(Conformed)
THE EMPIRE DISTRICT ELECTRIC COMPANY
TO
XXXXXX TRUST AND SAVINGS BANK
AND
STATE STREET BANK AND TRUST COMPANY
OF MISSOURI, N.A.
Trustees
___________________
Thirtieth Supplemental Indenture
Dated as of July 1, 1999
___________________
(Supplemental to Indenture dated as of September 1, 1944)
___________________
For the Purpose of Amending Section 4.11
Of the Indenture Dated as of September 1, 1944
TABLE OF CONTENTS 1
PAGE
PARTIES 1
RECITALS 1
ARTICLE I
MODIFICATION OF ORIGINAL INDENTURE
SECTION 1. Amendment of Section 4.11 of the Indenture 3
SECTION 2. Each Applicable Supplemental Indenture shall be
construed to continue Section 4.11 as amended 3
ARTICLE II
THE TRUSTEES
The Trustees assent to the modification of the Indenture herein 3
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 1. Original Indenture, as supplemented and amended,
ratified and confirmed 3
SECTION 2. Bonds delivered in exchange or substitution need
not bear notation 3
SECTION 3. This Supplemental Indenture may be executed in
counterparts 3
SECTION 4. Rights conferred only on holder of bonds, Company
and Trustees 3
SECTION 5. Effectiveness of this Supplemental Indenture 4
TESTIMONIUM 4
SIGNATURES AND SEALS 4
ACKNOWLEDGMENTS 7
1 - This table of contents is not a part of the annexed Supplemental
Indenture as executed.
THIRTIETH SUPPLEMENTAL INDENTURE, dated as of July 1,
1999 between The Empire District Electric Company, a corporation
organized and existing under the laws of the State of Kansas
(hereinafter called the "Company"), party of the first part, and
Xxxxxx Trust and Savings Bank, a corporation organized and
existing under the laws of the State of Illinois and having its
principal place of business at 000 Xxxx Xxxxxx Xxxxxx, xx xxx
Xxxx xx Xxxxxxx, Xxxxxxxx, and State Street Bank and Trust
Company of Missouri, N.A., a national banking association
organized under the laws of the United States of America, and
having its principal corporate trust office located in St. Louis,
MO (successor to Mercantile Bank of Western Missouri, Joplin, MO
as set out in Resignation and Appointment Agreement dated July
28, 1997, recorded with the Recorder of Deeds in Carthage, MO and
successor at Book 1558 Page 502-509.) (hereinafter sometimes
called respectively the "Principal Trustee" and the "Missouri
Trustee" and together the "Trustees" and each thereof a
"Trustee"), as Trustees, parties of the second part.
[WHEREAS the Company has heretofore executed and
delivered to the Trustees its Indenture of] 2 Mortgage and Deed of
Trust, dated as of September 1, 1944 (hereinafter sometimes
referred to as the "Original Indenture"), to secure an issue of
First Mortgage Bonds of the Company, issuable in series, and
created thereunder a series of bonds designated as First Mortgage
Bonds, 3-1/2% Series due 1969, being the initial series of bonds
issued under the Original Indenture; and
WHEREAS the Company has heretofore executed and
delivered to the Trustees twenty-nine Supplemental Indentures
supplemental to the Original Indenture as follows:
Title Dated
First Supplemental Indenture as of June 1, 1946
Second Supplemental Indenture as of January 1, 1948
Third Supplemental Indenture as of December 1, 1950
Fourth Supplemental Indenture as of December 1, 1954
Fifth Supplemental Indenture as of June 1, 1957
Sixth Supplemental Indenture as of February 1, 1968
Seventh Supplemental Indenture as of April 1, 1969
Eighth Supplemental Indenture as of May 1, 1970
Ninth Supplemental Indenture as of July 1, 1976
Tenth Supplemental Indenture as of November 1, 1977
Eleventh Supplemental Indenture as of August 1, 1978
Twelfth Supplemental Indenture as of December 1, 1978
Thirteenth Supplemental Indenture as of November 1, 1979
Fourteenth Supplemental Indenture as of September 15, 1983
Fifteenth Supplemental Indenture as of October 1, 1988
Sixteenth Supplemental Indenture as of November 1, 1989
Seventeenth Supplemental Indenture as of December 1, 1990
Eighteenth Supplemental Indenture as of July 1, 1992
Nineteenth Supplemental Indenture as of May 1, 1993
Twentieth Supplemental Indenture as of June 1, 1993
Twenty-First Supplemental Indenture as of October 1, 1993
