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WESTERN RESOURCES, INC.
TO
XXXXXX TRUST AND SAVINGS BANK
as Trustee
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THIRTY-FOURTH SUPPLEMENTAL INDENTURE
Dated as of June 28, 2000
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TABLE OF CONTENTS/a/
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Page
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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
2003 SERIES
SECTION 1. General Description of Bonds of the 2003 Series...........................................6
SECTION 2. Denominations of Bonds of the 2003 Series and privilege of exchange.......................7
SECTION 3. Form of Bonds of the 2003 Series..........................................................7
SECTION 4. Execution and Form of Temporary Bonds of the 2003 Series.................................11
ARTICLE II
ISSUE OF BONDS OF THE 2003 SERIES
SECTION 1. Limitations as to principal amount.......................................................12
SECTION 2. Execution and Delivery of Bonds of the 2003 Series.......................................12
a Note: The Table of Contents is not part of this Supplemental Indenture and
should not be considered as such. It is included only for purposes of
convenience.
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ARTICLE III
REDEMPTION
SECTION 1. Bonds of the 2003 Series are redeemable prior to maturity only upon a demand therefor by the
Collateral Agent.............................................................................12
SECTION 2. Article VIII of Original Indenture Controlling..................................................12
SECTION 3. Article V of Original Indenture Controlling.....................................................13
SECTION 4. Bonds redeemed may be used to authenticate any deliver additional Bonds under
Original Indenture...........................................................................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 electric
properties...................................................................................13
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 2003 Series remain outstanding:
Bonds issuable on basis only of 60% of net bondable value of property
additions not subject to an unfunded prior lien..............................................14
Amendment of definition of net bondable value of property additions
not subject to an unfunded prior lien........................................................14
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...............................................................14
Amendment of definition of net bondable value of property additions
subject to an unfunded prior lien............................................................15
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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
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.................................16
SECTION 2. Facsimile Signatures............................................................................17
SECTION 3. Reservation of Right to Amend Article VII.......................................................17
SECTION 4. Reservation of Right to Delete certain requirements and conditions..............................20
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 1. Acceptance of Trust.............................................................................20
SECTION 2. Responsibility and Duty of Trustee..............................................................20
SECTION 3. Parties to include successors and assigns.......................................................21
SECTION 4. Benefits restricted to parties and to holders of Bonds and coupons..............................21
SECTION 5. Execution in counterparts.......................................................................21
SECTION 6. Titles of Articles not part of the Thirty-Fourth Supplemental Indenture.........................21
TESTIMONIUM.................................................................................................S-1
SIGNATURES AND SEALS........................................................................................S-1
ACKNOWLEDGMENTS.............................................................................................S-2
APPENDIX A
DESCRIPTION OF PROPERTIES
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THIRTY-FOURTH SUPPLEMENTAL INDENTURE, dated as of the 28th day of June, 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 March 31, 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 Indenture April 1, 1949 2-7/8% Series 10,000,000 None
Due 1979
Fourth Supplemental Indenture October 1, 1949 2-3/4% Series 6,500,000 None
Due 1979
Fifth Supplemental Indenture December 1, 1949 2-3/4% Series 32,500,000 None
Due 1984
Seventh Supplemental December 1, 1951 3-1/4% Series 5,250,000 None
Indenture Due 1981
Eighth Supplemental Indenture May 1, 1952 3-1/4% Series 4,750,000 None
Due 1982
Ninth Supplemental Indenture October 1, 1954 3-1/8% Series 8,000,000 None
Due 1984
Tenth Supplemental Indenture September 1, 1961 4-3/4% Series 13,000,000 None
Due 1991
Eleventh Supplemental April 1, 1969 7-5/8% Series 19,000,000 None
Indenture Due 1999
Twelfth Supplemental September 1, 1970 8-3/4% Series 20,000,000 None
Indenture Due 2000
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
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
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; 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 Thirty-Fourth Supplemental Indenture
(hereinafter referred to as this "Supplemental Indenture") to supplement the
Original Indenture and to provide for the creation of a new series of bonds
under the Original Indenture to be designated "First Mortgage Bonds, 9-1/2%
Series Due 2003"; 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 other properties heretofore specifically subjected to the lien
of the Indenture and not heretofore released from the lien thereof), that is to
say:
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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.
