Exhibit 4.1
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WESTERN RESOURCES, INC.
TO
BNY MIDWEST TRUST COMPANY
as Trustee
(as Successor to
XXXXXX TRUST AND SAVINGS BANK)
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THIRTY-FIFTH SUPPLEMENTAL INDENTURE
Dated as of May 10, 2002
First Mortgage Bonds, 7 7/8% Series Due 2007
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TABLE OF CONTENTS/a/
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Page
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Parties............................................................................................ 1
Recitals........................................................................................... 1
Granting Clause.................................................................................... 4
Habendum........................................................................................... 6
Exceptions and Reservations........................................................................ 6
Grant in Trust..................................................................................... 6
General Covenant................................................................................... 6
ARTICLE I
DESCRIPTION OF BONDS OF THE
2007 SERIES
SECTION 1. General Description of Bonds of the 2007 Series....................................... 6
SECTION 2. Denominations of Bonds of the 2007 Series and privilege of exchange................... 7
SECTION 3. Form of Bonds of the 2007 Series...................................................... 7
SECTION 4. Execution and Form of Temporary Bonds of the 2007 Series.............................. 14
ARTICLE II
ISSUE OF BONDS OF THE 2007 SERIES
SECTION 1. Limitations as to Principal Amount.................................................... 14
SECTION 2. Execution and Delivery of Bonds of the 2007 Series.................................... 14
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/a/ Note: The Table of Contents is not part of this Supplemental Indenture and
should not be considered as such. It is included only for purposes of
convenience.
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Page
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ARTICLE III
REDEMPTION AND REPURCHASE UPON CHANGE OF CONTROL
SECTION 1. Optional Redemption.................................................................... 14
SECTION 2. Repurchase at the Option of Holders Upon a Change of Control........................... 15
ARTICLE IV
ADDITIONAL COVENANTS
SECTION 1. Title to mortgaged property............................................................ 17
SECTION 2. To retire certain portions of Bonds upon release of all or substantially all of
the electric properties............................................................ 18
ARTICLE V
AMENDMENTS TO RATIO OF BONDS ISSUABLE TO PROPERTY ADDITIONS
AND OF CERTAIN OTHER RATIOS. AMENDMENT TO NET EARNINGS
TEST. USE OF FACSIMILE SIGNATURES. AMENDMENT OF ARTICLE
XV. RESERVATION OF RIGHT TO AMEND ARTICLE VII
SECTION 1. So long as Bonds of the 2007 Series remain outstanding:
Bonds issuable on basis only of 60% of net bondable value of property additions
not subject to an unfunded prior lien............................................... 18
Amendment of definition of net bondable value of property additions not subject
to an unfunded prior lien........................................................... 19
Monies deposited with Trustee under Section 5(a) of Article
III of the Original Indenture may not be withdrawn in an
amount in excess of 60% of net bondable value of property
additions not subject to an unfunded prior lien,
notwithstanding provisions of Section 3(a) of Article
VIII of the Original Indenture...................................................... 19
Amendment of definition of net bondable value of property additions subject to an
unfunded prior lien................................................................. 19
Amendment of covenants in Sections 14 and 16 of Article IV and Section 1 of
Article XII of the Original Indenture with respect to acquisition of property
subject to an unfunded prior lien................................................... 19
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Page
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Definitions: minimum charge for depreciation; net earnings available for
interest, depreciation and property retirement; net earnings of another
corporation available for interest, depreciation and property retirement... 20
Amendment of Articles III, IV and XII of the Original Indenture............... 21
SECTION 2. Facsimile Signatures.......................................................... 21
SECTION 3. Reservation of Right to Amend Article VII..................................... 21
SECTION 4. Reservation of Right to Delete certain requirements and conditions............ 24
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 1. Acceptance of Trust........................................................... 25
SECTION 2. Responsibility and Duty of Trustee............................................ 25
SECTION 3. Parties to include successors and assigns..................................... 25
SECTION 4. Benefits restricted to parties and to holders of Bonds and coupons............ 25
SECTION 5. Execution in counterparts..................................................... 25
SECTION 6. Titles of Articles not part of the Thirty-Fifth Supplemental Indenture........ 25
TESTIMONIUM ............................................................................... S-1
SIGNATURES AND SEALS....................................................................... S-1
ACKNOWLEDGMENTS............................................................................ S-2
APPENDIX A
DESCRIPTION OF PROPERTIES
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THIRTY-FIFTH SUPPLEMENTAL INDENTURE, dated as of the 10th day of May, Two
Thousand and Two, made by and between Western Resources, Inc., formerly The
Kansas Power and Light Company, a corporation organized and existing under the
laws of the State of Kansas (hereinafter called the "Company"), party of the
first part, and BNY Midwest Trust Company, an Illinois trust company whose
mailing address is 0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000
(hereinafter called the "Trustee"), as Trustee (as successor to Xxxxxx Trust and
Savings Bank), under the Mortgage and Deed of Trust dated July 1, 1939,
hereinafter mentioned, party of the second part;
WHEREAS, the Company has heretofore executed and delivered to the Trustee
its Mortgage and Deed of Trust dated July 1, 1939 (hereinafter referred to as
the "Original Indenture"), to provide for and to secure the issue of First
Mortgage Bonds of the Company, issuable in series, and to declare the terms and
conditions upon which the Bonds (as defined in the Original Indenture) are to be
issued thereunder; and
WHEREAS, the Company has heretofore executed and delivered to the Trustee
Thirty-Four Supplemental Indentures supplemental to said Original Indenture, of
which Thirty-Two provided for the issuance thereunder of series of the Company's
First Mortgage Bonds, and there is set forth below information with respect to
such Supplemental Indentures as have provided for the issuance of Bonds, and the
principal amount of Bonds which remain outstanding as of May 10, 2002.