Twenty-Second Supplemental Indenture as of November 1, 1993
Twenty-Third Supplemental Indenture as of November 1, 1993
Twenty-Fourth Supplemental Indenture as of March 1, 1994
Twenty-Fifth Supplemental Indenture as of November 1, 1994
Twenty-Sixth Supplemental Indenture as of April 1, 1995
Twenty-Seventh Supplemental Indenture as of June 1, 1995
Twenty-Eighth Supplemental Indenture as of December 1, 1996
Twenty-Ninth Supplemental Indenture . as of April 1, 1998
2 - Bracketed language was unintentionally omitted from the originally
executed copies of this Supplemental Indenture.
some for the purpose of creating an additional series of bonds
and of conveying additional property of the Company, and some for
the purpose of modifying or amending provisions of the Original
Indenture (the Original Indenture, all said Supplemental
Indentures and (except where the context otherwise requires) this
Supplemental Indenture are herein collectively called the
"Indenture"); and
WHEREAS none of the Bonds issued under the First
through Thirteenth or the Fifteenth, Sixteenth or Nineteenth
Supplemental Indentures are outstanding as of the date hereof:
and
WHEREAS in each of the Seventeenth, Eighteenth,
Twentieth through Twenty-Third and Twenty-Fifth through Twenty-
Ninth Supplemental Indentures (collectively, the "Applicable
Supplemental Indentures"), under which the Bonds of the 9-3/4%
Series due 2020, the 7-1/2% Series due 2002, the 7-1/4% Series
due 2028, the 7% Series due 2023, the 5.30% Pollution Control
Series due 2013, the 5.20% Pollution Control Series due 2013, the
8-1/8% Series due 2009, the 7.60% Series due 2005, the 7-3/4%
Series due 2025, the 7.20% Series due 2016 and the 6.50% Series
due 2010 were issued and under which series of Bonds are
currently outstanding, the Company agreed that the covenant set
forth in Section 4.11 of the Original Indenture would continue in
effect for so long as any Bonds of the particular series issued
under such Supplemental Indenture were outstanding: and
WHEREAS pursuant to Article 15 of the Original
Indenture and in accordance with the provisions, terms and
conditions thereof, the modification of the Indenture hereinbelow
set forth has been duly made, the same having been made by the
written consent of the holders of at least 60% in aggregate
principal amount of the Bonds entitled to consent with respect to
such modification, which modification was duly approved by the
Company as evidenced by a certified resolution of the Board of
Directors filed with the Principal Trustee; and
WHEREAS, Section 14.01 of the Original Indenture
provides that the Company and the Trustees may enter into
indentures supplemental to the Original Indenture, which
thereafter shall form a part thereof, to give effect to actions
taken by bondholders pursuant to the provisions of Article 15 of
the Original Indenture, and Sections 15.09 and 15.10 of the
Original Indenture provide that instruments supplemental to the
Original Indenture embodying any modifications or alterations of
the Indenture made by written consent of bondholders may be
executed by the Trustees and the Company; and
WHEREAS the Company and the Trustees desire to execute
this Supplemental Indenture embodying the modifications of the
Indenture made and approved as aforesaid; and
WHEREAS the Board of Directors of the Company has
authorized the Company to enter into this Thirtieth Supplemental
Indenture (herein sometimes referred to as "this Thirtieth
Supplemental Indenture" or "this Supplemental Indenture") for the
purpose of embodying the modification of the Indenture made and
approved as aforesaid; and
WHEREAS the Company represents that all acts and things
necessary have happened, been done, and been performed, to make
this Supplemental Indenture a valid and binding instrument, in
accordance with its terms:
NOW, THEREFORE, THIS THIRTIETH SUPPLEMENTAL INDENTURE
WITNESSETH: That The Empire District Electric Company, the
Company herein named, in consideration of the premises and of One
Dollar ($1.00) to it duly paid by the Trustees at or before the
ensealing and delivery of these presents, the receipt whereof is
hereby acknowledged, the Company and the Trustees hereby agree as
follows.