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.
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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;
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.
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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
2003 Series
SECTION 1. The 2003 series of Bonds to be executed, authenticated and
delivered under and secured by the Original Indenture shall be designated as
"First Mortgage Bonds, 9-1/2% Series Due 2003" of the Company (herein called
"Bonds of the 2003 Series"). The Bonds of the 2003 Series shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, all of the terms, conditions and covenants of the
Original Indenture, as amended, and subject to all the terms, conditions and
covenants of this Supplemental Indenture.
Bonds of the 2003 Series shall mature March 17, 2003 and shall bear
interest at the rate of nine and one-half percent (9-1/2%) per annum payable
(subject to the fifth paragraph of this Section 1) on the interest payment dates
for the Loans (as defined below). Every Bond of the 2003 Series shall be dated
the date of authentication except that, notwithstanding the provisions of
Section 6 of Article II of the Original Indenture, if at the time of
authentication of any Bond of the 2003 Series interest shall be in default on
any Bonds of the 2003 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 2003 Series, as
the case may be, or, if no interest has been paid or made available for payment,
as of the date of initial authentication and delivery of such Bond. Every Bond
of the 2003 Series shall bear interest from each interest payment date for the
Loans next preceding the date thereof, unless no interest has been paid on this
Bond, in which case from June 28, 2000.
The person in whose name any Bond of the 2003 Series is registered on any
interest payment date shall be entitled to receive the interest payable thereon
on 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 Bonds of the 2003 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.
All Bonds of the 2003 Series shall be issued and pledged by the Company to
the Collateral Agent pursuant to a Collateral Agreement dated as of June 28,
2000 among the Company and The Chase Manhattan Bank (in such capacity, the
"Collateral Agent") to secure the payment of the principal of, and up to 9-1/2%
per annum of the interest on any of the loans issued pursuant to the
$600,000,000 Credit Agreement, dated as of June 28, 2000 among the Company, The
Chase Manhattan Bank, as administrative agent, and the lenders party thereto,
and the Five-Year Competitive Advance and Revolving Credit Facility Agreement,
dated as of March 17, 1998, among the Company, The Chase Manhattan Bank, as
administrative agent, and the lenders party thereto (such agreements,
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in each case, as amended, supplemented or otherwise modified from time to time,
are referred to collectively herein as the "Credit Agreements" and the loans
thereunder are referred to collectively as the "Loans").
The obligation of the Company to make payments with respect to the
principal of and interest on Bonds of the 2003 Series (including without
limitation upon maturity thereof) shall be fully or partially, as the case may
be, satisfied and discharged to the extent that, at the time that any such
payment shall be due, the then due principal of and interest on the Loans shall
have been fully or partially paid, or there shall be held by the Collateral
Agent pursuant to the Collateral Agreement sufficient available funds to fully
or partially pay the then due principal of and interest on the Loans.
Notwithstanding any other provisions of the Indenture, interest on the Bonds of
the 2003 Series shall be deemed fully or partially satisfied and discharged as
provided herein even if the interest rate on Bonds of the 2003 Series may be
higher or lower than the interest rate on any of the Loans at the time interest
on any such Loans is paid. The Trustee may conclusively presume that the
obligation of the Company to make payments with respect to the principal of and
interest on Bonds of the 2003 Series shall have been fully satisfied and
discharged unless and until the Trustee shall have received a written notice
from the Collateral Agent, signed by an authorized officer, stating (i) that
timely payment of the principal of or interest on the Loans required to be made
by the Company has not been made, (ii) that there are not sufficient available
funds held by the Collateral Agent pursuant to the Collateral Agreement to make
such payment and (iii) the amount of funds, in addition to available funds held
by the Collateral Agent pursuant to the Collateral Agreement, required to make
such payment.