Series of First Principal Principal
Mortgage Bonds Amount Amount
Supplemental Indenture Date Provided For Issued Outstanding
----------------------------- ----------------- --------------- ----------- -----------
Supplemental Indenture July 1, 1939 3-1/2% Series $26,500,000 None
Due 1969
Second Supplemental Indenture April 1, 1949 2-7/8% Series 10,000,000 None
Due 1979
Fourth Supplemental Indenture October 1, 1949 2-3/4% Series 6,500,000 None
Due 1979
Fifth Supplemental Indenture December 1, 1949 2-3/4% Series 32,500,000 None
Due 1984
Seventh Supplemental December 1, 1951 3-1/4% Series 5,250,000 None
Indenture Due 1981
Eighth Supplemental Indenture May 1, 1952 3-1/4% Series 4,750,000 None
Due 1982
Ninth Supplemental Indenture October 1, 1954 3-1/8% Series 8,000,000 None
Due 1984
Tenth Supplemental Indenture September 1, 1961 4-3/4% Series 13,000,000 None
Due 1991
Eleventh Supplemental April 1, 1969 7-5/8% Series 19,000,000 None
Indenture Due 1999
Twelfth Supplemental September 1, 1970 8-3/4% Series 20,000,000 None
Indenture Due 2000
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Series of First Principal Principal
Mortgage Bonds Amount Amount
Supplemental Indenture Date Provided For Issued Outstanding
--------------------------- ----------------- ---------------- ----------- -----------
Thirteenth Supplemental February 1, 1975 8-5/8% Series 35,000,000 None
Indenture Due 2005
Fourteenth Supplemental May 1, 1976 8-5/8% Series 45,000,000 None
Indenture Due 2006
Fifteenth Supplemental April 1, 1977 5.90% Pollution 32,000,000 None
Indenture Control Series
Due 2007
Sixteenth Supplemental June 1, 1977 8-1/8% Series 30,000,000 None
Indenture Due 2007
Seventeenth Supplemental February 1, 1978 8-3/4% Series 35,000,000 None
Indenture Due 2008
Eighteenth Supplemental January 1, 1979 6-3/4% Pollution 45,000,000 None
Indenture Control Series
Due 2009
Nineteenth Supplemental May 1, 1980 8-1/4% Pollution 45,000,000 None
Indenture Control Series
Due 1983
Twentieth Supplemental November 1, 1981 16.95% Series 25,000,000 None
Indenture Due 1988
Twenty-First Supplemental April 1, 1982 15% Series 60,000,000 None
Indenture Due 1992
Twenty-Second Supplemental February 1, 1983 9-5/8% Pollution 58,500,000 None
Indenture Control Series
Due 2013
Twenty-Third Supplemental July 1, 1986 8-1/4% Series 60,000,000 None
Indenture Due 1996
Twenty-Fourth Supplemental March 1, 1987 8-5/8% Series 50,000,000 None
Indenture Due 2017
Twenty-Fifth Supplemental October 15, 1988 9.35% Series 75,000,000 None
Indenture Due 1998
Twenty-Sixth Supplemental February 15, 1990 8-7/8% Series 75,000,000 None
Indenture Due 2000
Twenty-Seventh Supplemental March 12, 1992 7.46% Demand 370,000,000 None
Indenture Series
Twenty-Eighth Supplemental July 1, 1992 7-1/4% Series 125,000,000 None
Indenture Due 1999
8-1/2% Series 125,000,000 125,000,000
Due 2022
Twenty-Ninth Supplemental August 20, 1992 7-1/4% Series 100,000,000 None
Indenture Due 2002
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Series of First Principal Principal
Mortgage Bonds Amount Amount
Supplemental Indenture Date Provided For Issued Outstanding
-------------------------- ---------------- ------------------ ----------- -----------
Thirtieth Supplemental February 1, 1993 6% Pollution 58,500,000 58,340,000
Indenture Control Revenue
Refunding Series
Due 2033
Thirty-First Supplemental April 15, 1993 7.65% Series 100,000,000 100,000,000
Indenture Due 2023
Thirty-Second Supplemental April 15, 1994 7-1/2% Series 75,500,000 75,500,000
Indenture Pollution Control
Revenue Refunding
Series Due 2032
Thirty-Third Supplemental August 11, 1997 6-7/8% Convertible 370,000,000 None
Indenture Series Due 2004
7-1/8% Convertible 150,000,000 None
Series Due 2009
Thirty-Fourth Supplemental June 28, 2000 9-1/2% Series 397,800,000 None
Indenture Due 2003
; and
WHEREAS, the Company is entitled at this time to have authenticated and
delivered additional bonds in substitution for refundable Bonds, upon compliance
with the provisions of Article III of the Original Indenture, as amended; and
WHEREAS, the Company desires by this Thirty-Fifth Supplemental Indenture
(hereinafter referred to as this "Supplemental Indenture") to supplement the
Original Indenture and to provide for the creation of a new series of bonds
under the Original Indenture to be designated "First Mortgage Bonds, 7-7/8%
Series Due 2007"; 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 Company in the exercise of the powers and authority conferred
upon and reserved to it under the provisions of the Original Indenture and
indentures supplemental thereto, and pursuant to appropriate resolutions of its
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
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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 sum of One
Dollar duly paid by the Trustee to the Company at or before the time of the
execution of these presents, 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 as amended by all indentures
supplemental thereto (hereinafter sometimes collectively called the "Indenture")
according to their tenor, purport and effect, and to declare certain terms and
conditions upon and subject to which Bonds are to be issued and secured, the
Company has executed and delivered this Supplemental Indenture, and by these
presents grants, bargains, sells, warrants, aliens, releases, conveys, assigns,
transfers, mortgages, pledges, sets over and ratifies and confirms unto BNY
Midwest Trust Company, as Trustee, and to its successors in trust under the
Indenture forever, all and singular the following described properties (in
addition to all other properties heretofore specifically subjected to the lien
of the Indenture and not heretofore released from the lien thereof), that is to
say:
FIRST.
All and singular the rents, real estate, chattels real, easements,
servitudes, and leaseholds of the Company, or which, subject to the provisions
of Article XII of the Original Indenture, the Company may hereafter acquire,
including, among other things, the property described in Appendix A hereto under
the caption "First", which description is hereby incorporated herein by
reference and made a part hereof as if fully set forth herein, together with all
improvements of any type located thereon.
Also all power houses, plants, buildings and other structures, dams, dam
sites, substations, heating plants, gas works, holders and tanks, compressor
stations, gasoline extraction plants, together with all and singular the
electric heating, gas and mechanical appliances appurtenant thereto of every
nature whatsoever, now owned by the Company or which it may hereafter acquire,
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, water, gas
and other agencies for light, heat, cold or power or any other purpose
whatsoever.
SECOND.
Also all transmission and distribution systems used for the transmission
and distribution of electricity, steam, water, gas and other agencies for light,
heat, cold or power, or any other purpose whatever, whether underground or
overhead or on the surface or otherwise of the Company, or which, subject to the
provisions of Article XII of the Original Indenture, the Company may hereafter
acquire, including all poles, posts, wires, cables, conduits, mains, pipes,
tubes, drains, furnaces, switchboards, transformers, insulators, meters, lamps,
fuses, junction boxes, water pumping stations,
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regulator stations, town border metering stations and other electric, steam,
water and gas fixtures and apparatus.
THIRD.
Also all franchises and all permits, ordinances, easements, privileges and
immunities and licenses, all rights to construct, maintain and operate overhead,
surface and underground systems for the distribution and transmission of
electricity, gas, water or steam for the supply to itself or others of light,
heat, cold or power or any other purpose whatsoever, all rights-of-way, all
waters, water rights and flowage rights and all grants and consents, now owned
by the Company or, subject to the provisions of Article XII of the Original
Indenture, which it may hereafter acquire.
Also 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.
FOURTH.
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.
FIFTH.
Also any and all property of any kind or description which may from time to
time after the date of the Original Indenture by delivery or by writing of any
kind be conveyed, mortgaged, pledged, assigned or transferred to the Trustee by
the Company or by any person, copartnership or corporation, with the consent of
the Company or otherwise, and accepted by the Trustee, to be held as part of the
mortgaged property; and the Trustee is hereby authorized to accept and receive
any such property and any such conveyance, mortgage, pledge, assignment and
transfer, as and for additional security hereunder, and to hold and apply any
and all such property subject to and in accordance with the terms and provisions
upon which such conveyance, mortgage, pledge, assignment or transfer shall be
made.
SIXTH.
Together with all and singular, the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and remainders,
tolls, rents, revenues, issues, income, products and profits thereof, and all
the estate, right, title, interest and claim whatsoever, at law and in equity,
which the Company now has or may hereafter acquire in and to the aforesaid
property and franchises and every part and parcel thereof.
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EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, all properties of the character
excepted from the lien of the Original Indenture.
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 hereinabove referred
to, to existing leases other than leases which by their terms are subordinate to
the lien of the Indenture, 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 herein before 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 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 the be issued under the Indenture as follows:
ARTICLE I
DESCRIPTION OF BONDS OF THE
2007 SERIES
SECTION 1. The 2007 series of Bonds to be executed, authenticated and
delivered under and secured by the Original Indenture shall be designated as
"First Mortgage Bonds, 7 7/8% Series Due 2007" of the Company (herein called
"Bonds of the 2007 Series"). The Bonds of the 2007 Series 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 and subject to all the terms, conditions and covenants of this
Supplemental Indenture.
