________________________________________________________________________________
UTILICORP UNITED INC.
AND
UMB BANK, N.A.,
as Trustee
________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 1, 1995
TO
INDENTURE
Dated as of June 1, 1995
________________
8 7/8% Junior Subordinated Deferrable Interest Debentures, Series A, Due 2025
______________________________________________________________________________
FIRST SUPPLEMENTAL INDENTURE, dated as of the 1st day of June, 1995 (the
"First Supplemental Indenture"), between UTILICORP UNITED INC., a corporation
duly organized and existing under the laws of the State of Delaware (hereinafter
sometimes referred to as the "Company"), and UMB Bank, N.A., a national banking
association organized and existing under the laws of the United States, as
trustee (hereinafter sometimes referred to as the "Trustee") under the Indenture
dated as of June 1, 1995 between the Company and the Trustee (the "Indenture";
all terms used and not defined herein are used as defined in the Indenture).
WHEREAS, the Company executed and delivered the Indenture to the Trustee
to provide for the future issuance of securities and the Company desires to
issue its junior subordinated debentures (the "Debentures"), said Debentures to
be issued from time to time in series as might be determined by the Company
under the Indenture, in an unlimited aggregate principal amount which may be
authenticated and delivered thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Debentures to be known as
its 8 7/8% Junior Subordinated Deferrable Interest Debentures, Series A, Due
2025 (said series being hereinafter referred to as the "Series A Debentures"),
the form and substance of such Series A Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this First
Supplemental Indenture; and
WHEREAS, UtiliCorp Capital L.P., a Delaware limited partnership
("UtiliCorp Capital"), has offered to the public its 8 7/8% Cumulative Monthly
Income Preferred Securities, Series A (the "Series A Preferred Securities"),
representing limited partner interests in the Company and proposes to invest the
proceeds from such offering in the Series A Debentures; and
WHEREAS, upon the occurrence of a Special Event (as defined in the Amended
and Restated Agreement of Limited Partnership of UtiliCorp Capital L.P., dated
June 12, 1995, as amended or supplemented (the "Limited Partnership
Agreement")), the Company may dissolve UtiliCorp Capital and cause to be
distributed to the holders of the Series A Preferred Securities, on a pro rata
basis, Series A Debentures (a "Dissolution Event"); and
WHEREAS, the Company desires and has requested the Trustee to join with it
in the execution and delivery of this First Supplemental Indenture, and all
requirements necessary to make this First Supplemental Indenture a valid
instrument, in accordance with its terms, and to make the Series A Debentures,
when executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed and fulfilled, and the
execution and delivery hereof have been in all respects duly authorized:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Series A Debentures by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the Series A
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series A Debentures
SECTION 1.01. There shall be and is hereby authorized a series of
Debentures designated the "8 7/8% Junior Subordinated Deferrable Interest
Debentures, Series A, Due 2025", unlimited in aggregate principal amount. The
Series A Debentures will initially be issued in the aggregate principal amount
of $100,000,000. The Series A Debentures shall mature and the principal shall
be due and payable together with all accrued and unpaid interest thereon,
including Additional Interest (as hereinafter defined) on June 12, 2025, and
shall be issued in the form of registered Series A Debentures without coupons.
SECTION 1.02. Except as provided in Section 1.03 herein, the Series A
Debentures shall be issued in certificated form. Principal and interest on the
Series A Debentures issued in certificated form will be payable, the transfer of
such Series A Debentures will be registrable and such Series A Debentures will
be exchangeable for the Series A Debentures bearing identical terms and
provisions at the office or agency of the Company in the Borough of Manhattan,
The City and State of New York; provided, however, that payment of interest may
be made at the option of the Company by check mailed first class, postage
prepaid to the registered Holder at such address as shall appear in the
Debenture Register. Notwithstanding the foregoing, so long as the Holder of the
Series A Debentures is UtiliCorp Capital, the payment of the principal of and
interest on (including Additional Interest, if any) the Series A Debentures will
be made at such place and to such account as may be designated by UtiliCorp
Capital.