SECTION 2. The Bonds of the 2003 Series shall be registered bonds without
coupons of the denominations of $5,000 and of any multiples of $5,000, numbered
consecutively from R 1 upwards. Bonds of the 2003 Series may each be exchanged
for other bonds within the same Series in authorized denominations and in the
same aggregate principal amounts, without charge, except for any tax or
governmental charge imposed in connection with such interchange.
SECTION 3. The Bonds of the 2003 Series, and the Trustee's Certificate with
respect thereto, shall be substantially in the following forms, respectively:
[FORM OF BOND OF THE 2003 SERIES]
This bond is not transferable, except as permitted under the Collateral
Agreement dated as of June 28, 2000 among Western Resources, Inc. and The Chase
Manhattan Bank.
WESTERN RESOURCES, INC.
(Incorporated under the laws of the State of Kansas)
FIRST MORTGAGE BOND, 9-1/2% SERIES DUE 2003
DUE March 17, 2003
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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 17th day of March, 2003, 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 interest payment date with respect to the Loans (as defined
below) next preceding the date of this Bond next preceding the date thereof,
unless no interest has been paid on this Bond, in which case from June 28, 2000,
at the rate of nine and one-half percent (9-1/2%) per annum, payable (subject to
the fourth paragraph hereof) on each interest payment date with respect to the
Loans, until maturity, or, if this Bond shall be duly called for redemption,
until the redemption date, 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 interest payment date as aforesaid will
be paid to the person in whose name this Bond is registered on any 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 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 in immediately available funds.
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 thirty-fourth
indenture supplemental thereto dated as of June 28, 2000 (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, 9-1/2% Series Due
2003" (herein called "Bonds of the 2003 Series") of the Company, issued under
and secured by the Indenture executed by the Company to the Trustee.
All Bonds of the 2003 Series shall be issued and pledged by the Company to
the Collateral Agent pursuant to a Collateral Agreement dated as of June 28,
2000, among the Company and The Chase Manhattan Bank (in such capacity, the
"Collateral Agent") to secure the payment of the principal of, and up to 9-1/2%
per annum of the interest on any of the loans issued pursuant to the
$600,000,000 Credit Agreement, dated as of June 28, 2000 among the Company, The
Chase Manhattan Bank, as administrative agent, and the lenders party thereto,
and the Five-Year Competitive Advance and Revolving Credit Facility Agreement,
dated as of March 17, 1998, among the Company, The Chase Manhattan Bank, as
administrative agent and the lenders party thereto, (such agreements,
-9-
in each case, as amended, supplemented or otherwise modified from time to time,
are referred to collectively herein as the "Credit Agreements" and the loans
issued thereunder are referred to collectively as the "Loans").
The obligation of the Company to make payments with respect to the
principal of and interest on Bonds of the 2003 Series (including without
limitation upon maturity hereof) shall be fully or partially, as the case may
be, satisfied and discharged to the extent that, at the time that any such
payment shall be due, the then due principal of and interest on the Loans shall
have been fully or partially paid, or there shall be held by the Collateral
Agent pursuant to the Collateral Agreement sufficient available funds to fully
or partially pay the then due principal of and interest on the Loans. The
Trustee may conclusively presume that the obligation of the Company to make
payments with respect to the principal of and interest on Bonds of the 2003
Series shall have been fully satisfied and discharged unless and until the
Trustee shall have received a written notice from the Collateral Agent, signed
by an authorized officer, stating (i) that timely payment of the principal of or
interest on the Loans required to be made by the Company has not been made, (ii)
that there are not sufficient available funds held by the Collateral Agent
pursuant to the Collateral Agreement to make such payment and (iii) the amount
of funds, in addition to available funds held by the Collateral Agent pursuant
to the Collateral Agreement, required to make such payment. Notwithstanding any
other provisions of this Bond or the Indenture, interest on the Bonds of the
2003 Series shall be deemed fully satisfied and discharged as provided herein
and therein even if the interest rate on Bonds of the 2003 Series may be higher
or lower than the interest rate on any of the Loans at the time interest on any
of the Loans is paid.
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 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 2003 Series are redeemable prior to maturity only upon a
demand therefor by the Collateral Agent as set forth in Article III of the
Supplemental Indenture.