Bonds of the 2007 Series shall mature May 1, 2007 and shall bear interest
at the rate of seven and seven-eighths percent (7 7/8%) per annum payable
semi-annually on the first day of May and November in each year, commencing
November 1, 2002. Every Bond of the 2007 Series shall be
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dated the date of authentication except that, notwithstanding the provisions of
Section 6 of Article II of the Original Indenture, if any Bond of the 2007
Series shall be authenticated at any time subsequent to the record date (as
hereinafter in this Section defined) for any interest payment date but prior to
the day following such interest payment date, it shall be dated as of the day
following such interest payment date, provided, however, if at the time of
authentication of any Bond of the 2007 Series interest shall be in default on
any Bonds of the 2007 Series, such Bond shall be dated as of the day following
the interest payment date to which interest has previously been paid in full or
made available for payment in full on outstanding Bonds of the 2007 Series, as
the case may be, or, if no interest has been paid or made available for payment,
as of the date of initial authentication and delivery of such Bond. Every Bond
of the 2007 Series shall bear interest from the May 1, or November 1, next
preceding the date thereof, unless such Bond shall be dated prior to November 1,
2002, in which case it shall bear interest from May 10, 2002.
The person in whose name any Bond of the 2007 Series is registered at the
close of business on any record date with regard to any interest payment date
shall be entitled to receive the interest payable thereon on such interest
payment date notwithstanding the cancellation of such Bond upon the transfer or
exchange thereof subsequent to such record date and prior to the day following
such interest payment date, unless 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. The term "record date" as used
in this Section with regard to any semiannual interest payment date shall mean
the close of business on the tenth day next preceding such interest payment
date, or if such tenth day is not a business day, the business day next
preceding such tenth day. The Bonds of the 2007 Series shall be payable as to
principal, premium, if any, 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, at the agency of the Company in the City of Chicago, Illinois, or
at the option of the holder thereof at the agency of the Company in the Borough
of Manhattan, The City of New York, provided that at the option of the Company
interest may be paid by check mailed to the holder at such holder's registered
address.
SECTION 2. The Bonds of the 2007 Series shall be registered bonds without
coupons of the denominations of $1,000 and of any multiples of $1,000, numbered
consecutively from R 1 upwards. Bonds of the 2007 Series may each be
interchanged for other bonds within the same Series in authorized denominations
and in the same aggregate principal amounts, without charge, except for any tax
or governmental charge imposed in connection with such interchange.
SECTION 3. The Bonds of the 2007 Series, and the Trustee's Certificate with
respect thereto, shall be substantially in the following forms, respectively:
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[FORM OF BOND OF THE 2007 SERIES]
CUSIP
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WESTERN RESOURCES, INC.
(Incorporated under the laws of the State of Kansas)
FIRST MORTGAGE BOND, 7 7/8% SERIES DUE 2007
DUE May 10, 2007
No. $
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WESTERN RESOURCES, INC., a corporation organized and existing under the
laws of the State of Kansas (hereinafter called 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 or
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registered assigns, on the 1st day of May, 2007, the sum of
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Dollars 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 first day of May or November
next preceding the date of this Bond (the "Bonds") next preceding the date
thereof, unless no interest has been paid on this Bond, in which case from May
10, 2002, at the rate of seven and seven-eighths percent (7 7/8%) per annum,
payable semiannually, on the first days of May and November in each year,
commencing November 1, 2002, until maturity, or, if this Bond shall be duly
called for redemption or submitted for repurchase, until the redemption date or
repurchase date, as the case may be, or, if the Company shall default in the
payment of the principal or premium hereof, until the Company's obligation with
respect to the payment of such principal or premium shall be discharged as
provided in the Indenture hereinafter mentioned. The interest payable on any
interest payment date as aforesaid will be paid to the person in whose name this
Bond is registered on any at the close of business on the tenth day next
preceding such interest payment date, or if such tenth day is not a business
day, the business day next preceding such tenth day (the "record date"), unless
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 this Bond is registered on the date of payment of such defaulted
interest. Principal of, premium, if any, and interest on, this Bond are payable
at the agency of the Company in the City of Chicago, Illinois in immediately
available funds, or at the option of the holder thereof at the agency of the
Company in the Borough of Manhattan, The City of New York, provided that at the
option of the Company interest may be paid by check mailed to the holder at such
holder's registered address.
The person in whose name this Bond is registered is entitled to the
benefits of a Registration Rights Agreement, dated as of May 10, 2002, among the
Company and the Initial Purchasers named therein (the "Registration Agreement").
Capitalized terms used in this paragraph but not defined herein have the
meanings assigned to them in the Registration Agreement. In the event that (i)
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neither the Exchange Offer Registration Statement nor the Shelf Registration
Statement has been filed with the Commission on or prior to the 180th day
following the date of the original issuance of the Bond, (ii) the Exchange Offer
Registration Statement has not been declared effective on or prior to the 270th
day following the date of the original issuance of the Bond, (iii) neither the
Registered Exchange Offer has been consummated nor the Shelf Registration
Statement has been declared effective on or prior to the 315th day following the
date of the original issuance of the Bond, or (iv) after either the Exchange
Offer Registration Statement or the Shelf Registration Statement has been
declared effective, such Registration Statement thereafter ceases to be
effective or usable (subject to certain exceptions) in connection with resales
of the Bond in accordance with and during the periods specified in Registration
Agreement (each such event referred to in clauses (i) through (iv) above being
referred to herein as "Registration Default"), interest (the "Special Interest")
shall accrue (in addition to stated interest on the Bonds from and including the
date on which the first such Registration Default shall occur to but excluding
the date on which all Registration Defaults have been cured, at a rate per annum
equal to 0.50% of the principal amount of the Bonds. Special Interest, if any,
will be payable in cash on each interest payment date to the persons in whose
name this Bond is registered on the applicable record date as provided above.
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
a Mortgage and Deed of Trust, dated July 1, 1939, executed by the Company to BNY
Midwest Trust Company (herein called the "Trustee"), as Trustee (as successor to
Xxxxxx Trust and Savings Bank), as amended by the indentures supplemental
thereto including the thirty-fifth indenture supplemental thereto dated as of
May 10, 2002 (herein called the "Supplemental Indenture"), between the Company
and the Trustee (said Mortgage and Deed of Trust, as so amended, being herein
called the "Indenture"), 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 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. 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
Indenture provided. This Bond is one of a series designated as the "First
Mortgage Bonds, 7 7/8% Series Due 2007" (herein called "Bonds of the 2007
Series") of the Company, issued under and secured by the Indenture executed by
the Company to the Trustee.
To the extent permitted by, and as provided in the Indenture, modifications
or alterations of the Indenture or of any indenture supplemental thereto, and of
the rights and obligations of the Company and of the holders of the Bonds and
coupons, may be made with the consent of the Company by an affirmative vote of
not less than 60% in principal amount of the Bonds entitled to vote then
outstanding, at a meeting of Bondholders called and held as provided in the
Indenture, and by an affirmative vote of not less than 60% in principal 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 Indenture are so affected. No
modification or alteration shall be made which will affect the terms of payment
of the principal of or premium, if any, or interest on, this Bond, which are
unconditional. The Company has reserved the right to make certain amendments to
the Indenture, without any consent or other action by holders of the Bonds of
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this series (i) to the extent necessary from time to time to qualify the
Indenture under the Trust Indenture Act of 1939, (ii) to delete the requirement
that the Company meet a net earnings test as a condition to authenticating
additional Bonds or merging into another company and (iii) to make certain other
amendments which make the provisions for the release of mortgaged property less
restrictive, all as more fully provided in the Indenture and in the Supplemental
Indenture. In addition, once all Bonds issued prior to January 1, 1997 are no
longer outstanding, the Company will be permitted to issue additional Bonds in
an amount equal to 70% of the value of net bondable property additions not
subject to an unfunded prior lien, as provided in the Original Indenture.