ARTICLE I
Modification of Indenture
Section 1. Section 4.11 of the Indenture is hereby
amended so as to delete the following sentence, which is the last
sentence of Section 4.11 of the Original Indenture:
"Anything herein to the contrary notwithstanding, in
the event that pursuant to the provisions of Article 12
a successor corporation shall have succeeded to the
rights and liabilities of the Company hereunder, the
date of such succession shall, for the purpose of the
performance of this covenant thereafter, be substituted
in lieu and in place of the dates August 31, 1944 and
September 1, 1944 wherever said dates or either of them
are used in this 4.11, and such successor corporation
shall be deemed to have assumed said covenant modified
as to dates as aforesaid."
Section 2. Each of the Applicable Supplemental
Indentures shall be construed to continue in effect the covenant
set forth in Section 4.11 of the Original Indenture as amended
hereby.
ARTICLE II
The Trustees
The Trustees hereby assent to the amendment and
modification of the Indenture set forth in Article I hereof.
ARTICLE III
Miscellaneous Provisions
Section 1. The Original Indenture as heretofore and
hereby supplemented and amended is in all respects ratified and
confirmed; and the Original Indenture, this Supplemental
Indenture and all other indentures supplemental to the Original
Indenture shall be read, taken and construed as one and the same
instrument. Neither the execution of this Supplemental Indenture
nor anything herein contained shall be construed to impair the
lien of the Original Indenture as heretofore supplemented on any
of the property subject thereto, and such lien shall remain in
full force and effect as security for all bonds now outstanding
or hereafter issued under the Indenture. All terms defined in
Article 1 of the Original Indenture, as heretofore supplemented,
for all purposes of this Supplemental Indenture, shall have the
meanings therein specified, unless the context otherwise
requires.
Section 2. Bonds authenticated and delivered after the
date hereof in exchange or substitution for Bonds of a series
outstanding on the date hereof need not bear a notation of the
amendment and modification of the Indenture provided for herein.
Section 3. This Supplemental Indenture may be
simultaneously executed in any number of counterparts, and all
said counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
Section 4. Nothing in this Supplemental Indenture
contained, shall, or shall be construed to, confer upon any
person other than a holder of bonds issued under the Indenture,
the Company and the Trustees any right or interest to avail
himself of any benefit under any provision of the Indenture, as
heretofore supplemented and amended, or of this Supplemental
Indenture.
Section 5. Notwithstanding anything herein to the
contrary, this Supplemental Indenture and the amendment and
modification of the Indenture provided for herein shall not
become effective until (and shall become effective immediately
after) the merger of the Company with and into UtiliCorp United
Inc. pursuant to the Agreement and Plan of Merger dated as of May
10, 1999 between such parties, as the same may be amended or
supplemented, has become effective (which shall be the date on
which the certificate of merger is duly filed with the Secretary
of State of the State of Delaware or at such later date as is
agreed to by the Company and UtiliCorp United Inc. and specified
in the certificate of merger); provided, however, that if the
merger has not become effective by May 19, 2005, then this
Supplemental Indenture and the amendment and modification
provided for herein shall not become effective and shall be of no
force or effect.