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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, 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.
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.
IN WITNESS WHEREOF, WESTERN RESOURCES, INC. has caused this Bond to be
signed in its name by its Chairman of the Board, President and Chief Executive
Officer or a Vice President, manually or by facsimile, and its corporate seal
(or a facsimile thereof) to be hereto affixed and attested by its Secretary or
an Assistant Secretary, manually or by facsimile.
Dated:
WESTERN RESOURCES, INC.
By________________________
Attest:
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[FORM OF TRUSTEE'S CERTIFICATE]
This Bond is one of the Bonds, of the series designated herein, described
in the within-mentioned Mortgage and Deed of Trust of July 1, 1939 and
Supplemental Indenture dated as of June 28, 2000.
XXXXXX TRUST AND SAVINGS BANK,
Trustee,
By ____________________________
SECTION 4. Until Bonds of the 2003 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 2003 Series in
temporary form, as provided in Section 9 of Article II of the Original
Indenture.
ARTICLE II
Issue of Bonds of the 2003 Series
SECTION 1. The total principal amount of Bonds of the 2003 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 2003 Series for the aggregate principal amount of
$397,800,000 may forthwith be executed by the Company and delivered to the
Trustee and shall be authenticated by the Trustee and delivered (either before
or after the filing or recording hereof) to or upon the order of the Company,
upon receipt by the Trustee of the resolutions, certificates, instruments and
opinions required by Article III and Article XVIII of the Original Indenture, as
amended.
ARTICLE III
Redemption
SECTION 1. Bonds of the 2003 Series are redeemable prior to maturity only
upon a demand therefor by the Collateral Agent. To effect the redemption of
Bonds of the 2003 Series, the Collateral Agent shall deliver to the Trustee (and
deliver a copy thereof to the Company) a written demand (hereinafter referred to
as a "Redemption Demand") for the redemption of Bonds of the 2003 Series, signed
by an authorized officer and dated the date of its delivery to the Trustee,
stating (i) that an Event of Default (as defined in the Collateral Agreement)
has occurred and is continuing, (ii) that there are not sufficient available
funds held by the Collateral Agent pursuant to the Collateral Agreement to make
all payments required as a result of such Event of Default, (iii) the amount of
funds, in addition to available funds held by the Collateral Agent pursuant to
the Collateral Agreement, required to make such payments, and (iv) the principal
amount of Bonds of the 2003 Series the Collateral
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Agent demands to have redeemed and the redemption date therefor which date shall
be at least thirty-one (31) days after the date of such Redemption Demand
(provided, such principal amount shall not exceed the amount of funds specified
pursuant to the foregoing clause (iii)). The Trustee may conclusively presume
the statements contained in the Redemption Demand to be correct. Redemption of
Bonds of the 2003 Series shall in all cases be at a price equal to the principal
amount of the Bonds to be redeemed together with accrued interest to the
redemption date, and such amount shall become and be due and payable on the
redemption date.
The Company hereby covenants that if a Redemption Demand shall be delivered
to the Trustee, the Company will deposit, on or before the redemption date, with
the Trustee, in accordance with Article V of the Indenture, an amount in cash
sufficient to redeem the principal amount of Bonds of the 2003 Series so called
for redemption.
SECTION 2. Article VIII of Original Indenture Controlling. The Bonds of the
2003 Series shall be redeemable pursuant to Section 8 of Article VIII of the
Original Indenture, from time to time prior to maturity subject to the terms and
conditions of Section 1 of this Article III.
SECTION 3. Article V of Original Indenture Controlling. The provisions of
Article V of the Original Indenture shall be applicable to redemptions of Bonds
of the 2003 Series pursuant to the provisions of Section 1 of this Article III;
provided, however, that with respect to any redemption of Bonds of the 2003
Series, notice of redemption shall be given as provided in such Section 1. The
principal amount of Bonds of the 2003 Series to be redeemed on any partial
redemption shall be an authorized denomination thereof.