This Bond is subject to redemption at any time and from time to time prior
to maturity at the option of the Company at a price determined as provided in
the Supplemental Indenture. Such redemption in every case shall be effected upon
notice given by: (1) first class mail, postage prepaid, at least thirty days and
not more than sixty days prior to the redemption date, to the registered owners
of such Bonds at their addresses as the same shall appear on the transfer
register of the Company; and (2) stating, among other things, the redemption
price and date, in each case, subject to the conditions of and as more fully set
forth in the Indenture.
Upon the occurrence of a Change of Control (as defined in the Supplemental
Indenture), each holder of this Bond shall have the right to require the Company
to repurchase all or any part of such holder's Bonds at a purchase price equal
to 101% of the principal, plus accrued and unpaid interest, if any, to the
purchase date as provided in the Supplemental Indenture. Within 30 days
following any Change of Control, the Company shall cause a notice of the Change
of Control Offer to be delivered in accordance with the procedures set forth in
the Supplemental Indenture.
In case an event of default, as defined in the Indenture, shall occur, the
principal of all of the 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 in certain events be waived by the holders of a
majority in principal amount of the Bonds outstanding.
This Bond is transferable 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 agency of the Company in the City of Chicago, Illinois, and at
the agency of the Company in the Borough of Manhattan, The City of New York,
upon surrender and cancellation of this Bond and on presentation of a duly
executed written instrument of transfer, and thereupon a new registered 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; and this Bond, with or without others of like form and series,
may in like manner be exchanged for one or more new registered Bonds of the same
series of other authorized denominations but of the same aggregate principal
amount; all upon payment of the charges and subject to the terms and conditions
set forth in the Indenture.
No recourse shall be had for the payment of the principal of or premium, if
any, or interest on this Bond, or for any claim based hereon or on the 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, as such, either directly or
-11-
through the Company or any such predecessor or successor corporation, whether 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 Indenture.
No director, officer, employee or stockholder of the Company will have any
liability for any obligations of the Company under the Bonds or Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each holder by accepting a Bond waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Bonds. The waiver may not be effective to waive liabilities under the
federal securities laws. It is the view of the Securities and Exchange
Commission that this type of waiver is against public policy.
This 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 BNY Midwest Trust Company, the Trustee (as successor to Xxxxxx Trust and
Savings Bank) under the Indenture, or a successor trustee thereto under the
Indenture, shall have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, WESTERN RESOURCES, INC. has caused this Bond to be
signed in its name by its Chairman of the Board, President and Chief Executive
Officer or a Vice President, manually or by facsimile, and its corporate seal
(or a facsimile thereof) to be hereto affixed and attested by its Secretary or
an Assistant Secretary, manually or by facsimile.
Dated:
WESTERN RESOURCES, INC.
By
-------------------------------------
Attest:
------------------------------------
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[FORM OF PRIVATE PLACEMENT LEGEND FOR BOND OF THE 2007 SERIES]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, BEFORE THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A)
TO THE COMPANY, (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE BONDS OF THE 2007
SERIES ARE ELIGIBLE FOR RESALE UNDER RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) UNDER OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, OR (E) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S
RIGHT BEFORE ANY SUCH OFFER, SALE OR TRANSFER UNDER CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]/a/
----------
/a/ The above restrictions will not apply to any Bond of the 2007 Series on or
after the "Resale Restriction Termination Date" applicable to such Bond, or
with respect to any Bond which have been sold or otherwise transferred
pursuant to Rule 144A or a registration statement which has been declared
effective under the Securities Act. "Resale Restriction Termination Date"
shall mean the date on which the holding period under Rule 144(k) under the
Securities Act expires with respect to such Bond. Any Bond issued on or
after the Resale Restriction Termination Date need not contain this legend.
-13-
[FORM OF LEGEND FOR GLOBAL SECURITY]
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 THEREOF, THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY SECURITY
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
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
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[FORM OF TRUSTEE'S CERTIFICATE]
This Bond is one of the Bonds, of the series designated herein, described
in the within-mentioned Mortgage and Deed of Trust of July 1, 1939 and
Supplemental Indenture dated as of May 10, 2002.
BNY MIDWEST TRUST COMPANY
As Trustee
By
-------------------------------------
SECTION 4. Until Bonds of the 2007 Series 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, Bonds of the 2007 Series in
temporary form, as provided in Section 9 of Article II of the Original
Indenture.
ARTICLE II
ISSUE OF BONDS OF THE 2007 SERIES
SECTION 1. The total principal amount of Bonds of the 2007 Series which may
be authenticated and delivered hereunder is not limited except as the Original
Indenture and this Supplemental Indenture limit the principal amount of Bonds
which may be issued thereunder.
SECTION 2. Bonds of the 2007 Series for the aggregate principal amount of
$365,000,000 may forthwith 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 receipt by the Trustee of the resolutions, certificates, instruments and
opinions required by Article III and Article XVIII of the Indenture.
ARTICLE III
REDEMPTION AND REPURCHASE UPON CHANGE OF CONTROL
SECTION 1. Optional Redemption.
(1) Optional Redemption. At any time, and from time to time, the Company
may redeem all or any portion of the Bonds of the 2007 Series, after giving the
required notice under the Indenture, at a redemption price equal to the greater
of:
(a) 100% of the principal amount of the Bonds of the 2007 Series to be
redeemed, or
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(b) the sum of the present values of the remaining scheduled payments
of principal and interest thereon discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 50 basis points,
plus, in either case, accrued and unpaid interest, if any, to the redemption
date (subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date).
"Treasury Rate" means, as of any redemption date, the yield to maturity as
of such redemption date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
business days prior to the redemption date (or, if such statistical release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the redemption date to May 1, 2007; provided,
however, that if the period from the redemption date to May 1, 2007 is less than
one year, the weekly average yield on actively traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
(2) Notice of Redemption. Subject to the provisions of Article V of the
Original Indenture, the Company shall cause notice of redemption to be given by
(1) first class mail, postage prepaid, at least thirty days and not more than
sixty days prior to the date of redemption, to the registered owners of such
Bonds of the 2007 Series at their addresses as the same shall appear on the
transfer register of the Company; and (2) stating, among other things, the
redemption price and date. No such redemption may be conditional once notice of
redemption is given.
SECTION 2. Repurchase at the Option of Holders Upon a Change of Control.
(1) Repurchase at the Option of Holders Upon a Change of Control. Upon the
occurrence of a Change of Control (as defined below), each holder of Bonds of
the 2007 Series shall have the right to require the Company to repurchase all or
any part of such holder's Bonds of the 2007 Series pursuant to the offer
described below (the "Change of Control") at a purchase price (the "Change of
Control Purchase Price") equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the purchase date. Capitalized terms
used in the definition of "Change of Control" used but not defined herein have
the meanings assigned to them in the Securities Resolution dated as of May 10,
2002 relating to the issuance of the Company's $400,000,000 Senior Notes 9 3/4%
Due 2007, a copy of which has been filed with the Trustee and is available upon
request.
