Exhibit 4.2
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WESTERN RESOURCES, INC.
TO
XXXXXX TRUST AND SAVINGS BANK
as Trustee
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_________ SUPPLEMENTAL INDENTURE
Dated as of [ ], 2000
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TABLE OF CONTENTS*
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Page
Parties..................................................................... 1
Recitals.................................................................... 1
Granting Clause............................................................. 3
Habendum.................................................................... 5
Exceptions and Reservations................................................. 5
Grant in Trust.............................................................. 6
General Covenant............................................................ 6
ARTICLE I.
DESCRIPTION OF BONDS OF THE _______ SERIES
Section 1. General Description of Bonds of the ________ Series........... 6
Section 2. Denominations of Bonds of the ________ Series and
privilege of exchange........................................ 7
Section 3. Form of Bonds of the ________ Series........................... 7
Section 4. Execution and Form of Temporary Bonds of
the ________ Series.......................................... 12
ARTICLE II.
ISSUE OF BONDS OF THE ________ SERIES
Section 1. Limitations as to principal amount............................. 12
Section 2. Execution and Delivery of Bonds of the _________ Series........ 13
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* 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
ARTICLE III.
REDEMPTION
Section 1. Bonds of the ________ Series are not redeemable................. 13
ARTICLE IV.
ADDITIONAL COVENANTS
Section 1. Title to mortgaged property..................................... 13
Section 2. To retire certain portions of Bonds upon release of all
or substantially all of the gas properties ................... 13
Section 3. To retire certain portions of Bonds upon release of all or
substantially all of the electric properties ................. 14
ARTICLE V.
AMENDMENTS TO RATIO OF BONDS ISSUABLE TO PROPERTY ADDITIONS
AND OF CERTAIN OTHER RATIOS. AMENDMENT OF 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 ________ Series remain outstanding:
Bonds issuable on basis only of 60% of net bondable
value of property additions not subject to an
unfunded prior lien....................................... 15
Amendment of definition of net bondable value of property
additions not subject to an unfunded prior
lien...................................................... 15
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................................................. 15
Amendment of definition of net bondable value of property
additions subject to an unfunded prior lien .............. 15
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 ...................................... 15
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Page
Definitions: minimum charge for depreciation; net earnings
of property available for interest, depreciation and
property retirement; net earnings of another corporation
available for interest, depreciation and property
retirement ............................................... 16
Amendment of Articles III, IV and XII of the Original
Indenture................................................. 17
Section 2. Facsimile Signatures.......................................... 18
Section 3. Reservation of Right to Amend Article VII..................... 18
Section 4. Reservation of Right to Delete certain requirements and
conditions.................................................. 21
ARTICLE VI.
MISCELLANEOUS PROVISIONS
Section 1. Acceptance of Trust........................................... 21
Section 2. Responsibility and Duty of Trustee............................ 21
Section 3. Parties to include successors and assigns..................... 21
Section 4. Benefits restricted to parties and to holders of Bonds and
coupons..................................................... 22
Section 5. Execution in counterparts..................................... 22
Section 6. Titles of Articles not part of the _________ Supplemental
Indenture................................................... 22
TESTIMONIUM............................................................... S-1
SIGNATURES AND SEALS...................................................... S-1
ACKNOWLEDGMENTS........................................................... S-2
APPENDIX A
DESCRIPTION OF PROPERTIES
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SUPPLEMENTAL INDENTURE, dated as of the [ ] day of [ ], Two Thousand, 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 [Xxxxxx
Trust and Savings Bank, a corporation organized and existing under the laws of
the State of Illinois whose mailing address is 000 Xxxx Xxxxxx Xxxxxx, X.X. Xxx
000, Xxxxxxx, Xxxxxxxx 00000] (hereinafter called the "Trustee"), as Trustee
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 an 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-Three Supplemental Indentures supplemental to said Original Indenture, of
which Thirty-One 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 [ ], 2000.