SECTION 4. Bonds redeemed may be used to authenticate and deliver
additional Bonds under the Original Indenture. Any Bonds of the 2003 Series
redeemed pursuant to Section 1 of this Article III are hereby expressly
permitted to be used as refundable Bonds for the execution, authentication and
delivery of additional Bonds pursuant to Section 6 of Article III of the
Original Indenture.
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 2003 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-Eighth Supplemental
Indenture, the Twenty-Ninth Supplemental Indenture, the Thirtieth Supplemental
Indenture, the Thirty-First Supplemental Indenture, the Thirty-Second
Supplemental Indenture or this Supplemental Indenture.
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SECTION 2. So long as any Bonds of any series originally issued prior to
January 1, 1997 are outstanding, in the event all or substantially all of the
electric properties shall have been released as an entirety from the lien of the
Original Indenture, the Company will, at any time or from time to time within
six months after the date of such release, retire Bonds outstanding under the
Original Indenture in an aggregate principal amount equal to the fair value of
the electric properties so released pursuant to Section 3 of Article VII of the
Original Indenture, as stated in the engineer's certificate required by Section
3(b) of said Article VII, and the proceeds of the electric properties so
released pursuant to Section 5 of said Article VII. Such retirement of Bonds
shall be effected in either one or both of the following methods:
(a) By the withdrawal pursuant to Section 2 of Article VIII of the
Original Indenture of any moneys deposited with the Trustee pursuant to
Sections 3(d), 4(d) and 5 of Article VII of the Original Indenture upon
such release; or
(b) By causing the Trustee to purchase or redeem bonds, pursuant to
Section 8 of Article VIII of the Original Indenture, out of any moneys
deposited with the Trustee pursuant to Sections 3(d), 4(d) and 5 of Article
VII of the Original Indenture upon such release. The Bonds to be so retired
pursuant to this Section 3 shall include a principal amount of Bonds of
each Series then outstanding in the same ratio to the aggregate principal
amount of all Bonds so retired as the aggregate principal amount of all
Bonds of each Series outstanding immediately prior to such release bears to
the total principal amount of all Bonds then outstanding.
ARTICLE V
AMENDMENTS TO RATIO OF BONDS ISSUABLE TO PROPERTY ADDITIONS
AND OF CERTAIN OTHER RATIOS. AMENDMENT 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).
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(b) Notwithstanding the provisions of Section 3(a) of Article VIII of
the Original Indenture, no moneys received by the Trustee pursuant to
Section 5(a) of Article III of the Original Indenture shall be paid over by
the Trustee in an amount in excess of sixty percent (60%) of the net
bondable value of property additions not subject to an unfunded prior lien,
and for the purposes of Section 3 of Article VII of the Original Indenture,
the amount of cash required to be deposited by the Company pursuant to
Subsection (d) of said Section 3 of Article VII shall not be reduced in an
amount in excess of sixty percent (60%) of the net bondable value of
property additions not subject to an unfunded prior lien.
(c) For the purposes of clauses (c) and (d) of the definition of "net
bondable value of property additions subject to an unfunded prior lien",
contained in Article I of the Original Indenture, and Subsection 7 of
clause (a) of Section 4 of Article III of the Original Indenture, in all
computations made with respect to a period subsequent to April 1, 1949, the
deductions therein referred to shall in each case be ten-sixths (10/6ths)
of the respective amounts mentioned, in lieu of ten-sevenths (10/7ths).
(d) Subsection (a) of Section 14, clauses (1) and (2) of Subsection
(a) of Section 16 of Article IV and clause (1) of Subsection (b) of Section
1 of Article XII of the Original Indenture shall be deemed amended by
substituting the words "sixty percent (60%)" for "seventy percent (70%)"
where they appear in said provisions of the Original Indenture.
(e) The definition of the term "net earnings available for interest,
depreciation and property retirement", as contained in Article I of the
Original Indenture, shall be deemed to mean the net earnings of the Company
ascertained as follows:
1. The total operating revenues of the Company and the net
non-operating revenues of the properties of the Company shall be
ascertained.
