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UTILICORP UNITED INC.
And
BANK ONE TRUST COMPANY, NA
(formerly, The First National Bank of Chicago),
as Trustee
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___% Senior Deferrable Notes due 2004
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TWELFTH SUPPLEMENTAL INDENTURE
Dated as of September 29, 1999
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TWELFTH SUPPLEMENTAL INDENTURE, dated as of September 29,
1999, (herein called the "Twelfth Supplemental Indenture"), between UTILICORP
UNITED INC., a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), party of the first
part, and Bank One Trust Company, NA (formerly known as The First National
Bank of Chicago), a national banking association duly organized and existing
under the laws of the United States, as Trustee under the Indenture referred
to below (hereinafter called the "Trustee"), party of the second part.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered
to the Trustee an Indenture, dated as of November 1, 1990 (hereinafter called
the "Indenture"), to provide for the issuance from time to time of certain of
its unsecured senior notes (hereinafter called the "Securities"), the form
and terms of which are to be established as set forth in Sections 201 and 301
of the Indenture; and
WHEREAS, Section 901 of the Indenture provides, among other
things, that the Company and the Trustee may enter into indentures
supplemental to the Indenture for, among other things, the purpose of
establishing the form or terms of the Securities of any series as permitted
in Sections 201 and 301 of the Indenture; and
WHEREAS, the Company desires to create a series of the
Securities in an aggregate principal amount of $[231,750,000] to be
designated the "_____ % Senior Deferrable Notes due 2004" (the "Senior
Notes"), and all action on the part of the Company necessary to authorize the
issuance of the Senior Notes under the Indenture and this Twelfth
Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Senior
Notes when executed by the Company and completed, authenticated and delivered
by the Trustee as in the Indenture and this Twelfth Supplemental Indenture
provided, the valid and binding obligations of the Company and to constitute
these presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed; and
WHEREAS, Section 901 of the Indenture provides, among other
things, that the Company and the Trustee may enter into indentures
supplemental to the Indenture to, among other things, add to the covenants of
the Company for the benefit of the Holders of all or any series of
Securities; and
WHEREAS, UCU Capital Trust I, a Delaware statutory business
trust (the "Trust"), has offered to the public up to [$225,000,000], in
aggregate liquidation amount of its
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____% Trust Preferred Securities (the "Preferred Securities") and, in
connection therewith, the Company has agreed to purchase up to $[6,750,000]
in value of the aggregate liquidation amount of the Trust's common securities
(the "Common Securities" and together with the Preferred Securities, the
"Trust Securities"), each representing an undivided beneficial interest in
the assets of the Trust, and proposes to invest the proceeds from such
offerings in up to [$231,750,000] aggregate principal amount of the Senior
Notes;
NOW, THEREFORE, THIS TWELFTH SUPPLEMENTAL INDENTURE
WITNESSETH:
That in consideration of the premises, the Company
covenants and agrees with the Trustee, for the equal benefit of holders of
the Senior Notes, as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITION OF TERMS. Unless the context otherwise requires:
(a) a term not defined herein that is defined in the
Indenture has the same meaning when used in this Twelfth Supplemental
Indenture;
(b) a term defined anywhere in this Twelfth Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section
or Article of this Twelfth Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them
in the Declaration: (i) Applicable Margin; (ii) Applicable Principal
Amount; (iii) Common Securities; (iv) Delaware Trustee; (v) Failed
Remarketing; (vi) Guarantee; (vii) Preferred Securities; (viii)
Preferred Security Certificate; (ix) Property Trustee; (x) Redemption
Amount; (xi) Regular Trustees; (xii) Remarketing Agreement; (xiii)
Remarketing Date; (xiv) Reset Rate; (xv) Tax Event Redemption; (xvi)
Treasury Portfolio; and (xvii) Two-Year Benchmark Treasury Rate;
(g) the following terms have the meanings given to them
in the Purchase Contract Agreement: (i) Cash Settlement; (ii) PEPS
Units; (iii) Purchase Contract and (iv) Purchase Contract Settlement
Date;
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(h) the following terms have the meanings given to them
in this Section 1.1(h):
"Business Day" means any day other than a Saturday or
Sunday or a day on which banking institutions in New York City
are authorized or required by law or executive order to remain
closed or a day on which the principal office of the Trustee
or the Property Trustee is closed for business.