Series of First Principal Principal
Supplemental Indenture Mortgage Bonds Amount Amount
Hereinafter Called Date Provided For Issued Outstanding
------------------ ---- ------------ ------ -----------
Supplemental Indenture July 1, 1939 3-1/2% Series $26,500,000 None
Due 1969
Second Supplemental April 1, 1949 2-7/8% Series 10,000,000 None
Indenture Due 1979
Fourth Supplemental October 1, 1949 2-3/4% Series 6,500,000 None
Indenture Due 1979
Fifth Supplemental December 1, 1949 2-3/4% Series 32,500,000 None
Indenture Due 1984
Seventh Supplemental December 1, 1951 3-1/4% Series 5,250,000 None
Indenture Due 1981
Eighth Supplemental May 1, 1952 3-1/4% Series 4,750,000 None
Indenture Due 1982
Ninth Supplemental October 1, 1954 3-1/8% Series 8,000,000 None
Indenture Due 1984
Tenth Supplemental September 1, 1961 4-3/4% Series 13,000,000 None
Indenture 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
Thirteenth Supplemental February 1, 1975 8-5/8% Series 35,000,000 None
Indenture Due 2005
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Series of First Principal Principal
Supplemental Indenture Mortgage Bonds Amount Amount
Hereinafter Called Date Provided For Issued Outstanding
------------------ ---- ------------ ------ -----------
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 100,000,000 100,000,000
Indenture Due 2002
Thirtieth Supplemental February 1, 1993 6% Pollution 58,500,000 58,410,000
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 Due 2032
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Series of First Principal Principal
Supplemental Indenture Mortgage Bonds Amount Amount
Hereinafter Called Date Provided For Issued Outstanding
------------------ ---- ------------ ------ -----------
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
; and
WHEREAS, the Company is entitled at this time to have authenticated and
delivered additional bonds on the basis of net bondable value of property
additions not subject to an unfunded prior lien and 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 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, [ ]% Series
Due [ ], (hereinafter called "Bonds of the Series"); 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
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 Xxxxxx
Trust and Savings Bank, as Trustee, and to its successors in trust under the
Indenture forever, all and singular the following described properties (in
addition to all
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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, 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.
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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.
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;
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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
Series
SECTION 1. The Series of Bonds to be executed, authenticated and delivered
under and secured by the Original Indenture shall be Bonds of the [ ]% Series.
The Bonds of the Series shall be designated as "First Mortgage Bonds, [ ]%
Series Due 20[ ]." Each of the Bonds of the Series shall be executed,
authenticated and delivered in accordance with provisions of, and shall in all
respects be subject to, all of the terms, conditions and covenants of the
Original Indenture, as amended, and subject to all the terms, conditions and
covenants of this Supplemental Indenture.
Bonds of the Series shall mature [ ], and shall bear interest at the rate
of [ ] ([ ]%) per annum payable semiannually on the 1st days of [ ] and [ ] in
each year, commencing [ ]. Every Bond of the Series shall be 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 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, that if at the time of authentication
of any Bond of the Series interest shall be in default on any such Bond of the
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 Series 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 Series shall bear interest from the [ ]
or [ ] next preceding the date thereof, unless such Bond shall be dated prior to
[ ], in which case it shall bear interest from [ ].
The person in whose name any Bond of the Series is registered at the close
of business on any record date with regard to any interest payment shall be
entitled to receive the interest payable thereon on such interest payment date
notwithstanding the cancellation of such Bond
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upon the transfer or exchange 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 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 Series shall be registered bonds without
coupons of the denominations of $1,000 and of any multiples of $1,000, numbered
consecutively from R1 upwards. Bonds of the Series may be interchanged for each
other 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 Series, and the Trustee's Certificate with
respect thereto, shall be substantially in the following forms, respectively:
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[FORM OF FACE OF BOND OF THE SERIES]
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WESTERN RESOURCES, INC.
(Incorporated under the laws of the State of Kansas)
FIRST MORTGAGE BOND, [ ]% SERIES DUE 20[ ]
--------------
DUE [ ]
No. ___________ $____________
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 registered assigns, on the first day of [ ] the sum
of _____________________ 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 [ ] or [ ] next preceding the date of this Bond at the rate of [ ] ([ ]%) per
annum, payable semiannually, on the first days of [ ] and [ ] in each year,
commencing [ ] (on which date interest from [ ] will be payable), until
maturity, or, if the Company shall default in the payment of the principal
hereof, until the Company's obligation with respect to the payment of such
principal shall be discharged as provided in the Indenture hereinafter
mentioned. The interest payable on any [ ] or [ ] as aforesaid will be paid to
the person in whose name this Bond is registered 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, 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 and premium, if any, and interest on, this Bond are
payable at the agency of the Company in the City of Chicago, Illinois, or, at
the option of the holder hereof, 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.
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 Xxxxxx Trust and Savings Bank, the Trustee under the Indenture, or a
successor trustee thereto under the Indenture, shall have signed the form of
certificate endorsed hereon.