2. From the total, determined as provided in Subsection (a),
there shall be deducted all operating expenses, including all
salaries, rentals, insurance, license and franchise fees, expenditures
for repairs and maintenance, taxes (other than income, excess profits
and other taxes measured by or dependent on net taxable income),
depreciation as shown on the books of the Company or an amount equal
to the minimum provision for depreciation as hereinafter defined,
whichever is greater, but excluding all property retirement
appropriations, all interest and sinking fund charges, amortization of
stock and debt discount and expense or premium and further excluding
any charges to income or otherwise for the amortization of plant or
property accounts or of amounts transferred therefrom.
3. The balance remaining after the deduction of the total amount
computed pursuant to Subsection (b) from the total amount computed
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
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property additions and (iii) net earnings from property not subject to
the lien of this Indenture.
4. No income received or accrued by the Company from securities
and no profits or losses of capital assets shall be included in making
the computations aforesaid.
5. In case the Company shall have acquired any acquired plant or
systems or shall have been consolidated or merged with any other
corporation, within or after the particular period for which the
calculation of net earnings of the Company available for interest,
depreciation and property retirement is made, then, in computing the
net earnings of the Company available for interest, depreciation and
property retirement, there may be included, to the extent they may not
have been otherwise included, the net earnings or net losses of such
acquired plant or system or of such other corporation, as the case may
be, for the whole of such period. The net earnings or net losses of
such property additions, or of such other corporation for the period
preceding such acquisition or such consolidation or merger, shall be
ascertained and computed as provided in the foregoing subsections of
this definition as if such acquired plant or system had been owned by
the Company during the whole of such period, or as if such other
corporation had been consolidated or merged with the Company prior to
the first day of such period.
6. In case the Company shall have obtained the release of any
property pursuant to Section 3 of Article VII of the Original
Indenture, of a fair value in excess of Five Hundred Thousand Dollars
($500,000), as shown by the engineer's certificate required by said
Section 3, or shall have obtained the release of any property pursuant
to Section 5 of Article VII of the Original Indenture, the proceeds of
which shall have exceeded Five Hundred Thousand Dollars ($500,000),
within or after the particular period for which the calculation of net
earnings of the Company available for interest, depreciation and
property retirement is made, then, in computing the net earnings of
the Company available for interest, depreciation and property
retirement, the net earnings or net losses of such property for the
whole of such period shall be excluded to the extent practicable on
the basis of actual earnings and expenses of such property or on the
basis of such estimates of the earnings and expenses of such property
as the signers of an officers' certificate filed with the Trustee
pursuant to Section 3(b) of Article III or Section 16 of Article IV of
the Original Indenture shall deem proper.
The term "minimum charge for depreciation" as used herein shall mean
an amount equal to (a) fifteen percent (15%) of the total operating
revenues of the Company after deducting therefrom an amount equal to the
aggregate cost to the Company of electric energy, gas and water purchased
for resale to others and rentals paid for, or other payments made for the
use of, property owned by others and leased to or operated by the Company,
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.
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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.
(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 2003 Series and of any series
initially issued after the initial issuance of Bonds of the 2003 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 2003 Series or of any series initially issued after the initial issuance
of Bonds of the 2003 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
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trust estate (excluding the mortgaged property to be released but including
any mortgaged property to be acquired by the Company with the proceeds of,
or otherwise in connection with, such release) equals or exceeds an amount
equal to 10/7ths of the aggregate principal amount of outstanding Bonds and
prior xxxx xxxxx outstanding at the time of such release, upon receipt by
the Trustee of:
"(a) an officers' certificate dated the date of such release,
requesting such release, describing in reasonable detail the mortgaged
property to be released and stating the reason for such release;
"(b) an engineer's certificate, dated the date of such release,
stating (i) that the signer of such engineer's certificate has
examined such officers' certificate in connection with such release,
(ii) the fair value to the Company, in the opinion of the signer of
such engineer's certificate, of (A) all of the property constituting
the trust estate, and (B) the mortgaged property to be released, in
each case as of a date not more than 90 days prior to the date of such
release, and (iii) that in the opinion of such signer, such release
will not impair the security under this Indenture in contravention of
the provisions hereof;
"(c) in case any bondable property is being acquired by the
Company with the proceeds of, or otherwise in connection with, such
release, an engineer's certificate, dated the date of such release, as
to the fair value to the Company, as of the date not more than 90 days
prior to the date of such release, of the bondable property being so
acquired (and if within six months prior to the date of acquisition by
the Company of the bondable property being so acquired, such bondable
property has been used or operated by a person or persons other than
the Company in a business similar to that in which it has been or is
to be used or operated by the Company, and the fair value to the
Company of such bondable property, as set forth in such certificate,
is not less than $25,000 and not less than 1% of the aggregate
principal amount of Bonds at the time outstanding, such certificate
shall be an independent appraiser's certificate);
"(d) an officer's certificate, dated the date of such release,
stating the aggregate principal amount of outstanding Bonds and prior
xxxx xxxxx outstanding at the time of such release, and stating that
the fair value to the Company of all of the property constituting the
trust estate (excluding the mortgaged property to be released but
including any bondable property to be acquired by the Company with the
proceeds of, or otherwise in connection 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
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will not be, in default in the performance of any of the terms and
covenants of this Indenture;
"(f) an opinion of counsel, dated the date of such release, as to
compliance with conditions precedent.