"Change of Control" means the occurrence of any of the following events:
(a) if any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act or any successor provisions to either
of the foregoing), other than Xxxxxx Industries, Inc., including any group
acting for the purpose of acquiring, holding, voting or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act,
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act, except that a person will be deemed to have "beneficial ownership" of
all shares that any such
-16-
person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
35% or more of the total voting power of the Voting Stock of the Company
(for purposes of this clause (a), such person or group shall be deemed to
beneficially own any Voting Stock of a corporation held by any other
corporation (the "parent corporation") so long as such person or group
beneficially owns, directly or indirectly, in the aggregate a majority of
the total voting power of the Voting Stock of such parent corporation); or
(b) the sale, transfer, assignment, lease, conveyance or other
disposition, directly or indirectly, of all or substantially all the assets
of the Company and any Restricted Subsidiary, considered as a whole (other
than a disposition of such assets as an entirety or virtually as an
entirety to a Wholly Owned Restricted Subsidiary), shall have occurred, or
the Company merges, consolidates or amalgamates with or into any other
Person or any other Person merges, consolidates or amalgamates with or into
the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is reclassified into or exchanged
for cash, securities or other Property, other than any such transaction
where:
(1) the outstanding Voting Stock of the Company is reclassified
into or exchanged for other Voting Stock of the Company or for Voting
Stock of the surviving corporation, and
(2) the holders of the Voting Stock of the Company immediately
prior to such transaction own, directly or indirectly, not less than a
majority of the Voting Stock of the Company or the surviving
corporation immediately after such transaction and in substantially
the same proportion as before the transaction; or
(c) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election or appointment by such
Board of Directors or whose nomination for election by the shareholders of
the Company was approved by a vote of not less than three-fourths of the
directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office; or
(d) the shareholders of the Company shall have approved any plan of
liquidation or dissolution of the Company.
Notwithstanding the above, the proposed merger of the Company with Public
Service Company of New Mexico shall not be deemed a Change of Control.
(2) Notice of Repurchase. Within 30 days following any Change of Control,
the Company shall:
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(a) cause a notice of the Change of Control Offer to be sent at least
once to the Dow Xxxxx News Service or similar business news service in the
United States; and
(b) send, by first-class mail, with a copy to the Trustee, to each
holder of Bonds of the 2007 Series, at such holder's address appearing in
the security register, a notice stating:
(1) that a Change of Control has occurred and a Change of Control
Offer is being made pursuant to Article III, Section 2 of this
Supplemental Indenture, and that all Bonds of the 2007 Series timely
tendered will be accepted for payment;
(2) the Change of Control Purchase Price and the purchase date,
which shall, subject to any contrary requirements of applicable law,
be a business day no earlier than 30 days nor later than 60 days from
the date such notice is mailed;
(3) the circumstances and relevant facts regarding the Change of
Control; and
(4) the procedures that holders of Bonds of the 2007 Series must
follow in order to tender their Bonds of the 2007 Series (or portions
thereof) for payment, and the procedures that holders of Bonds of the
2007 Series must follow in order to withdraw an election to tender
Bonds of the 2007 Series (or portions thereof) for payment.
(3) Compliance with Law. The Company will comply, to the extent applicable,
with the requirements of Section 14(e) of the Securities Exchange Act of 1934
and any other securities laws or regulations in connection with the repurchase
of Bonds of the 2007 Series pursuant to a Change of Control Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of the covenant set forth in Article III, Section 2 of this
Supplemental Indenture, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations
under the covenant set forth therein by virtue of such compliance.
ARTICLE IV
ADDITIONAL 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 initial issue of the Bonds of the 2007 Series, free and
clear of any deed of trust, mortgage, lien, charge or encumbrance thereon or
affecting the title thereto prior to the Indenture, except as set forth in the
granting clauses of the Original Indenture, the
-18-
Twenty-Eighth Supplemental Indenture, the Thirtieth Supplemental Indenture, the
Thirty-First Supplemental Indenture, the Thirty-Second Supplemental Indenture or
this Supplemental Indenture.
SECTION 2. So long as any Bonds of any series originally issued prior to
January 1, 1997 are outstanding, in the event all or substantially all of the
electric properties shall have been released as an entirety from the lien of the
Original Indenture, the Company will, at any time or from time to time within
six months after the date of such release, retire Bonds outstanding under the
Original Indenture in an aggregate principal amount equal to the fair value of
the electric properties so released pursuant to Section 3 of Article VII of the
Original Indenture, as stated in the engineer's certificate required by Section
3(b) of said Article VII, and the proceeds of the electric properties so
released pursuant to Section 5 of said Article VII. Such retirement of Bonds
shall be effected in either one or both of the following methods:
(a) By the withdrawal pursuant to Section 2 of Article VIII of the
Original Indenture of any moneys deposited with the Trustee pursuant to
Sections 3(d), 4(d) and 5 of Article VII of the Original Indenture upon
such release; or
(b) By causing the Trustee to purchase or redeem bonds, pursuant to
Section 8 of Article VIII of the Original Indenture, out of any moneys
deposited with the Trustee pursuant to Sections 3(d), 4(d) and 5 of Article
VII of the Original Indenture upon such release.
The Bonds to be so retired pursuant to this Section 3 shall include a
principal amount of Bonds of each Series then outstanding in the same ratio to
the aggregate principal amount of all Bonds so retired as the aggregate
principal amount of all Bonds of each Series outstanding immediately prior to
such release bears to the total principal amount of all Bonds then outstanding.
ARTICLE V
AMENDMENTS TO RATIO OF BONDS ISSUABLE TO PROPERTY ADDITIONS
AND OF CERTAIN OTHER RATIOS. AMENDMENT TO NET EARNINGS
TEST. USE OF FACSIMILE SIGNATURES. AMENDMENT OF ARTICLE
XV. RESERVATION OF RIGHT TO AMEND ARTICLE VII
SECTION 1. So long as any of the Bonds of any series originally issued
prior to January 1, 1997 shall remain outstanding:
(a) Notwithstanding the provisions of Section 4 of Article III of the
Original Indenture, no Bonds shall be authenticated and delivered pursuant
to the provisions of Article III of the Original Indenture and issued upon
the basis of net bondable value of property additions for an aggregate
principal amount in excess of sixty percent (60%) of the net bondable value
of property additions not subject to an unfunded prior lien.
For the purposes of Subsections (e) and (f) of the definition of "net
bondable value of property additions not subject to an unfunded prior
lien," contained in Article I of the Original Indenture, and Subdivisions 8
and 9 of clause (a) of Section 4 of Article III of the Original
-19-
Indenture, in all computations made with respect to a period subsequent to
April 1, 1949, the deductions therein referred to shall in each case be
ten-sixths (10/6ths) of the respective amounts mentioned, in lieu of
ten-sevenths (10/7ths).
(b) Notwithstanding the provisions of Section 3(a) of Article VIII of
the Original Indenture, no moneys received by the Trustee pursuant to
Section 5(a) of Article III of the Original Indenture shall be paid over by
the Trustee in an amount in excess of sixty percent (60%) of the net
bondable value of property additions not subject to an unfunded prior lien,
and for the purposes of Section 3 of Article VII of the Original Indenture,
the amount of cash required to be deposited by the Company pursuant to
Subsection (d) of said Section 3 of Article VII shall not be reduced in an
amount in excess of sixty percent (60%) of the net bondable value of
property additions not subject to an unfunded prior lien.
(c) For the purposes of clauses (c) and (d) of the definition of "net
bondable value of property additions subject to an unfunded prior lien,"
contained in Article I of the Original Indenture, and Subsection 7 of
clause (a) of Section 4 of Article III of the Original Indenture, in all
computations made with respect to a period subsequent to April 1, 1949, the
deductions therein referred to shall in each case be ten-sixths (10/6ths)
of the respective amounts mentioned, in lieu of ten-sevenths (10/7ths).
(d) Subsection (a) of Section 14, clauses (1) and (2) of Subsection
(a) of Section 16 of Article IV and clause (1) of Subsection (b) of Section
1 of Article XII of the Original Indenture shall be deemed amended by
substituting the words "sixty percent (60%)" for "seventy percent (70%)"
where they appear in said provisions of the Original Indenture.
(e) The definition of the term "net earnings available for interest,
depreciation and property retirement," as contained in Article I of the
Original Indenture, shall be deemed to mean the net earnings of the Company
ascertained as follows:
1. The total operating revenues of the Company and the net
non-operating revenues of the properties of the Company shall be
ascertained.