The provisions of this Bond are continued on the reverse hereof, and such
continued provisions shall for all purposes have the same effect as though fully
set forth at this place.
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IN WITNESS WHEREOF, WESTERN RESOURCES, INC. has caused this Bond to be
signed in its name by its Chairman of the Board and Chief Executive Officer or
its President 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:
__________________________________
Secretary
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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 [ ].
XXXXXX TRUST AND SAVINGS BANK,
Trustee,
By:_________________________________
Authorized Officer
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[FORM OF REVERSE OF BOND OF THE ________ SERIES]
WESTERN RESOURCES, INC.
First Mortgage Bond, [ ]% ________ Series Due 20[ ]
DUE [ ], 20[ ]
(CONTINUED)
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
Xxxxxx Trust and Savings Bank (herein called the "Trustee"), as Trustee, as
amended by the indentures supplemental thereto including the indenture
supplemental thereto dated [ ] (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, [ ]% Series Due 20[ ]" (herein called
"Bonds of the 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
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
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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.
*[The Bonds of the __________ Series are not redeemable prior to maturity.
The Bonds of the ________ Series are subject to redemption at any time or
from time to time prior to maturity at the option of the Company, subject to
certain restrictions with respect to redemptions prior to ___________ as set
forth in the aforesaid Supplemental Indenture, and upon application of certain
moneys included in the trust estate, either as a whole or in part by lot, upon
payment of the Redemption Prices applicable to the respective periods set forth
below, together, in each case, with accrued interest to the redemption date, all
subject to the conditions of, and as more fully set forth in, the Indenture.
Redemption Price Redemption Price
Expressed as a If Redeemed Expressed as a
If Redeemed Percentage of the During the Percentage of the
During the Twelve-Month Period Principal Amount Twelve-Month Period Principal Amount
Beginning of the Bonds Beginning of the Bonds
--------- ------------ --------- ------------
% %
Such redemption in every case shall be effected upon notice given by 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, all
subject to the conditions of, and as more fully set forth in, the 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 Man-
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* The following description will be amended as appropriate to reflect whether
or not the series of Bonds is subject to redemption.
If the Bonds are subject to a sinking fund or any similar fund, appropriate
language will be added to that effect.
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xxxxxx, 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 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.
SECTION 4. Until Bonds of the 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 Series in
temporary form, as provided in Section 9 of Article II of the Original
Indenture.
ARTICLE II
Issue of Bonds of the _________ Series
SECTION 1. The total principal amount of Bonds of the 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 ______ Series for the aggregate principal amount of
[ ] Million Dollars ($[ ]) 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
Original Indenture, as amended.
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ARTICLE III
Redemption.*
SECTION 1. [Bonds of the _______ Series are not redeemable prior to
maturity.]
Bonds of the _________ Series shall, subject to the provisions of Article V
of the Original Indenture, be redeemable at any time or from time to time prior
to maturity, at the option of the Board of Directors of the Company and pursuant
to Section 8 of Article VIII of the Original Indenture either as a whole or in
part, upon payment of the applicable percentage of the principal amount thereof
set forth under the heading "Redemption Price" in the tabulation in the form of
Bonds of the __________ Series set forth in Section 3 of Article I hereof,
together, in each case, with accrued interest to the redemption date.
Notwithstanding the foregoing provisions of this Section, Bonds of the
________ Series shall not be redeemable as set forth in the preceding paragraph
prior to ________ if the moneys for such redemption are obtained by the Company
directly or indirectly from or in anticipation of the borrowing by or for the
account of the Company at an effective interest cost (calculated after
adjustment, in accordance with generally accepted financial practice, for any
premium received or discount granted in connection with such borrowing, but
without any adjustment for commissions, underwriting discounts and expenses in
connection with such borrowing) of _____ or less per annum or are obtained from
an affiliate of the Company.
SECTION 2. Subject to the provisions of Article V of the Original
Indenture, the Company shall cause notice of redemption to be given by 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 at their
addresses as the same shall appear on the transfer register of the Company.
SECTION 3. Unless the Bonds of the _____ Series have been declared due and
payable prior to their maturity by reason of an event of default, commencing [ ]
the Representative (as defined below) of a deceased holder of an interest in the
Bonds of the _____ Series (a "Beneficial Owner") has the right to request
redemption of all or part of his or her interest Bonds of the _____ Series,
expressed in integral multiples of $1,000, for payment prior to maturity, and
the Company will redeem the same subject to the limitations that the Company
will not be obligated to redeem during the period beginning [ ] ending [ ], and
during any twelve month period ending [ ]
----------
* The following description will be modified or deleted as appropriate to
reflect whether or not the series of Bonds is subject to redemption under
all or some of the provision set forth.