"SECTION 9. If the Company is unable to obtain, in accordance with any
other Section of this Article VII, the release from the lien of this
Indenture of any property constituting part of the trust estate, unless an
event of default shall have happened and be continuing, or shall happen as
a result of the making or granting of an application to release mortgaged
property permitted by this Section 9, the Trustee shall release from the
lien of this Indenture any mortgaged property if the fair value to the
Company thereof, as shown by the engineer's certificate filed pursuant to
Section 9(b), is less than 1/2 of 1% of the aggregate principal amount of
outstanding Bonds and prior xxxx xxxxx outstanding at the time of such
release, provided that the aggregate fair value to the Company of all
mortgaged property released pursuant to this Section 9, as shown by all
engineer's certificates filed pursuant to Section 9(b) in any period of 12
consecutive calendar months which includes the date of such engineer's
certificate, shall not exceed 1% of the aggregate principal amount of the
outstanding Bonds and prior xxxx xxxxx outstanding at the time of such
release, upon receipt by the Trustee of:
"(a) an officers' certificate, dated the date of such release,
requesting such release, describing in reasonable detail the mortgaged
property to be released and stating the reason for such release;
"(b) an engineer's certificate, dated the date of such release,
stating (A) that the signer of such engineer's certificate has
examined such officers' certificate in connection with such release,
(B) the fair value to the Company, in the opinion of the signer of
such engineer's certificate, of such mortgaged property to be released
as of a date not more than 90 days prior to the date of such release,
and (C) that in the opinion of such signer such release will not
impair the security under this Indenture in contravention of the
provisions hereof;
"(c) an officers' certificate, dated the date of such release,
stating the aggregate principal amount of outstanding Bonds and prior
xxxx xxxxx outstanding at the time of such release, that 1/2 of 1% of
such aggregate principal amount does not exceed the fair value to the
Company of the mortgaged 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.
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
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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: /s/ Xxxxx X. Xxxxxx
-----------------------
ATTEST:
By: /s/ Xxxxx X. Xxxxx
----------------------------
Executed, sealed and delivered by
WESTERN RESOURCES, INC.
in the presence of:
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
By: /s/ Xxxxx Xxxxxxx
---------------------------
XXXXXX TRUST AND SAVINGS BANK,
As Trustee
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------
ATTEST:
By: /s/ X X Xxxxxxx
---------------------------
Executed, sealed and delivered by
XXXXXX TRUST AND SAVINGS BANK
in the presence of:
By: /s/
---------------------------
By: /s/
---------------------------
S-2
STATE OF KANSAS )
: ss.:
COUNTY OF SHAWNEE )
BE IT REMEMBERED, that on this 28th day of June, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came Xxxxx X. Xxxxxx and Xxxxx X. Xxxxx, of Western Resources, Inc.,
a corporation duly organized, incorporated and existing under the laws of the
State of Kansas, who are personally known to me to be such officers, and who are
personally known to me to be the same persons who executed as such officers the
within instrument of writing, and such persons duly acknowledged the execution
of the same to be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
/s/ Xxxxx Xxxxxxx
-------------------------
Notary Public
My Commission Expires
November 18, 0000
X-0
XXXXX XX XXXXXXXX )
: ss.:
COUNTY OF XXXX )
BE IT REMEMBERED, that on this 23rd day of June, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came X. Xxxxxxxxx and X.X. Xxxxxxx, 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.