IN WITNESS WHEREOF, The Empire District Electric
Company, party of the first part, has caused its corporate name
to be hereunto affixed and this instrument to be signed by its
President or a Vice President, and its corporate seal to be
hereunto affixed and attested by its Secretary or an Assistant
Secretary for and in its behalf; and Xxxxxx Trust and Savings
Bank and State Street Bank and Trust Company of Missouri, N.A.,
parties of the second part, have each caused its corporate name
to be hereunto affixed, and this instrument to be signed by its
President or a Vice President and its corporate seal to be
hereunto affixed and attested by its Secretary, an Assistant
Secretary, or an Assistant Vice President for and in its behalf,
all as of the day and year first above written.
THE EMPIRE DISTRICT ELECTRIC
COMPANY,
By /s/ X. X.Xxxxxxx
Name: X.X. Xxxxxxx
Title: Vice President-Finance
[Corporate Seal]
Attest:
/s/ X. X. Xxxxxx
Name: X.X. Xxxxxx
Title: Secretary-Treasurer
Signed, sealed and delivered by
THE EMPIRE DISTRICT ELECTRIC
COMPANY in the presence of:
/s/ X. X. Xxxxxx
Name: X.X. Xxxxxx
/s/ G. A. Xxxxx
Name: G.A. Xxxxx
XXXXXX TRUST AND SAVINGS BANK,
as Trustee,
By /s/ X. X.Xxxxxxx
Name: X.X. Xxxxxxx
Title: Vice President
[Corporate Seal]
Attest:
/s/ Xxxxx X. Xxxxxxxx
Name Xxxxx X. Xxxxxxxx
Title: Assistant Secretary
Signed, sealed and delivered by
XXXXXX TRUST AND SAVINGS
BANK in the presence of:
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
STATE STREET BANK AND TRUST
COMPANY
OF MISSOURI,N.A.,
as Trustee,
By /s/ X. Xxxxxxxx
Name X. Xxxxxxxx
Title: Assistant Vice President
[Corporate Seal]
Attest:
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
Signed, sealed and delivered by
STATE STREET BANK AND TRUST
COMPANY OF MISSOURI, N.A.
in the presence of:
/s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
State of Missouri )
) SS.:
County of Jasper )
Be It Remembered, and I do hereby certify, that on this
1st day of July, 1999, before me, a Notary Public in and for the
County and State aforesaid, personally appeared X.X. Xxxxxxx, the
Vice President-Finance of The Empire District Electric Company, a
Kansas corporation, and X.X. Xxxxxx, the Secretary-Treasurer of
said corporation, who are both to me personally known, and both
personally known to me to be such officers and to be the
identical persons whose names are subscribed to the foregoing
instrument as such Vice President-Finance and Secretary-
Treasurer, respectively, and as the persons who subscribed the
name and affixed the seal of said The Empire District Electric
Company, one of the makers thereof, to the foregoing instrument
as its Vice President-Finance and Secretary-Treasurer, and they
each acknowledged to me that they, being thereunto duly
authorized, executed the same for the uses, purposes and
consideration therein set forth and expressed, and in the
capacities therein stated, as their free and voluntary act and
deed, and as the free and voluntary act and deed of said
corporation.
And the said X.X. Xxxxxxx and X.X. Xxxxxx, being each
duly sworn by me, severally deposed and said: that they reside in
the City of Joplin, Missouri and Neosho, Missouri, respectively;
that they were at that time Vice President-Finance and Secretary-
Treasurer, of said corporation; that they knew the corporate seal
of said corporation, and that the seal affixed to said instrument
was such corporate seal, and was thereto affixed by said
Secretary-Treasurer, and the said instrument was signed by said
Vice President-Finance, in pursuance of the power and authority
granted them by the By-Laws of said corporation, and by authority
of the Board of Directors thereof.