"Declaration" means the Amended and Restated
Declaration of Trust of the Trust, dated as of September ___,
1999, as amended and restated from time to time.
"Direct Action" has the meaning specified in Section
7.2.
"Primary Treasury Dealer" means a primary U.S.
government securities dealer in New York City.
"Purchase Contract Agreement" means the Purchase
Contract Agreement dated as of September 29, 1999 between the
Company and Bank One Trust Company, NA, as Purchase Contract
Agent.
"Quotation Agent" means (i) Xxxxxx Xxxxxxx & Co.
Incorporated and its respective successors, provided that if
Xxxxxx Xxxxxxx & Co. Incorporated ceases to be a Primary
Treasury Dealer, the Company will substitute another Primary
Treasury Dealer therefor, or (ii) any other Primary Treasury
Dealer selected by the Company.
"Remarketing" means (i) as long as the Trust has not
been liquidated, the operation of the procedures for
remarketing specified in Section 7.13 of the Declaration and
(ii) if the Trust has been liquidated, the operation of the
procedures for remarketing specified in Section 5.4 of the
Purchase contract Agreement.
"Remarketing Agent" shall mean Xxxxxx Xxxxxxx & Co.
Incorporated or any successor remarketing agent selected by
the Company.
ARTICLE II
TERMS AND ISSUANCE OF THE SENIOR NOTES
Section 2.1. ISSUE OF SENIOR NOTES. A series of Securities
which shall be designated the "__% Senior Deferrable Notes due 2004" shall be
executed, authenticated and delivered in accordance with the provisions of,
and shall in all respects be subject to, the terms, conditions and covenants
of the Indenture and this Twelfth Supplemental Indenture (including the form
of Senior Note set forth as Exhibit A hereto). The aggregate principal amount
of Senior Notes of the series created hereby which may be authenticated and
delivered under the Indenture shall not, except as permitted by the
provisions of the Indenture, exceed $[231,750,000].
Section 2.2 MATURITY. The Maturity Date will be November
16, 2004. Unless a Tax Event Redemption occurs, the entire principal amount
of the Senior Note will mature and
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become due and payable together with any accrued and unpaid interest thereon,
on November 16, 2004.
Section 2.3 GLOBAL SENIOR NOTES. If distributed to holders
of Preferred Securities in connection with the involuntary or voluntary
liquidation and dissolution of the Trust:
(a) The Senior Notes in certificated form may be
presented to the Trustee by the Property Trustee in exchange for a
Global Security in the form of Exhibit A in an aggregate principal
amount equal to all Outstanding Senior Notes (a "Global Senior Note").
The Depositary for the Global Senior Notes will be The Depository Trust
Company. The Global Senior Note will be registered in the name of the
Depositary or its nominee, Cede & Co., and delivered by the Trustee to
the Depositary or a custodian appointed by the Depositary for crediting
to the accounts of its participants pursuant to the instructions of the
Regular Trustees. The Company upon any such presentation shall execute
a Global Senior Note in such aggregate principal amount and deliver the
same to the Trustee for authentication and delivery in accordance with
the Indenture and this Twelfth Supplemental Indenture. Payments on the
Senior Notes issued as a Global Senior Note will be made to the
Depositary or its nominee.
(b) If any Preferred Securities are held in non
book-entry certificated form ("Non Book-Entry Preferred Securities") ,
the Senior Notes in certificated form may be presented to the Trustee
by the Property Trustee, and such Non Book-Entry Preferred Securities
will be deemed to represent beneficial interests in Senior Notes
presented to the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the Non
Book-Entry Preferred Securities until the Preferred Security
Certificates representing such Non Book-Entry Preferred Securities are
presented to the Security Registrar for transfer or reissuance, at
which time such Preferred Security Certificates will be canceled and a
Senior Note registered in the name of the holder of the Preferred
Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred
Security Certificate canceled will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance
with the Indenture and this Twelfth Supplemental Indenture. On issue of
such Senior Notes, Senior Notes with an equivalent aggregate principal
amount that were presented by the Property Trustee to the Trustee will
be deemed to have been canceled.