/s/ Xxxxx Xxxxx Xxxxxx
--------------------------
Notary Public
My Commission Expires
S-4
STATE OF KANSAS )
: ss.:
COUNTY OF SHAWNEE )
BE IT REMEMBERED, that on this 28th day of June, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came Xxxxx X. Xxxxxx and Xxxxx X. Xxxxx, of Western Resources, Inc.,
a corporation duly organized, incorporated and existing under the laws of the
State of Kansas, who are personally known to me to be such officers, being by me
respectively duly sworn, did each say that the said Xxxxx X. Xxxxxx is Vice
President and that the said Xxxxx X. Xxxxx 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.
/s/ Xxxxx Xxxxxxx
--------------------------
Notary Public
My Commission Expires
November 18, 2000
APPENDIX A
to
THIRTY-FOURTH SUPPLEMENTAL INDENTURE
Dated as of June 28, 2000
Western Resources, Inc.
to
Xxxxxx Trust and Savings Bank
------------
DESCRIPTION OF PROPERTIES
LOCATED IN THE STATE OF KANSAS
FIRST
PARCELS OF REAL ESTATE
XXXXX COUNTY
A tract of land 400 feet by 430 feet located in the South Half of the Northwest
Quarter (S/2 NW/4) of Section 5, Township 3 South, Range 17 East, Xxxxx County,
Kansas, more particularly described as follows:
Beginning at the Southwest Corner of said South Half of the Northwest
Quarter (S/2 NW/4); thence North on the West line of said Section a
distance of 430 feet; thence East 90(degree) from the line last
described a distance of 400 feet; thence South 90(degree) from the last
line described a distance of 430 feet to the South line of said South
Half of the Northwest Quarter (S/2 NW/4); thence West on said South
line to the point of beginning, containing 4.0 acres more or less.
XXXXXXX COUNTY
The South 800 feet of the East 800 feet of the East Half of the Southeast
Quarter (E/2 SE/4), Section Nineteen (19), Township Twelve South (12S), Range
Nineteen (19), East of the 6th P.M., containing fifteen (15) acres, more or
less.
XXXXXXXXX COUNTY
-2-
Beginning at a point Sixty (60) feet North and Thirty (30) feet West of the
Southeast corner of Section 33, Township 17 South, Range 00 Xxxx xx xxx 0xx
X.X., xx Xxxxxxxxx Xxxxxx, Xxxxxx; thence North adjacent to the County Road
Right of Way and parallel to the East line of said Section 33, a distance of One
Hundred (100) feet; thence West parallel to the South line of said Section 33, a
distance of Sixty (60) feet; thence South parallel to the East line of said
Section 33, a distance of One Hundred (100) feet to a point on the North Right
of Way line of Highway 4; thence East along the North Right of Way line of
Highway 4 to the Point of Beginning.
LABETTE COUNTY
Lots 15, 16, 17, 19 and 21, in Block One (1), South Side Addition to the City of
Xxxxxxx, Labette County, Kansas.
NEMAHA COUNTY
A tract of land 500 feet by 550 feet located in the Northeast Quarter (NE/4) of
Xxxxxxx 0, Xxxxxxxx 0 Xxxxx, Xxxxx 13 East of 6th P.M., Nemaha County, Kansas,
said tract more particularly described as follows:
Beginning at the Northwest Corner of said Northeast Quarter (NE/4),
thence East on the North line of said Northeast Quarter a distance of
500 feet, thence South parallel to the West line of said Northeast
Quarter a distance of 550 feet, thence West parallel to said North line
a distance of 500 feet to the West line of said Northeast Quarter,
thence North on said West line to the point of beginning.
