Execution Copy
____________________________________________________________
____________________________________________________________
UTILICORP UNITED INC.
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
____________________
6.875% Senior Notes Due 2004
____________________
NINTH SUPPLEMENTAL INDENTURE
Dated as of September 1, 1997
____________________
____________________________________________________________
____________________________________________________________
NINTH SUPPLEMENTAL INDENTURE, dated as of September 1, 1997 (herein
called the "Ninth 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
WHEREAS, the Company desires to create a series of the Securities
in an aggregate principal amount of $150,000,000 to be
designated the "6.875% Senior Notes Due 2004" (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 Ninth 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 Ninth 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; 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 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 Ninth Supplemental Indenture for the benefit of the Holders of the
Senior Notes;
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NOW, THEREFORE, THIS NINTH 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 "6.875% Senior Notes Due 2004" 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 Ninth 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 $150,000,000.
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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 Notse are herein incorporated by
reference and are part of this Ninth 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 00000-0126 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.
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ARTICLE THREE
MISCELLANEOUS
Section 301. EXECUTION OF SUPPLEMENTAL INDENTURE. This Ninth
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Ninth 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 Ninth 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 Ninth 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
Ninth 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 NINTH SUPPLEMENTAL INDENTURE. Nothing in
this Ninth Supplemental Indenture or in the Senior
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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 Ninth Supplemental
Indenture.
Section 307. GOVERNING LAW. This Ninth 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 Ninth 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth
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
--------------------------
Name: Xxxx X. Xxxx
Title: Vice President,
Finance
Attest:
/s/ Xxxxx Xxxxxx
--------------------------------
Title: Asst. Treasurer
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
[Seal] By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Supervisor
Attest:
/s/ Xxxxxxx Xxxxxxxxxx
----------------------------------
Title: Trust Officer
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STATE OF MISSOURI )
) ss.:
COUNTY OF XXXXXXX )
On the 1st day of September, 1997, 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-Finance 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/ Xxxxx Xxxx
-----------------------
Notary Public,
State of Missouri
STATE OF NEW YORK )
) ss.:
COUNTY OF QUEENS )
On the 6th day of October, 1997, before me personally came Xxxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is Supervisor 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/ Xxxxxxxx X. Xxxxxxxx, Xx.
-----------------------------
Notary Public,
State of New York
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.
6.875% SENIOR NOTE DUE 2004
No. 918005 AP4 $
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 October 1, 2004, and to pay interest thereon from October 1, 1997, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on April 1 and October 1 in each year, commencing
April 1, 1998, 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 March 15 or September 15 (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
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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UTILICORP UNITED INC.
Dated: By:___________________________
Title:
________________
Attest:
______________________________
[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:____________________________
Authorized Officer
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[FORM OF REVERSE OF SENIOR NOTE]
UTILICORP UNITED INC.
6.875% SENIOR NOTE DUE 2004
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 $150,000,000.
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.
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 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.
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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.
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