2. From the total, determined as provided in Subsection (a),
there shall be deducted all operating expenses, including all
salaries, rentals, insurance, license and franchise fees, expenditures
for repairs and maintenance, taxes (other than income, excess profits
and other taxes measured by or dependent on net taxable income),
depreciation as shown on the books of the Company or an amount equal
to the minimum provision for depreciation as hereinafter defined,
whichever is greater, but excluding all property retirement
appropriations, all interest and sinking fund charges, amortization of
stock and debt discount and expense or premium and further excluding
any charges to income or otherwise for the amortization of plant or
property accounts or of amounts transferred therefrom.
3. The balance remaining after the deduction of the total amount
computed pursuant to Subsection (b) from the total amount computed
-20-
pursuant to Subsection (a) shall constitute the "net earnings of the
Company available for interest," provided that not more than fifteen
percent (15%) of the net earnings of the Company available for
interest may consist of the aggregate of (i) net non-operating income,
(ii) net earnings from mortgaged property other than property of the
character of property additions and (iii) net earnings from property
not subject to the lien of this Indenture.
4. No income received or accrued by the Company from securities
and no profits or losses of capital assets shall be included in making
the computations aforesaid.
5. In case the Company shall have acquired any acquired plant or
systems or shall have been consolidated or merged with any other
corporation, within or after the particular period for which the
calculation of net earnings of the Company available for interest,
depreciation and property retirement is made, then, in computing the
net earnings of the Company available for interest, depreciation and
property retirement, there may be included, to the extent they may not
have been otherwise included, the net earnings or net losses of such
acquired plant or system or of such other corporation, as the case may
be, for the whole of such period. The net earnings or net losses of
such property additions, or of such other corporation for the period
preceding such acquisition or such consolidation or merger, shall be
ascertained and computed as provided in the foregoing subsections of
this definition as if such acquired plant or system had been owned by
the Company during the whole of such period, or as if such other
corporation had been consolidated or merged with the Company prior to
the first day of such period.
6. In case the Company shall have obtained the release of any
property pursuant to Section 3 of Article VII of the Original
Indenture, of a fair value in excess of Five Hundred Thousand Dollars
($500,000), as shown by the engineer's certificate required by said
Section 3, or shall have obtained the release of any property pursuant
to Section 5 of Article VII of the Original Indenture, the proceeds of
which shall have exceeded Five Hundred Thousand Dollars ($500,000),
within or after the particular period for which the calculation of net
earnings of the Company available for interest, depreciation and
property retirement is made, then, in computing the net earnings of
the Company available for interest, depreciation and property
retirement, the net earnings or net losses of such property for the
whole of such period shall be excluded to the extent practicable on
the basis of actual earnings and expenses of such property or on the
basis of such estimates of the earnings and expenses of such property
as the signers of an officers' certificate filed with the Trustee
pursuant to Section 3(b) of Article III or Section 16 of Article IV of
the Original Indenture shall deem proper.
The term "minimum charge for depreciation" as used herein shall mean
an amount equal to (a) fifteen percent (15%) of the total operating
revenues of the Company after deducting therefrom an amount equal to the
aggregate cost to the Company of electric energy, gas and water purchased
for resale to others and rentals paid for, or other payments made for the
use of, property owned by others and leased to or operated by the Company,
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the maintenance of which and depreciation on which are borne by the owners,
less (b) an amount equal to the expenditures for maintenance and repairs to
the plants and property of the Company and included or reflected in its
operating expense accounts.
The terms "net earnings available for interest, depreciation and
property retirement" and "net earnings of another corporation available for
interest, depreciation and property retirement" as contained in Article I
of the Original Indenture, when used with respect to any property or with
respect to another corporation, shall mean the net earnings of such
property or the net earnings of such other corporation, as the case may be,
computed in the manner provided in Subsections (a), (b), (c) and (d)
hereof.
(f) Notwithstanding the provisions of clauses (1) and (2) of
subsection (b) of Article III, and Subsection (b) of Section 14 of Article
IV, and Subsection (b) of Section 16 of Article IV and clause (2) of
Subsection (b) of Section 1 of Article XII of the Original Indenture, the
computation of net earnings required therein shall be made as provided in
Subsection (e) of this Section 1, and the net earnings tests required in
said mentioned provisions of Articles III, IV and XII of the Original
Indenture shall be based on two times the annual interest charges described
in such provisions, instead of two and one-half times such charges, but
shall not otherwise affect such provisions or relieve from the requirements
therein pertaining to ten percent (10%) of the principal amount of Bonds
therein described.
SECTION 2. All of the Bonds of the 2007 Series and of any series initially
issued after the initial issuance of Bonds of the 2007 Series shall, from time
to time, be executed on behalf of the Company by its Chairman of the Board,
Chief Executive Officer, President or one of its Vice Presidents whose
signature, notwithstanding the provisions of Section 12 of Article II of the
Original Indenture, may be by facsimile, and its corporate seal (which may be in
facsimile) shall be thereunto affixed and attested by its Secretary or one of
its Assistant Secretaries whose signature, notwithstanding the provisions of the
aforesaid Section 12, may be by facsimile.
In case any of the officers who have signed or sealed any of the Bonds of
the 2007 Series or of any series initially issued after the initial issuance of
Bonds of the 2007 Series manually or by facsimile shall cease to be such
officers of the Company before such Bonds so signed and sealed shall have been
actually authenticated by the Trustee or delivered by the Company, such Bonds
nevertheless may be authenticated, issued and delivered with the same force and
effect as though the person or persons who so signed or sealed such Bonds had
not ceased to be such officer or officers of the Company; and also any such
Bonds may be signed or sealed by manual or facsimile signature on behalf of the
Company by such persons as at the actual date of the execution of any of such
Bonds shall be the proper officers of the Company, although at the nominal date
of any such Bond any such person shall not have been such officer of the
Company.
SECTION 3. The Company reserves the right subject to appropriate corporate
action, but without the consent or other action of holders of bonds of any
series created after January 1, 1997, to make such amendments to the Original
Indenture, as supplemented, as shall be necessary in order to amend Article VII
thereof by adding thereto a Section 8 and a Section 9 to read as follows:
-22-
"SECTION 8. Notwithstanding any other provision of this Indenture, unless
an event of default shall have happened and be continuing, or shall happen as a
result of the making or granting of an application to release mortgaged property
permitted by this Section 8, the Trustee shall release from the lien of this
Indenture any mortgaged property if the fair value to the Company of all of the
property constituting the trust estate (excluding the mortgaged property to be
released but including any mortgaged property to be acquired by the Company with
the proceeds of, or otherwise in connection with, such release) equals or
exceeds an amount equal to 10/7ths of the aggregate principal amount of
outstanding Bonds and prior xxxx xxxxx outstanding at the time of such release,
upon receipt by the Trustee of:
"(a) an officers' certificate dated the date of such release,
requesting such release, describing in reasonable detail the mortgaged
property to be released and stating the reason for such release;
"(b) an engineer's certificate, dated the date of such release,
stating (i) that the signer of such engineer's certificate has examined
such officers' certificate in connection with such release, (ii) the fair
value to the Company, in the opinion of the signer of such engineer's
certificate, of (A) all of the property constituting the trust estate, and
(B) the mortgaged property to be released, in each case as of a date not
more than 90 days prior to the date of such release, and (iii) that in the
opinion of such signer, such release will not impair the security under
this Indenture in contravention of the provisions hereof;
"(c) in case any bondable property is being acquired by the Company
with the proceeds of, or otherwise in connection with, such release, an
engineer's certificate, dated the date of such release, as to the fair
value to the Company, as of the date not more than 90 days prior to the
date of such release, of the bondable property being so acquired (and if
within six months prior to the date of acquisition by the Company of the
bondable property being so acquired, such bondable property has been used
or operated by a person or persons other than the Company in a business
similar to that in which it has been or is to be used or operated by the
Company, and the fair value to the Company of such bondable property, as
set forth in such certificate, is not less than $25,000 and not less than
1% of the aggregate principal amount of Bonds at the time outstanding, such
certificate shall be an independent appraiser's certificate);
"(d) an officer's certificate, dated the date of such release, stating
the aggregate principal amount of outstanding Bonds and prior xxxx xxxxx
outstanding at the time of such release, and stating that the fair value to
the Company of all of the property constituting the trust estate (excluding
the mortgaged property to be released but including any bondable property
to be acquired by the Company with the proceeds of, or otherwise in
connection
-23-
with, such release) stated on the independent appraiser's certificate filed
pursuant to Section 8(c) equals or exceeds an amount equal to 10/7ths of
such aggregate principal amount;
"(e) an officers' certificate, dated the date of such release, stating
that, the Company is not, and by the making or granting of the application
will not be, in default in the performance of any of the terms and
covenants of this Indenture;
"(f) an opinion of counsel, dated the date of such release, as to
compliance with conditions precedent.