Section 2.4 INTEREST. (a) Each Senior Note will bear
interest at the rate of ___% per annum from September __, 1999 until the
Purchase Contract Settlement Date, and at the Reset Rate thereafter, payable
quarterly in arrears on February 16, May 16, August 16 and November 16 of
each year, commencing November 16, 1999 (the "Interest Payment Dates").
(b) The Regular Record Dates for the payment of
interest on the Senior Notes on any Interest Payment Date, shall be (i) as
long as the Senior Notes are represented by a Global Senior Note, the
Business Day preceding each Interest Payment Date or (ii) if the Senior Notes
are issued in certificated form, the fifteenth Business Day prior to each
Interest Payment Date.
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(c) The interest rate on the Senior Notes outstanding
on and after the Remarketing Date will be reset to the Reset Rate. The Reset
Rate will be equal to the rate per annum that results from the Remarketing,
provided that if a Failed Remarketing occurs, the Reset Rate will be equal to
(i) the Two-Year Benchmark Treasury Rate plus (ii) the Applicable Margin.
(d) The amount of interest payable on the Senior Notes
for any period will be computed (i) for any full quarterly period on the
basis of a 360-day year of twelve 30-day months and (ii) for any period
shorter than a full quarterly period, on the basis of a 30-day month and, for
any period less than a month, on the basis of the actual number of days
elapsed per 30-day month. In the event that any date on which interest is
payable on the Senior Notes is not a Business Day, then payment of the
interest payable on such date will be made on the next day that is a Business
Day (and without interest or other payment in respect of any such delay),
except that, if such Business Day is in the next calendar year, then such
payment will be made on the preceding Business Day.
Section 2.5 REDEMPTION. (a) If a Tax Event occurs and is
continuing, the Company may, at its option and upon not less than 30 nor more
than 60 days' notice to the Holders of the Senior Notes, redeem the Senior
Notes in whole (but not in part) within 90 days following the occurrence of
such Tax Event, at a price equal to, for each Senior Note, the Redemption
Price. The aggregate Redemption Price shall be paid prior to 12:00 noon, New
York City time, on the date of redemption (the "Tax Event Redemption Date")
or such earlier time as the Company determines, provided that the Company
shall have deposited with the Trustee an amount sufficient to pay the
aggregate Redemption Price by 10:00 a.m. on the Tax Event Redemption Date.
Such redemption shall otherwise be in accordance with the provisions of
Article Eleven of the Indenture.
(b) Except as provided in Section 2.5(a), the Company
will have no right to redeem the Senior Notes.
(c) The Senior Notes will not be subject to a sinking
fund provision.
Section 2.6 EVENTS OF DEFAULT. So long as the Senior Notes
are held by the Trust, it shall be an Event of Default with respect to the
Senior Notes if the Trust shall have voluntarily or involuntarily dissolved,
wound up its business or otherwise terminated its existence except in
connection with (i) the distribution of the Senior Notes held by the Trust to
the holders of the Preferred Securities and Common Securities in liquidation
of their interests in the Trust, (ii) the redemption of all of the
outstanding Preferred Securities and Common Securities or (iii) a
consolidation, conversion, amalgamation, merger or other transaction
involving the Trust that is permitted under Section 3.15 of the Declaration.
Section 2.7 PAYING AGENT; SECURITY REGISTRAR. If the Senior
Notes are issued in certificated form, the Paying Agent and the Security
Registrar for the Senior Notes shall be the Corporate Trust Office.
Section 2.8 EXTENSION OF INTEREST PAYMENT PERIOD. The
Company shall have the right at any time, and from time to time, during the
term of the Senior Notes, to defer payments of interest by extending the
interest payment period of such Senior Notes for a period not extending, in
the aggregate, beyond the Maturity Date of the Senior Notes (the "Extension
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Period"), during which Extension Period no interest shall be due and payable.
To the extent permitted by applicable law, interest, the payment of which has
been deferred because of the extension of the interest payment period
pursuant to this Section 2.8, will bear interest thereon at the rate of ___%
until November 16, 2002, and at the Reset Rate thereafter compounded
quarterly for each quarter of the Extension Period ("Compounded Interest").