In Testimony Whereof, I have hereunto set my hand and
affixed my official and notarial seal at my office in said County
and State the day and year last above written.
My commission expires April 8, 2003.
[Notary Seal]
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Notary Public
State of Illinois )
) SS.:
County of Cook )
Be It Remembered, and I do hereby certify, that on the
1st day of July, 1999, before me, a Notary Public in and for the
County and State aforesaid, personally appeared X.X. Xxxxxxx,
Vice President of Xxxxxx Trust and Savings Bank, an Illinois
corporation, and Xxxxx X. Xxxxxxxx, Assistant Secretary of said
corporation, who are both to me personally known, and both
personally known to me to be such officers and to be the
identical persons whose names are subscribed to the foregoing
instrument as such Vice President and Assistant Secretary,
respectively, and as the persons who subscribed the name and
affixed the seal of said Xxxxxx Trust and Savings Bank, one of
the makers thereof, to the foregoing instrument as its Vice
President and Assistant Secretary, and they each acknowledged to
me that they, being thereunto duly authorized, executed the same
for the uses, purposes and consideration therein set forth and
expressed, and in the capacities therein stated, as their free
and voluntary act and deed, and as the free and voluntary act and
deed of said corporation.
And the said X.X. Xxxxxxx and Xxxxx X. Xxxxxxxx, being
each duly sworn by me, severally deposed and said: that they
reside in Chicago, Illinois, that they were at that time
respectively Vice President and Assistant Secretary, of said
corporation; that they knew the corporate seal of said
corporation, and that the seal affixed to said instrument was
such corporate seal, and was thereto affixed by said Assistant
Secretary, and the said instrument was signed by said Vice
President, in pursuance of the power and authority granted them
by the By-Laws of said corporation, and by authority of the Board
of Directors thereof.
In Testimony Whereof, I have hereunto set my hand and
affixed my official and notarial seal at my office in said County
and State the day and year last above written.
My commission expires August 13, 2001.
[Notary Seal]
/s/ X. Xxxxxxx
X. Xxxxxxx
Notary Public
State of Missouri )
) SS.:
City of St. Louis )
Be It Remembered, and I do hereby certify, that on this
1st day of July, 1999, before me, a Notary Public in and for the
City and State aforesaid, personally appeared X. Xxxxxxxx,
Asistant Vice President of State Street Bank and Trust Company of
Missouri, N.A., a national banking association organized under
the laws of the United States of America, and Xxxxxx X. Xxxxx,
Assistant Vice President of said corporation, who are both to me
personally known, and both personally known to me to be such
officers and to be the identical persons whose names are
subscribed to the foregoing instrument as such Assistant Vice
Presidents and as the persons who subscribed the name and affixed
the seal of said State Street Bank and Trust Company of Missouri,
N.A., one of the makers thereof, to the foregoing instrument as
its Assistant Vice Presidents, and they each acknowledged to me
that they, being thereunto duly authorized, executed the same for
the uses, purposes and consideration therein set forth and
expressed, and in the capacities therein stated, as their free
and voluntary act and deed, and as the free and voluntary act and
deed of said corporation.
And the said X. Xxxxxxxx and Xxxxxx X. Xxxxx, being
each duly sworn by me, severally deposed and said: that they
reside in the City of Highland, Illinois and St Louis, Missouri,
respectively; that they were at the time Assiatant Vice
Presidents of said corporation; that they knew the corporate seal
of said corporation, and that the seal affixed to said instrument
was such corporate seal, and was thereto affixed by said
Assistant Vice President, and the said instrument was signed by
said Assistant Vice President, in pursuance of the power and
authority granted them by the By-Laws of said corporation, and by
authority of the Board of Directors thereof.
In Testimony Whereof, I have hereunto set my hand and
affixed my official and notarial seal at my office in said City
and State the day and year last above written.
My commission expires April 2, 2001.
[Notary Seal]
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Notary Public