"SECTION 9. If the Company is unable to obtain, in accordance with any
other Section of this Article VII, the release from the lien of this Indenture
of any property constituting part of the trust estate, unless an event of
default shall have happened and be continuing, or shall happen as a result of
the making or granting of an application to release mortgaged property permitted
by this Section 9, the Trustee shall release from the lien of this Indenture any
mortgaged property if the fair value to the Company thereof, as shown by the
engineer's certificate filed pursuant to Section 9(b), is less than 1/2 of 1% of
the aggregate principal amount of outstanding Bonds and prior xxxx xxxxx
outstanding at the time of such release, provided that the aggregate fair value
to the Company of all mortgaged property released pursuant to this Section 9, as
shown by all engineer's certificates filed pursuant to Section 9(b) in any
period of 12 consecutive calendar months which includes the date of such
engineer's certificate, shall not exceed 1% of the aggregate principal amount of
the outstanding Bonds and prior xxxx xxxxx outstanding at the time of such
release, upon receipt by the Trustee of:
"(a) an officers' certificate, dated the date of such release,
requesting such release, describing in reasonable detail the mortgaged
property to be released and stating the reason for such release;
"(b) an engineer's certificate, dated the date of such release,
stating (A) that the signer of such engineer's certificate has examined
such officers' certificate in connection with such release, (B) the fair
value to the Company, in the opinion of the signer of such engineer's
certificate, of such mortgaged property to be released as of a date not
more than 90 days prior to the date of such release, and (C) that in the
opinion of such signer such release will not impair the security under this
Indenture in contravention of the provisions hereof;
"(c) an officers' certificate, dated the date of such release, stating
the aggregate principal amount of outstanding Bonds and prior xxxx xxxxx
outstanding at the time of such release, that 1/2 of 1% of such aggregate
principal amount does not exceed the fair value to the Company of the
mortgaged
-24-
property for which such release is applied for as shown by the engineer's
certificate referred to in Section 9(b), and that 1% of such aggregate
principal amount does not exceed the aggregate fair value to the Company of
all mortgaged property released from the lien of this Indenture pursuant to
this Section 9 as shown by all engineer's certificates filed pursuant to
Section 9(b) in such period of 12 consecutive calendar months;
"(d) an officers' certificate, dated the date of such release, stating
that, the Company is not, and by the making or granting of the application
will not be, in default in the performance of any of the terms and
covenants of this Indenture; and
"(e) an opinion of counsel, dated the date of such release, as to
compliance with conditions precedent."
The Company also reserves the right subject to appropriate corporate
action, but without the consent or other action of holders of Bonds of any
series created after January 1, 1997 to amend, modify or delete any other
provision of the Original Indenture, as supplemented, as may be necessary in
order to effectuate the intents and purposes contemplated by the foregoing
Sections 8 and 9.
SECTION 4. The Company reserves the right subject to appropriate corporate
action, but without the consent or other action of holders of Bonds of any
series created after January 1, 1997 to:
(a) delete as a condition to the authentication of additional Bonds
pursuant to Sections 4, 5 or 6 of Article III of the Original Indenture the
requirement to file or deposit with the Trustee the officers' certificate
described in Section 3(b) of Article III of the Original Indenture;
(b) delete as a condition to the consolidation or merger of the
Company into, or sale by the Company of its property as an entirety or
substantially as an entirety to another corporation the requirement set
forth in Section 1(b)(2) of Article XII of the Original Indenture;
(c) delete as a condition to the release of property pursuant to
Section 3 of Article VII of the Original Indenture, the requirement to
obtain an independent engineer's certificate under the circumstances set
forth in Section 3(c) of Article VII; and
(d) amend, modify or delete any other provision of the Original
Indenture, as supplemented, as may be necessary in order to effectuate the
intents and purposes contemplated by this Section 4.
-25-
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 1. The Trustee accepts the trusts herein declared, provided,
created or supplemented and agrees to perform the same upon the terms and
conditions herein and in the Original Indenture, as amended, set forth and upon
the following terms and conditions.
SECTION 2. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental Indenture
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 XIII of the Original Indenture, as amended by the Second
Supplemental Indenture, shall apply to and form part of this Supplemental
Indenture with the same force and effect as if the same were herein set forth in
full with such omissions, variations and insertions, if any, as may be
appropriate to make the same conform to the provisions of this Supplemental
Indenture.
SECTION 3. Whenever in this Supplemental Indenture either of the parties
hereto is named or referred to, such reference shall, subject to the provisions
of Articles XII and XIII of the Original Indenture, be deemed to include the
successors and assigns of such party, and all the covenants and agreements in
this Supplemental Indenture contained by or on behalf of the Company, or by or
on behalf of the Trustee, shall, subject as aforesaid, bind and inure to the
respective benefits of the respective successors and assigns of such parties,
whether so expressed or not.
SECTION 4. Nothing in this Supplemental Indenture, expressed or implied, is
intended or shall be construed, to confer upon, or to give to, any person, firm
or corporation, other than the parties hereto and the holders of the Bonds and
coupons outstanding under the Indenture, any right, remedy or claim under or by
reason of this Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions, stipulations,
promises and agreements in this Supplemental Indenture contained by and on
behalf of the Company shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the Bonds and of the coupons outstanding under the
Indenture.
SECTION 5. This Supplemental Indenture may be executed in several
counterparts, and all such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
SECTION 6. The Titles of the several Articles of this Supplemental
Indenture shall not be deemed to be any part thereof.
S-1
IN WITNESS HEREOF, WESTERN RESOURCES, INC., party hereto of the first part,
has caused its corporate name to be hereunto affixed, and this instrument to be
signed and sealed by its Chairman of the Board, President, Chief Executive
Officer or a Vice President, and its corporate seal to be attested by its
Secretary or an Assistant Secretary for and in its behalf, and BNY MIDWEST TRUST
COMPANY, party hereto of the second part, has caused its corporate name to be
hereunto affixed, and this instrument to be signed and sealed by its duly
authorized officer and its corporate seal to be attested by its duly authorized
officer, all as of the day and year first above written.