At the end of the Extension Period, the Company shall pay all interest
accrued and unpaid on the Senior Notes and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders of the Senior Notes
in whose names the Senior Notes are registered in the Security Register on
the first Record Date after the end of the Extension Period. During any such
Extension Period or an Event of Default, however, the Company shall not (a)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities that rank junior to the Senior Notes
in the right of payment issued by the Company, or (b) make any guarantee
payments with respect to any guarantee by the Company of any securities of
any of its subsidiaries if such guarantee ranks junior to the Senior Notes in
right of payment or (c) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock, except for or as a result of dividends or
distributions in, or options, warrants or rights to subscribe for or
purchase, the Company's common stock; any declaration of a dividend in
connection with the implementation of a shareholder's rights plan, or the
issuance of shares under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto; a reclassification of the
Company's capital stock solely into shares of one or more classes or series
of the Company's capital stock or the exchange or conversion of one class or
series of the Company's capital stock for or into another class or series of
the Company's capital stock; the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged; and the purchase of the Company's common stock in connection with
the Company's normal course issuer bid-purchases for the satisfaction by the
Company of its obligations under any benefit plans for the Company and the
Company's subsidiaries' directors, officers or employees of the Company's
dividend reinvestment plans. Prior to the expiration of any Extension Period,
the Company may further extend such period, provided that such period
together with all such previous and further extensions thereof shall not
extend beyond the Maturity Date of the Senior Notes. Upon termination of any
Extension Period and the payment of all Deferred Interest then due, the
Company may commence a new Extension Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extension Period
except at the end thereof, but the Company, at its option, may prepay on any
Interest Payment Date all or any portion of the interest accrued during the
then elapsed portion of an Extension Period.
Section 2.9. NOTICE OF EXTENSION. The Company shall give
written notice to the Indenture Trustee of its election of any Extension
Period (or any further extension thereof) at least five Business Days before
the earlier of (i) the date the interest on the Senior Notes would have been
payable except for the election to begin or extend the Extension Period; (ii)
the date the Indenture Trustee is required to give notice to any securities
exchange or to Holders of Senior Notes of the Record Date or the Interest
Payment Date, and (iii) the Record Date.
Section 2.10. PLACE OF PAYMENT. The Place of Payment will
be initially the corporate trust offices of the Trustee which, at the date
hereof, are located at Xxx Xxxx Xxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Administration Department.
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Section 2.11. LIMITATION ON ISSUANCE OF MORTGAGE BONDS. The
Company will not issue any Mortgage Bonds under its General Mortgage
Indenture and Deed of Trust, dated September 15, 1988, between the Company
and Commerce Bank of Kansas City, N.A., as Trustee (the "General Mortgage"),
without making effective provision, and the Company covenants that in any
such case effective provisions will be made, whereby the Senior Notes shall
be directly secured by the General Mortgage equally and ratably with any and
all other obligations and indebtedness thereby secured.
ARTICLE III
FORM OF SENIOR NOTE
Section 3.1. FORM OF SENIOR NOTE. The Form of Senior Note
shall be substantially in the Form of Exhibit B attached hereto. The terms of
such Senior Note are herein incorporated by reference and are part of this
Twelfth Supplemental Indenture.
ARTICLE IV
EXPENSES
Section 4.1 PAYMENT OF EXPENSES. In connection with the
offering, sale and issuance of the Senior Notes to the Trust in connection
with the sale of the Preferred Securities and Common Securities by the Trust,
the Company will:
(a) pay for all costs and expenses relating to the
offering, sale and issuance of the Senior Notes, including compensation
of the Trustee under the Indenture in accordance with the provisions of
Section 607 of the Indenture; and
(b) pay for all costs and expenses of the Trust,
including, but not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale and issuance of the Trust
Securities; the fees and expenses of the Property Trustee (including,
without limitation, those incurred in connection with the enforcement
by the Property Trustee of the rights of the holders of the Preferred
Securities), the Delaware Trustee and the Regular Trustees; the costs
and expenses relating to the operation of the Trust (including, without
limitation, costs and expenses of accountants, attorneys, statistical
or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses); and costs and expenses incurred in
connection with the acquisition, financing and disposition of Trust
assets;
(c) be primarily liable for any indemnification
obligations arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the
Trust.
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ARTICLE V
COVENANTS
Section 5.1 COVENANTS IN THE EVENT OF AN EVENT OF DEFAULT.