If the Bonds are subject to a sinking fund or any similar fund, appropriate
language will be added to that effect.
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thereafter, (i) on behalf of the deceased Beneficial Owner any interest in the
Bonds of the _____ Series which exceeds an aggregate principal amount of $ and
(ii) interests in the Bonds of the _____ Series in the aggregate principal
amount exceeding percent ( %) of the aggregate principal amount of Bonds of the
_____ Series originally issued, or $ . In the case of interests in the Bonds of
the _____ Series owned by a deceased Beneficial Owner, a request for redemption
may be presented to the Trustee at any time and in any principal amount. If the
Company, although not obligated to do so, chooses to redeem interests of a
deceased Beneficial Owner in the Bonds of the _____ Series in any such period in
excess of the $ limitation, such redemption, to the extent that it exceeds the $
limitation for any Beneficial Owner, shall not be included in the computation of
the percent ( %) limitation for such period or any succeeding period.
Subject to the $ and percent ( %) limitations, the Company will upon the
death of any Beneficial Owner redeem the interest of the Beneficial Owner in the
Bonds of the _____ Series within 60 days following receipt by the Trustee of a
validly completed Redemption Request, as hereinafter defined, including all
supporting documentation, from such Beneficial Owner's personal representative,
or surviving joint tenant(s), tenant(s) by the entirety or tenant(s) in common,
or other persons entitled to effect such a Redemption Request (each, a
"Representative"). If Redemption Requests exceed either the $ or % per payment
period limitations then such excess Redemption Request (subject in the case of
the $ limitation to the provisions of the last sentence of the preceding
paragraph) will be applied to successive periods in the order of receipt for
prepayment, regardless of the number of periods required to redeem such interest
unless sooner withdrawn as described below.
A request for redemption of an interest in the Bonds of the _____ Series
may be made by delivering a request to the depositary, if any, in whose names
the certificate or certificates representing the Bonds of the _____ Series are
registered (the "Depositary") in the case of a participant in the system of such
Depositary, including securities brokers and dealers, banks and trust companies
that clear through or maintain a custodial relationship with such a participant,
either directly or indirectly (a "Participant") which is the Beneficial Owner of
such interest, or to the Participant through whom the Beneficial Owner owns such
interest, in form satisfactory to the Participant, together with evidence of
death of the Beneficial Owner and the authority of the Representative
satisfactory to the Participant and the Trustee. A Representative of a deceased
Beneficial Owner may make the request for redemption and shall submit such other
evidence of the right to such redemption as the Participant or Trustee shall
require. The request shall specify the principal amount of the Bonds of the
_____ Series to be redeemed. A request for redemption in form satisfactory to
the Participant and accompanied by the documents relevant to the request as
above provided, together with a certification by the Participant that it holds
the interest on behalf of the deceased Beneficial Owner with respect to whom the
request for redemption is being made (the "Redemption Request") shall be
provided to the Depositary by a Participant and the Depositary will forward the
request to the Trustee. Redemption Requests, including all supporting
documentation, shall be in the form satisfactory to the Trustee and no request
for redemption shall be considered validly made until the Redemption Request and
all supporting documentation, in form satisfactory to the Trustee, shall have
been received by the Trustee.
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The price to be paid by the Company for an interest in the Bonds of the
_____ Series to be redeemed pursuant to a request from a deceased Beneficial
Owner's Representative is one hundred percent (100%) of the principal amount
thereof plus accrued but unpaid interest to the date of redemption. Subject to
arrangements with the Depositary, payment for interests in the Bonds of the
_____ Series which are to be redeemed shall be made to the Depositary within 60
days following receipt by the Trustee of the Redemption Request, including all
supporting documentation, and the Bonds of the _____ Series to be redeemed in
the aggregate principal amount specified in the Redemption Requests submitted to
the Trustee by the Depositary which are to be fulfilled in connection with such
payment. An acquisition of Bonds of the _____ Series by the Company or its
subsidiaries other than by redemption at the option of any Representative of a
deceased Beneficial Owner shall not be included in the computation of either the
$ or percent ( %) limitation for any period.