SECTION 1.03. In connection with a Dissolution Event, the Series A
Debentures in certificated form may be presented to the Trustee by UtiliCorp
Capital in exchange for a Global Debenture in an aggregate principal amount
equal to all Outstanding Series A Debentures, to be registered in the name of
the Depository, or its nominee, and delivered by the Trustee to the Depository
for crediting to the accounts of its participants pursuant to the instructions
of UtiliCorp Capital. The Company upon any such presentation shall execute a
Global Debenture in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery as hereinabove and in the Indenture
provided. Payments on the Series A Debentures issued as a Global Debenture will
be made to the Depository. The Depository for the Series A Debentures shall be
The Depository Trust Company, New York, New York.
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SECTION 1.04. Each Series A Debenture will bear interest at the rate of 8
7/8% per annum from the original date of issuance until the principal thereof
becomes due and payable, and on any overdue principal 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, payable monthly in arrears
on the last day of each calendar month of each year (each, an "Interest Payment
Date", commencing on June 30, 1995), to the person in whose name such Series A
Debenture or any predecessor Series A Debenture is registered in the Debenture
Register, at the close of business on the Regular Record Date for such interest
installment, which shall be the close of business on the Business Day next
preceding that Interest Payment Date. If pursuant to the provisions of Section
305 of the Indenture the Series A Junior Subordinated Debentures are no longer
represented by a Global Debenture, the Company may select a Regular Record Date
for such interest installment which shall be any date not later than fifteen
days preceding an Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such Regular Record Date, and may be paid to the person in
whose name the Series A Debenture (or one or more Predecessor Debentures) is
registered at the close of business on a Special Record Date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of the Series A Debentures 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 Series A Debentures may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture
hereinafter referred to.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable on the Series A Debentures is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
If at any time when UtiliCorp Capital is the holder of the Series A
Debentures, UtiliCorp Capital shall be required to pay any interest on dividends
in arrears in respect of the Series A Preferred Securities pursuant to the terms
thereof, then the Company will pay as interest (the "Additional Interest") an
amount equal to such interest on dividends in arrears. In addition, if UtiliCorp
Capital would be required to pay any taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed by the United
States, or any other taxing authority, then, in any such case, the Company shall
also pay as Additional Interest such amounts as shall be required so that the
net amount received and retained by UtiliCorp Capital after paying any such
taxes, duties, assessments or governmental charges will not be less than the
amounts UtiliCorp Capital would have received had no such taxes, duties,
assessments or governmental charges been imposed.
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ARTICLE TWO
Mandatory Prepayment and Optional Redemption
of the Series A Debentures
SECTION 2.01. If UtiliCorp Capital redeems the Series A Preferred
Securities in accordance with the terms thereof, the Series A Debentures will
become due and payable in a principal amount equal to the aggregate stated
liquidation preference of the Series A Preferred Securities so redeemed,
together with all accrued and unpaid interest thereon, including Additional
Interest, if any (the "Mandatory Prepayment Price"). Any payment pursuant to
this provision shall be made in immediately available same day funds prior to
12:00 noon, New York time, on the date of such redemption or at such earlier
time as the Company and UtiliCorp Capital shall agree.
SECTION 2.02. At such time as there are no Series A Preferred Securities
remaining outstanding and subject to the terms of Articles Eleven and Twelve of
the Indenture, the Company shall have the right to redeem the Series A
Debentures, in whole or in part, from time to time, on or after June 12, 2000,
at a redemption price equal to 100% of the principal amount to be redeemed plus
any accrued and unpaid interest thereon, including any Additional Interest, if
any, to the date of such redemption (the "Optional Redemption Price"). Any
redemption pursuant to this paragraph will be made upon not less than 30 nor
more than 60 days' notice, at the Optional Redemption Price. If the Series A
Debentures are only partially redeemed pursuant to this Section, the Debentures
will be redeemed pro rata or by lot or by any other method utilized by the
Trustee; provided, that if at the time of redemption, the Series A Debentures
are registered as a Global Debenture, the Depository shall determine the
principal amount of such Series A Debentures held by each Series A
Debentureholder to be redeemed.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. The Company shall have the right, at any time during the
term of the Series A Debentures, from time to time to extend the interest
payment period, of such Series A Debentures for up to 60 consecutive months (the
"Extended Interest Payment Period"), at the end of which period the Company
shall pay all interest accrued and unpaid thereon (together with interest
thereon at the rate specified for the Series A Debentures to the extent
permitted by applicable law); provided that, during such Extended Interest
Payment Period the Company shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock or make any guarantee payments with respect to the foregoing.