As long as the Senior Notes are held by the Trust, if an Event of Default
occurs and written notice of such event has been given to the Company, then
the Company may not:
(a) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect
to, any of its capital stock; or
(b) make any payment of principal, interest or premium,
if any, on or repay, repurchase or redeem any debt securities that rank
on a parity with or junior in interest to the Senior Notes or make any
guarantee payments with respect to any guarantee by the Company of the
debt securities of any subsidiary of the Company if such guarantee
ranks on a parity with or junior in interest to the Senior Notes; other
than (i) purchases or acquisitions of capital stock of the Company in
connection with the satisfaction by the Company of its obligations
under any employee benefit plans or the satisfaction by the Company of
its obligations pursuant to any contract or security outstanding on the
date of such Event of Default requiring the Company to purchase capital
stock of the Company, (ii) as a result of a reclassification of the
Company's capital stock for another class or series of the Company's
capital stock, (iii) the purchase of fractional interests in shares of
the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (iv) dividends or distributions in capital stock of the
Company, (v) redemptions or repurchases of any rights pursuant to a
rights agreement and (vi) payments under the Guarantee.
Section 5.2 ADDITIONAL COVENANTS RELATING TO THE TRUST. For
as long as the Preferred Securities remain outstanding, the Company will:
(a) maintain, directly or indirectly, 100% ownership of
the Common Securities;
(b) cause the Trust to remain a statutory business trust
and not to voluntarily dissolve, wind up, liquidate or be terminated,
except as permitted by the Declaration;
(c) use its commercially reasonable efforts to ensure
that the Trust will not be an "investment company" required to be
registered under the Investment Company Act of 1940;
(d) not take any action that would be reasonably likely
to cause the Trust to be classified as an association or a publicly
traded partnership taxable as a corporation for United States federal
income tax purposes; and
(e) pay all of the debts and obligations of the Trust
(other than with respect to the securities issued by the Trust) and all
costs and expenses of the Trust (including, but not limited to, all
costs and expenses relating to the organization of the Trust, the fees
and expenses of the trustees and all costs and expenses relating to the
operation of the Trust)
9
and any and all taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed on the Trust
by the United States, or any other taxing authority, so that the net
amounts received and retained by the Trust after paying such expenses
will be equal to the amounts the Trust would have received had no such
costs or expenses been incurred by or imposed on the Trust.
ARTICLE VI
ORIGINAL ISSUE OF SENIOR NOTES
Section 6.1 ORIGINAL ISSUE OF SENIOR NOTES. Senior Notes in
an aggregate principal amount of up to $[231,675,000] may, upon execution of
this Twelfth Supplemental Indenture, be executed by the Company and delivered
to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Senior Notes upon receipt of a Company Order,
without any further action by the Company.
ARTICLE VII
RIGHTS OF HOLDERS OF PREFERRED SECURITIES
Section 7.1 PREFERRED SECURITY HOLDERS' RIGHTS.
Notwithstanding Section 507 of the Indenture, if the Property Trustee fails
to enforce its rights under the Senior Notes after a holder of Preferred
Securities has made a written request, the holder of Preferred Securities
may, to the fullest extent permitted by law, institute a legal proceeding
directly against the Company to enforce the Property Trustee's rights under
the Indenture without first instituting any legal proceeding against the
Property Trustee or any other Person.
Section 7.2 DIRECT ACTION. Notwithstanding any other
provision of the Indenture, for as long as any Preferred Securities remain
outstanding, to the fullest extent permitted by law, if an Event of Default
has occurred and is continuing and such event is attributable to the failure
of the Company to pay interest or principal on the Senior Notes on the date
such interest or principal is otherwise payable (or in the case of
redemption, the redemption date), then a holder of Preferred Securities may
institute a proceeding directly against the Company (a "Direct Action") to
enforce payment to such holder of the principal or interest on Senior Notes
having an aggregate principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such holder.
Section 7.3 PAYMENTS PURSUANT TO DIRECT ACTIONS. The Company
will have the right to set off against its obligations to the Trust, as
Holder of the Senior Notes, any payment made to a holder of Preferred
Securities in connection with a Direct Action.