(CORPORATE SEAL) WESTERN RESOURCES, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------
Xxxx X. Xxxxx
ATTEST:
By: /s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx
Executed, sealed and delivered by
WESTERN RESOURCES, INC.
in the presence of:
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx
By: /s/ Xxxxx X. Beach
------------------------------
Xxxxx X. Beach
BNY MIDWEST TRUST COMPANY
As Trustee
By: /s/ X. Xxxxxxxxx
--------------------------
X. Xxxxxxxxx
ATTEST:
By: /s/ X. X. Xxxxxxx
------------------------------
X. X. Xxxxxxx
Executed, sealed and delivered by
BNY MIDWEST TRUST COMPANY
in the presence of:
By: /s/ X. Xxxxxxxx
------------------------------
Xxxx Xxxxxxxx
By: /s/ X. Xxxxxx
------------------------------
Xxxxxxx Xxxxxx
S-2
STATE OF KANSAS )
: ss.:
COUNTY OF SHAWNEE )
BE IT REMEMBERED, that on this 10th day of May, 2002, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came Xxxx X. Xxxxx and Xxxxx X. Xxxxx, of Western Resources, Inc., a
corporation duly organized, incorporated and existing under the laws of the
State of Kansas, 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 the execution
of the same to be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
/s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Notary Public
My Commission Expires
00-00-00
X-0
XXXXX XX XXXXXXXX )
: ss.:
COUNTY OF XXXX )
BE IT REMEMBERED, that on this 26 day of April, before me, the undersigned,
a Notary Public within and for the County and State aforesaid, personally came
X. Xxxxxxxxx and X. X. Xxxxxxx, of BNY Midwest Trust Company, an Illinois trust
company, 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 the execution
of the same to be the act and deed of said corporation.
/s/ Xxxxx Xxxxx Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
Notary Public
My Commission Expires
0-00-00
X-0
XXXXX XX XXXXXX )
: ss.:
COUNTY OF SHAWNEE )
BE IT REMEMBERED, that on this 10th day of May, 2002, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came Xxxx X. Xxxxx and Xxxxx X. Xxxxx, of Western Resources, Inc., a
corporation duly organized, incorporated and existing under the laws of the
State of Kansas, who are personally known to me to be such officers, being by me
respectively duly sworn, did each say that the said Xxxx X. Xxxxx is Senior Vice
President, Chief Financial Officer and Treasurer and that the said Xxxxx X.
Xxxxx is Vice President and Corporate Secretary of said corporation, that the
consideration of and for the foregoing instrument was actual and adequate, that
the same was made and given in good faith, for the uses and purposes therein set
forth and without any intent to hinder, delay, or defraud creditors or
purchasers.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
/s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Notary Public
My Commission Expires
11-18-04
APPENDIX A
to
THIRTY-FIFTH SUPPLEMENTAL INDENTURE
Dated as of May 10, 2002
Western Resources, Inc.
to
BNY Midwest Trust Company
(as successor to
Xxxxxx Trust and Savings Bank)
------------
DESCRIPTION OF PROPERTIES
LOCATED IN THE STATE OF KANSAS
FIRST
PARCELS OF REAL ESTATE
XXXXXXXXX COUNTY
Beginning at point 560 feet south of the Northeast corner of the Southwest
Quarter Section 21, Township 13 South, Range 2 east of the 6th P.M., thence West
371 feet more or less, to the center of Spruce Street in Chicago Addition,
thence South 211 feet on the center line of Spruce Street to the North line of
Augustine Avenue in Chicago Addition to the City of Abilene, according to the
recorded plat prior to vacation, thence west 331 feet to the East line of Cedar
Street; thence North 386 feet; thence East 702 feet, thence South 175 feet to
the point of beginning;
Also to be known as Lot One (1), Xxxxxxxx Addition, Abilene, Xxxxxxxxx County,
Kansas.
A parcel of land located in the Southwest Quarter of Section Two (2), Township
16 South, Range 3 East of the 6th Principal Meridian, Xxxxxxxxx county, Kansas,
more particularly described as follows:
Commencing at the Southwest corner of said Southwest Quarter; thence on an
assumed bearing of North 89 degrees 46 feet 21 inches East along the South line
of said Southwest Quarter a distance of 1219.55 feet; thence North 00 degrees 7
feet 17 inches West a distance of 1774.70 feet to the PONT OF BEGINNING of the
parcel to be described; thence continuing North 00 degrees 7 feet 17 inches West
a distance of 100.00 feet; thence North 89 degrees 39 feet 48 inches East a
distance of 264.00
A-2
feet; thence South 00 degrees 7 feet 17 inches East a distance of 100.00 feet;
thence South 89 degrees 39 feet 48 inches West a distance of 264.00 feet to the
point of beginning, Containing 0.61 acres, more or less.
XXXXXXX COUNTY
The South 50 feet of Xxx 0, Xxxxxxxxxx Xxxxxxxx Xxxx, a subdivision in Shawnee,
Xxxxxxx County, Kansas, according to the recorded plat thereof.
Xxx 0, Xxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxx Xxxx, a subdivision in the City of
Shawnee, Xxxxxxx County, Kansas.
LABETTE COUNTY
Xxx 0, Xxxxx 0 Xxxxx Xxxxxxxxxx Xxxx and a portion of Xxx 0, Xxxxx 0, Xxxxx
Xxxxxxxxxx Xxxx, said portion being more particularly described as follows:
Beginning at the Northwest Corner of Xxx 0, Xxxxx 0, Xxxxx Xxxxxxxxxx Xxxx;
thence S 90 degrees E along the North Line of Lot 3 a distance of 515.57 feet to
the Northeast Corner of said Lot 2; thence S 23 degrees, 30 minutes W along the
East line of said Lot 3 a distance of 428.40 feet to a deflection point in said
East line; thence N 88 degrees 01 minutes 26 seconds W a distance of 358.07 feet
to the W line of said Lot 3; thence N 1 degrees 58 minutes 34 seconds E along
said West Lie a distance of 380.79 feet to the point of beginning. A total
acreage of 8.94 acres, more or less,
LEAVENWORTH COUNTY
A tract of land in the Southwest Quarter of Section 36, Township 10 South, Range
22 East of the 6th P.M. in Leavenworth County, Kansas, Being More Particularly
Described as Follows: Commencing at the Southwest corner of said Quarter
section; Thence North along the west line of said Quarter Section on an assumed
bearing of North 100 degrees 00 feet 00 inches East. A distance of 1828.83 feet
deed, (182.7.38 feet measured) to the true point of beginning of land being
described; Thence continuing North 00 degrees 00 feet inches East, along said
West line, a distance of 570.00 feet; Thence South 89 degrees 48 feet 56 inches
East 720.00 feet; Thence South 00 degrees 00 feet 00 inches West parallel to
said West line, a distance of 570.00 feet; Thence North 89 degrees 46 feet 56
inches West 720.00 feet to the place of beginning; in Leavenworth County,
Kansas.
XXXXXX COUNTY
TR BEG 200' X XX XX XXX XX 0/0, XX N500', E550', S500', W550' TO POB
RENO COUNTY
A tract of land in the Southwest Quarter of Section 7, Township 23 South, Range
6 West described as follows: BEGINNING at the Southeast corner of said quarter
Section; thence North along the East line of said Quarter Section 380 feet;
thence West parallel to South line of said Quarter Section 460 feet; thence
south 380 feet to a point on said South line 460 feet West of the place of
beginning;
A-3
thence East 460 feet along said South line to the place of beginning. The above
contains 3.68 acres, more or less, exclusive of the existing highway.
SHAWNEE COUNTY
A tract of land located in the Northeast Quarter (NE1/4) of Xxxxxxx 00, Xxxxxxxx
00 Xxxxx, Xxxxx 16 East of the 6th P.M., more particularly described as follows:
Beginning on the South line of said Northeast Quarter, at a point located 260
feet West of the Southeast Corner of said Northeast Quarter; thence continuing
West along said South line, a distance of 210 feet; thence North parallel with
the East lien of said Northeast Quarter, a distance of 197 feet; thence East
parallel with said South line, a distance of 470 feet; thence South along said
East line, a distance of 32 feet; thence West parallel with said South line, a
distance of 260 feet; thence South parallel with said East line, a distance of
165 feet to the Point of Beginning.