Prior to the termination of any such Extended Interest Payment Period, the
Company may further extend such period, provided that such period together with
all such further extensions thereof shall not exceed 60 consecutive months. Upon
the termination of any Extended Interest Payment Period and upon the payment of
all accrued and unpaid interest and
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any Additional Interest then due, the Company may select a new Extended Interest
Payment Period, subject to the foregoing requirements. No interest during an
Extended Interest Payment Period, except at the end thereof, shall be due and
payable.
SECTION 3.02. (a) If UtiliCorp Capital is the sole holder of the Series
A Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give both UtiliCorp Capital and the Trustee written
notice of its selection of such Extended Interest Payment Period one Business
Day prior to the earlier of (i) the next succeeding date on which dividends on
the Series A Preferred Securities are payable or (ii) the date UtiliCorp Capital
is required to give notice of the Record Date or the date such dividends are
payable to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Series A Preferred Securities, but in any
event not less than one Business Day prior to such Record Date. The Company
shall cause UtiliCorp Capital to give notice of the Company's selection of such
Extended Interest Payment Period to the holders of the Series A Preferred
Securities.
(b) If UtiliCorp Capital is not the sole Holder of the Series A
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the Holders of the Series A Debentures and
the Trustee written notice of its selection of such Extended Interest
Payment Period 10 Business Days prior to the earlier of (i) the next
succeeding Interest Payment Date or (ii) the date the Company is required
to give notice of the record or payment date of such interest payment to
the New York Stock Exchange or other applicable self- regulatory
organization or to Holders of the Series A Debentures, but in any event
not less than two Business Days prior to such Record Date.
(c) The month in which any notice is given pursuant to paragraphs
(a) or (b) of this Section shall constitute one of the 60 months which
comprise the maximum Extended Interest Payment Period.
ARTICLE FOUR
Right of Set-Off
SECTION 4.01. Notwithstanding anything to the contrary in the Indenture
or herein, the Company shall have the right to set-off any payment it is
otherwise required to make thereunder or hereunder with and to the extent the
Company has heretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee, dated as of June 12, 1995 executed by the
Company and furnished to UtiliCorp Capital for the benefit of the holders of the
Series A Preferred Securities.
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ARTICLE FIVE
Covenant to List on Exchange
SECTION 5.01. If the Series A Debentures are to be issued as a Global
Debenture in connection with the distribution of the Series A Debentures to the
holders of the Series A Preferred Securities upon a Dissolution Event, the
Company will use its best efforts to list such Debentures on the New York Stock
Exchange or on such other exchange as the Series A Preferred Securities are then
listed and traded on the same part of any such exchange.
ARTICLE SIX
Form of Series A Debenture
SECTION 6.01. The Series A Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the following
forms:
(FORM OF FACE OF DEBENTURE)
[If the Debenture is to be a Global Debenture, insert - This Debenture is
a Global Debenture within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depository or a nominee of a Depository. This
Debenture is exchangeable for Debentures registered in the name of a person
other than the Depository or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx) to the issuer or its agent
for registration of transfer, exchange or payment, and any Debenture issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment hereon
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.]
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No. 1 $100,000,000
UTILICORP UNITED INC.
8 7/8% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE, SERIES A, DUE 2025
UTILICORP UNITED INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein referred to as the "Company", which term
includes any successor corporation under the Indenture), for value received,
hereby promises to pay to UtiliCorp Capital L.P. ("UtiliCorp Capital") or
registered assigns, the principal sum of One Hundred Million Dollars
($100,000,000) on June 12, 2025, and to pay interest on said principal sum from
June 12, 1995 or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided for,
monthly in arrears on the last day of each calendar month of each year
commencing June 30, 1995 at the rate of 8 7/8% per annum plus Additional
Interest, if any, until the principal hereof shall have become due and payable,
and on any overdue principal and premium, if any, 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. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on this Debenture is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the person in whose name
this Debenture (or one or more Predecessor Debentures, as defined in said
Indenture) is registered at the close of business on the regular record date for
such interest installment, [which shall be the close of business on the Business
Day next preceding such Interest Payment Date]. [If pursuant to the provisions
of Section 305 of the Indenture the Series A Junior Subordinated Debentures are
no longer represented by a Global Debenture--which shall be the close of
business on the ___ Business Day next 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 Holders on such Regular Record
Date, and may be paid to the person in whose name this Debenture (or one or more
Predecessor Debentures) is registered in the Debenture Register at the close of
business on a Special Record Date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the registered Holders
of this series of Debentures 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 Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture hereinafter referred to. The principal of (and
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premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City and State of New York, in any coin or currency of the United
States of America which at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed first class, postage prepaid,
to the registered Holder at such address as shall appear in the Debenture
Register. Notwithstanding the foregoing, so long as the Holder of this Debenture
is UtiliCorp Capital, the payment of the principal of (and premium, if any) and
interest (including Additional Interest, if any) in this Debenture will be made
at such place and to such account as may be designated by UtiliCorp Capital.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, hereby waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon said
provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
Unless the Certificate of Authentication hereon has been executed by the
Trustee referred to on the reverse side hereof, this Debenture shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
The provisions of this Debenture are contained 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.