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ARTICLE VIII
REMARKETING
Section 8.1 EFFECTIVENESS OF THIS ARTICLE. Upon a
distribution of the Senior Notes upon the liquidation and dissolution of the
Trust which occurs prior to the Remarketing of the Preferred Securities
pursuant to the Declaration, the Senior Notes shall be Remarketed in
accordance with the Remarketing Procedures where all references in the
Remarketing Procedures to Preferred Securities shall be read as references to
the Senior Notes, unless the context requires otherwise. Until such a
distribution, or if such distribution occurs after the Remarketing of the
Preferred Securities pursuant to the Declaration, this Article VIII will have
no effect.
ARTICLE IX
MISCELLANEOUS
Section 9.1. EXECUTION OF SUPPLEMENTAL INDENTURE. This
Twelfth Supplemental Indenture is executed and shall be construed as an
indenture supplemental to the Indenture and, as provided in the Indenture,
this Twelfth Supplemental Indenture forms a part thereof.
Section 9.2. CONFLICT WITH TRUST INDENTURE ACT. If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Twelfth Supplemental Indenture by
any of the provisions of the Trust Indenture Act, such required provision
shall control.
Section 9.3. EFFECT OF HEADINGS. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
Section 9.4. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Twelfth Supplemental Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 9.5. SEPARABILITY CLAUSE. In case any provision in
this Twelfth Supplemental Indenture or in the Senior Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 9.6. BENEFITS OF TWELFTH SUPPLEMENTAL INDENTURE.
Nothing in this Twelfth Supplemental Indenture or in the Senior Notes,
express or implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the holders, any benefit or any legal or
equitable right, remedy or claim under this Twelfth Supplemental Indenture.
Section 9.7. GOVERNING LAW. This Twelfth Supplemental
Indenture and each Senior Note shall be deemed to be a contract made under
the laws of the State of New York, and for all purposes shall be governed by
and construed in accordance with the laws of said State.
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Section 9.8. EXECUTION AND COUNTERPARTS. This Twelfth
Supplemental Indenture may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Twelfth Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of the day and
year first above written.
UTILICORP UNITED INC.
[Seal] By:
----------------------------------
Name: Xxxx X. Xxxx
Title: Vice President,
Finance
Attest:
------------------------------
Title: Asst. Treasurer
BANK ONE TRUST COMPANY, NA
as Trustee
[Seal] By:
---------------------------------
Name:
Title:
Attest:
------------------------------
Title: Trust Officer
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STATE OF )
--------------
) ss.:
COUNTY OF )
-------------
On the ____ day of ________, 199_, before me personally
came _____________________, to me known, who, being by me duly sworn, did
depose and say that he is _________________________ of UtiliCorp United Inc.,
the corporation described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto
by like authority.
-------------------------------
Notary Public,
State of
---------------
STATE OF )
--------------
) ss.:
COUNTY OF )
-------------
On the ____ day of ________, 199_, before me personally
came ________________, to me known, who, being by me duly sworn, did depose
and say that he is ________________ of Bank One Trust Company, NA, the
national banking association described in and which executed the foregoing
instrument; that he knows the seal of said association; that the seal affixed
to said instrument is such association seal; that it was so affixed by
authority of the Board of Directors of said association, and that he signed
his name thereto by like authority.
-------------------------------
Notary Public,
State of
---------------
EXHIBIT A
[FORM OF FACE OF SENIOR NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR
OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
REGISTERED REGISTERED
UTILICORP UNITED INC.
_____% SENIOR NOTE DUE 2004
No.