Interests in the Bonds of the _____ Series held in tenancy by the entirety,
joint tenancy or by tenants in common will be deemed to be held by a single
Beneficial Owner and the death of a tenant in common, tenant by the entirety or
joint tenant will be deemed to be the death of the Beneficial Owner. The death
of a person who, during such person's lifetime, was entitled to substantially
all of the rights of a Beneficial Owner will be deemed the death of the
Beneficial Owner, regardless of the recordation of such interest on the records
of the Participant, if such rights can be established to the satisfaction of the
Participant and the Trustee.
Any Redemption Request may be withdrawn upon delivery of a written request
for such withdrawal given to the Trustee by the Depositary prior to payment for
redemption of the interest in the Bonds of the _____ Series.
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 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 Twenty-Sixth Supplemental Indenture, the
Twenty-Eighth Supplemental Indenture, the Twenty-Ninth Supplemental Indenture,
the Thirtieth Supplemental Indenture, the Thirty-First Supplemental Indenture,
the Thirty-Second Supplemental Indenture, the Thirty-Third 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 that all or substantially all of
the gas properties (either with or without including the gas property in the
City of Atchison, Kansas) shall have been released as an
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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 lesser of
(a) the fair value of the gas 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 gas properties so released pursuant to Section 5 of
said Article VII, less the amount of moneys, deposited with the Trustee
pursuant to Sections 3(d), 4(d) and 5 of said Article VII on such release,
withdrawn or reduced pursuant to Section 1 of Article VIII of the Original
Indenture simultaneously with or within three months after such release; or
(b) the greater of
(i) Nine Million Dollars ($9,000,000) plus One Hundred
Seventy-Five Thousand Dollars ($175,000) for each full year
(disregarding any period less than a full year) beginning with July 1,
1949, and ending on the date of such release, less One Million Seven
Hundred Thousand Dollars ($1,700,000), or
(ii) One-half of the fair value of the gas properties so
released, as stated in the engineer's certificate required by Section
3(b) of Article VII of the Original Indenture, and one-half of the
proceeds of the gas 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.
SECTION 3. 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:
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(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 OF 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 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.
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(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
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
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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,
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 of property 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.
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(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 (5) 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 Series and of any series initially
issued after the initial issuance of Bonds of the 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 Series or of any series initially issued after the initial issuance of Bonds
of the 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:
"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:
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"(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 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;
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"(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 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;
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"(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 6.
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.
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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 XXXXXX TRUST AND
SAVINGS BANK, 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 Chairman
of the Board, Chief Executive Officer, President or a Vice President and its
corporate seal to be attested by its Secretary or an Assistant Secretary, all as
of the day and year first above written.
(CORPORATE SEAL) WESTERN RESOURCES, INC.
By:______________________________
ATTEST:
By:______________________________
Executed, sealed and delivered by
WESTERN RESOURCES, INC.
in the presence of:
By:________________________________
By:________________________________
XXXXXX TRUST AND SAVINGS BANK,
As Trustee
By:_______________________________
ATTEST:
By:___________________________
Executed, sealed and delivered by
XXXXXX TRUST AND SAVINGS BANK
in the presence of:
By:___________________________
By:___________________________
S-2
STATE OF KANSAS )
: ss.:
COUNTY OF SHAWNEE )
BE IT REMEMBERED, that on this ____ day of _______________, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came __________ and __________, 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.
_____________________________
Notary Public
My Commission Expires
S-3
STATE OF ILLINOIS )
: ss.:
COUNTY OF XXXX )
BE IT REMEMBERED, that on this ____ day of ______________, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came __________ and _________, of Xxxxxx Trust and Savings Bank, a
corporation duly organized, incorporated and existing under the laws of the
State of Illinois, who are personally known to me to be such officers, and who
are personally known to me to be the same persons who executed as such officers
the within instrument of writing, and such persons duly acknowledged the
execution of the same to be the act and deed of said corporation.
_____________________________
Notary Public
My Commission Expires
S-4
STATE OF KANSAS )
: ss.:
COUNTY OF SHAWNEE )
BE IT REMEMBERED, that on this ____ day of _______________, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came __________ and __________, 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 __________ is Executive Vice
President and Chief Financial Officer and that the said __________ is 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.
_____________________________
Notary Public
My Commission Expires
APPENDIX A
to
SUPPLEMENTAL INDENTURE
--------------
Dated [ ], 2000
Western Resources, Inc.
to
Xxxxxx Trust and Savings Bank
------------
DESCRIPTION OF PROPERTIES
[TO COME]