IN WITNESS WHEREOF, the Company has caused this Instrument to be executed
as of June 1, 1995
UTILICORP UNITED INC.
By________________________
Name:
Attest: Title:
__________________________
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Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in the
within-mentioned Indenture.
UMB BANK, N.A. or_____________________________
as Trustee as Authentication Agent
By__________________________ By___________________________
Authorized Signatory Authorized Signatory
Dated: June 12, 1995
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of the
Company (herein sometimes referred to as the "Debentures"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of June 1, 1995 duly executed and delivered between the
Company and UMB Bank, N.A., a national banking association duly organized and
existing under the laws of the United States, as Trustee (herein referred to as
the "Trustee"), as supplemented by the First Supplemental Indenture dated as of
June 1, 1995 between the Company and the Trustee (said Indenture as so
supplemented being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the
Debentures. By the terms of the Indenture, the Debentures are issuable in series
which may vary as to amount, date of maturity, rate of interest and in other
respects as in the Indenture provided. This series of Debentures is limited in
aggregate principal amount as specified in said First Supplemental Indenture.
If UtiliCorp Capital redeems its 8 7/8% Cumulative Monthly Income Preferred
Securities, Series A (the "Series A Preferred Securities") in accordance with
the terms thereof, this Debenture will become due and payable in a principal
amount equal to the aggregate stated liquidation preference of the Series A
Preferred Securities so redeemed, together with any interest accrued thereon,
including Additional Interest (the "Mandatory Prepayment Price"). Any Mandatory
Prepayment Price shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or at such earlier time as the Company and UtiliCorp Capital
shall agree. At such time as there are no Series A Preferred Securities
remaining outstanding and subject to the
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terms of Articles Eleven and Twelve of the Indenture, the Company shall have the
right to redeem this Debenture at the option of the Company, without premium or
penalty, in whole or in part at any time on or after June 12, 2000 (an "Optional
Redemption"), at a redemption price equal to 100% of the principal amount plus
any accrued but unpaid interest, including any Additional Interest, if any, to
the date of such redemption (the "Optional Redemption Price"). Any redemption
pursuant to this paragraph will be made upon not less than 30 nor more than 60
days' notice, at the Optional Redemption Price. If the Debentures are only
partially redeemed by the Company pursuant to an Optional Redemption, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
by the Trustee; provided that if at the time of redemption, the Debentures are
registered as a Global Debenture, the Depositary shall determine the principal
amount of such Debentures held by each Holder to be redeemed.
In the event of redemption of this Debenture in part only, a new Debenture or
Debentures of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have occurred
and be continuing, the principal of all of the Debentures may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Debenture upon compliance by the Company with certain
conditions set forth therein.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any Debentures of any series, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof, without the consent of the
Holder of each Debenture so affected or (ii) reduce the aforesaid percentage of
Debentures, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Debenture
then outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Debentures of all series at the time outstanding affected thereby, on behalf of
the Holders of the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Debentures of such series. Any such consent or waiver by
the registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this
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Debenture and of any Debenture issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture 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 on this Debenture at the time and place and at the rate and in the
manner herein prescribed.