-------------------
UTILICORP UNITED INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises ________________, or registered assigns, the
principal sum of _______ Dollars on November 16, 2004, and to pay interest on
said principal sum from September 29, 1999, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, quarterly
in arrears on February 16, May 16, August 16 and November 16 of each year (an
"Interest Payment Date") commencing November 16, 1999, at the rate of _____%
per annum until November 16, 2002, and at the Reset Rate thereafter, until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable for any period will be computed (1)
for any full quarterly period on the basis of a 360-day year of twelve 30-day
months and (2) for any period shorter than a full quarterly period, on the
basis of a 30-day month and, for any period less than a month, on the basis
of the actual number of days elapsed per 30-day month. In the event that any
date on which interest is payable is not a Business Day, then payment of the
interest payable on such date will be made on the next day that is a Business
Day (and without any interest or other payment in respect of such delay),
except that, if such Business Day is in the next calendar year, then such
payment will be made on the preceding Business Day. The interest installment
so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the
Indenture, referred to on the reverse side hereof, be paid to the person in
whose name this Security (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the Regular
Record Date for such interest installment, which, if this Security is a
Global Security, shall be the close of business on the Business Day preceding
such Interest Payment Date or, if this Security is not a Global Security,
shall be the close of business on the 15th Business Day preceding such
Interest Payment Date. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered
Holder on such Regular Record Date, and may be paid to the Holder in whose
name this Security (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee
referred to on the reverse side hereof for the payment of such defaulted
interest, notice whereof shall be given to the Holders of the Security not
less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Security may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
Payment of the principal of and premium, if any, and
interest on this Security will be made at the office or agency of the Trustee
maintained for that purpose in such coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. The Company may pay interest by mailing a dollar check to the
Holder's registered address or, upon application by the holder hereof to the
Register, not later than the applicable Record Date, by wire transfer to a
dollar account maintained by the holder (if the holder of the Security holds
an aggregate principal amount of Securities in excess of $5,000,000).
Interest on the Securities is deferrable in accordance with
the terms of the Twelfth Supplemental Indenture.
This Security is, to the extent provided in the Indenture,
unsecured and will rank in right of payment on a parity with all other
unsecured and unsubordinated obligations of the Company.
Unless the Certificate of Authentication hereon has been
executed by the Trustee or an Authenticating Agent, by manual signature of
one of its Authorized Officers, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose. The
provisions of this Security are continued on the reverse side hereof, and
such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
UTILICORP UNITED INC.
By:
---------------------------
Attest:
By:
--------------------------
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
Dated: BANK ONE TRUST COMPANY, NA, as
------------------------ Trustee
By:
---------------------------
Authorized Officer
3
(FORM OF REVERSE OF SENIOR NOTE)
UTILICORP UNITED INC.
____% SENIOR NOTE DUE 2004
This Senior Note is one of a duly authorized series of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of November 1,
1990, as amended and supplemented (as amended and supplemented, the
"Indenture"), between the Company and Bank One Trust Company, NA (formerly
know as The First National Bank of Chicago), as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $[231,750,000].
All terms used in this Senior Note that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Security is not subject to any sinking fund, nor may
this Security be redeemed at the option of the Company prior to the Maturity
Date.
Interest payments for this Security will be computed and
paid on the basis of a 360-day year of twelve 30-day months. If an Interest
Payment Date falls on a day that is not a Business Day, such Interest Payment
Date will be the following day that is a Business Day.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
If a Tax Event occurs and is continuing, the Company may,
at its option and upon not less than 30 nor more than 60 days' notice to the
Holders of the Senior Notes, redeem the Senior Notes in whole (but not in
part) within 90 days following the occurrence of such Tax Event at the
Redemption Price. The Redemption Price shall be paid prior to 12:00 noon, New
York City time, on the Tax Event Redemption Date, by check or wire transfer
in immediately available funds at such place and to such account as may be
designated by each such Holder.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than 66 2/3% in
principal amount of the Securities at the time Outstanding of all series to
be affected (voting as a class). The Indenture also contains provisions
permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities
registered in the names of Persons other than the Depositary with respect to
such series or its nominee only as provided in this paragraph. This Security
shall be so exchangeable if (x) the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary for such series or at any
time ceases to be a clearing agency registered as such under the Securities
Exchange Act of 1934, (y) the Company executes and delivers to the Trustee an
Officers' Certificate providing that this Security shall be so exchangeable
or (z) there shall have occurred and be continuing an Event of Default with
respect to the Securities of such series. Securities so issued in exchange
for this Security shall be of the same series, having the same interest rate,
if any, and maturity and having the same terms as this Security, in
authorized denominations and in the aggregate having the same principal
amount as this Security and registered in such names as the Depositary for
such Global Security shall direct.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of a Security of the series of
which this Security is a part is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and premium, if
any, and interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of the series of which this Security is a
part are issuable only in registered form without coupons in denominations of
$25 and in integral multiples thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be
2
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
3
EXHIBIT B
[FORM OF FACE OF SENIOR NOTE]
REGISTERED REGISTERED
UTILICORP UNITED INC.
_____% SENIOR NOTE DUE 2004
No.
