exercised thereby and a guarantee that the Security, together
with this duly completed form entitled "Option to Elect Repayment" on the
reverse of the Security, will be received by the Paying Agent not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter, provided, however, that such telegram, telex, facsimile
transmission or letter shall be effective only if the Security with such form
duly completed are received by the Paying Agent by such fifth Business Day.
If less than the entire principal amount of the attached Security is
to be repaid, specify the portion thereof which the Holder elects to have
repaid: ____________________; and specify the denomination or denominations
(which shall be an Authorized Denomination) of the Security or Securities to be
issued to the Holder for the portion of the within Security not being repaid (in
the absence of any specification, one such Security will be issued for the
portion not being repaid): ______________________.
Dated:
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NOTICE: The signature to this
Option to Elect Repayment must correspond
with the name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