------------------
UTILICORP UNITED INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises ________________, or registered assigns, the
principal sum of _______ Dollars on November 16, 2004, and to pay interest on
said principal sum from September 29, 1999, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, quarterly
in arrears on February 16, May 16, August 16 and November 16 of each year (an
"Interest Payment Date") commencing November 16, 1999, at the rate of _____%
per annum until November 16, 2002, and at the Reset Rate thereafter, until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable for any period will be computed (1)
for any full quarterly period on the basis of a 360-day year of twelve 30-day
months and (2) for any period shorter than a full quarterly period, on the
basis of a 30-day month and, for any period less than a month, on the basis
of the actual number of days elapsed per 30-day month. In the event that any
date on which interest is payable is not a Business Day, then payment of the
interest payable on such date will be made on the next day that is a Business
Day (and without any interest or other payment in respect of such delay),
except that, if such Business Day is in the next calendar year, then such
payment will be made on the preceding Business Day. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, referred to on the reverse side
hereof, be paid to the person in whose name this Security (or one or more
Predecessor Securities, as defined in said Indenture) is registered at the
close of business on the Regular Record Date for such interest installment,
which, if this Security is a Global Security, shall be the close of business
on the Business Day preceding such Interest Payment Date or, if this Security
is not a Global Security, shall be the close of business on the 15th Business
Day preceding such Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to
the registered Holder on such Regular Record Date, and may be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by
the Trustee referred to on the reverse side hereof for the payment of such
defaulted interest, notice whereof shall be given to the Holders of the
Security not less than 10 days prior to such Special
4
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
Payment of the principal of and premium, if any, and
interest on this Security will be made at the office or agency of the Trustee
maintained for that purpose in such coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. The Company may pay interest by mailing a dollar check to the
Holder's registered address or, upon application by the holder hereof to the
Register, not later than the applicable Record Date, by wire transfer to a
dollar account maintained by the holder (if the holder of the Security holds
an aggregate principal amount of Securities in excess of $5,000,000).
Interest on the Securities is deferrable in accordance with
the terms of the Twelfth Supplemental Indenture.
This Security is, to the extent provided in the Indenture,
unsecured and will rank in right of payment on a parity with all other
unsecured and unsubordinated obligations of the Company.
Unless the Certificate of Authentication hereon has been
executed by the Trustee or an Authenticating Agent, by manual signature of
one of its Authorized Officers, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose. The
provisions of this Security are continued on the reverse side hereof, and
such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
5
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
UTILICORP UNITED INC.
By:
---------------------------
Attest:
By:
--------------------------
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
Dated: BANK ONE TRUST COMPANY, NA, as
----------------------- Trustee
By:
--------------------------
Authorized Officer
6
(FORM OF REVERSE OF SENIOR NOTE)
UTILICORP UNITED INC.
____% SENIOR NOTE DUE 2004
This Senior Note is one of a duly authorized series of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of November 1,
1990, as amended and supplemented (as amended and supplemented, the
"Indenture"), between the Company and Bank One Trust Company, NA (formerly
know as The First National Bank of Chicago), as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $[231,750,000].
All terms used in this Senior Note that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Security is not subject to any sinking fund, nor may
this Security be redeemed at the option of the Company prior to the Maturity
Date.
Interest payments for this Security will be computed and
paid on the basis of a 360-day year of twelve 30-day months. If an Interest
Payment Date falls on a day that is not a Business Day, such Interest Payment
Date will be the following day that is a Business Day.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
If a Tax Event occurs and is continuing, the Company may,
at its option and upon not less than 30 nor more than 60 days' notice to the
Holders of the Senior Notes, redeem the Senior Notes in whole (but not in
part) within 90 days following the occurrence of such Tax Event at the
Redemption Price. The Redemption Price shall be paid prior to 12:00 noon, New
York City time, on the Tax Event Redemption Date, by check or wire transfer
in immediately available funds at such place and to such account as may be
designated by each such Holder.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than 66 2/3% in
principal amount of the Securities at the time Outstanding of all series to
be affected (voting as a class). The Indenture also contains provisions
permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of a Security of the series of
which this Security is a part is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and premium, if
any, and interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of the series of which this Security is a
part are issuable only in registered form without coupons in denominations of
$25 and in integral multiples thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