The Company shall have the right at any time during the term of the
Debentures, from time to time to extend the interest payment period of such
Debentures to up to 60 consecutive months (the "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is enforceable under
applicable law); provided that, during such Extended Interest Payment Period the
Company shall not declare or pay any dividend on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of its capital stock or make
any guarantee payments with respect to the foregoing. Prior to the termination
of any such Extended Interest Payment Period, the Company may further extend
such Extended Interest Payment Period, provided that such Period together with
all such further extensions thereof shall not exceed 60 consecutive months. At
the termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest and any additional amounts then due,
the Company may select a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered Holder hereof on the
Debenture Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Company in the Borough
of Manhattan, The City and State of New York accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company or the Trustee
duly executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture, the
Company, the Trustee, any paying agent and any Debenture Registrar may deem and
treat the registered Holder hereof as recorded in the Debenture Register as the
absolute owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Debenture Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon and
for all other purposes, and neither the Company nor the Trustee nor any paying
agent nor any Debenture Registrar shall be affected by any notice to the
contrary.
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No recourse shall be had for the payment of the principal of or the interest
on this Debenture, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any 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 being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
[The Debentures of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof.] [This Global
Debenture is exchangeable for Debentures in definitive form only under certain
limited circumstances set forth in the Indenture. Debentures of this series so
issued are issuable only in registered form without coupons in denominations of
$25 and any integral multiple thereof.] As provided in the Indenture and
subject to certain limitations [herein and] therein set forth, Debentures of
this series [so issued] are exchangeable for a like aggregate principal amount
of Debentures of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
All terms used in this Debenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ARTICLE SEVEN
Original Issue of Series A Debentures
SECTION 7.01. Series A Debentures may, upon execution of this First
Supplemental Indenture, or from time to time thereafter, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written order
of the Company, signed by its Chairman, its President, or any Vice President and
its Treasurer or an Assistant Treasurer, without any further action by the
Company.
ARTICLE EIGHT
Sundry Provisions
SECTION 8.01. Except as otherwise expressly provided in this First
Supplemental Indenture or in the form of Series A Debenture or otherwise clearly
required by the context hereof or thereof, all terms used herein or in said form
of Series A Debenture that are defined in the Indenture shall have the several
meanings respectively assigned to them thereby.
SECTION 8.02. The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
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SECTION 8.03. The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this First Supplemental Indenture.
SECTION 8.04. This First Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
SECTION 8.05 If and to the extent that any provision of this First
Supplemental Indenture limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, as amended,
such imposed duties shall control.
SECTION 8.06 The Article and Section headings are for convenience only and
shall not affect the construction hereof.
SECTION 8.07 All covenants and agreements in this First Supplemental
Indenture by Utilicorp shall bind its successors and assigns, whether so
expressed or not.
SECTION 8.08 In case any provision in this First Supplemental Indenture or
the Series A Debentures 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 8.09 Nothing in this First Supplemental Indenture or the Series A
Debentures, 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 First Supplemental Indenture.
SECTION 8.10 This First Supplemental Indenture and the Series A Debentures
shall be governed by and construed in accordance with the laws of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
UTILICORP UNITED INC.
By /s/ Xxxx X. Xxxx
----------------------
Vice President
Attest:
/s/ Xxxxx Xxxxxx
--------------------------------
Assistant Treasurer
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UMB BANK, N.A.
as Trustee
By /s/ Xxxxx Xxxxxxxx
--------------------------
Attest:
/s/ R. Wm. Xxxxxxxx
---------------------------------
Assistant Secretary
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STATE OF Missouri )
COUNTY OF Xxxxxxx ) June 7, 1995
On the 7 day June, in the year one thousand nine hundred ninety-five,
before me personally came Xxxx X. Xxxx to me known, who, being by me duly
sworn, did depose and say that he resides at 0000 X. 000xx Xx. Xxxxxxx, XX;
that he is Vice President of UTILICORP UNITED INC., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said
instrument is such corporation seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
/s/ Xxxxx X. Xxxx
--------------------------
NOTARY PUBLIC
My Commission Expires
STATE OF Missouri )
COUNTY OF Xxxxxxx ) June 7, 1995
On the 7 day of June, in the year one thousand nine hundred ninety-five,
before me personally came Xxxxx Xxxxxxxx to me known, who, being by me duly
sworn, did depose and say that (s)he resides at 00000 Xxxxxx Xxxxxx Xxxx, XX,
of UMB Bank N.B., one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation and that
he signed his name thereto by like authority.
/s/ Xxxxxxxx XxXxxx
---------------------------
NOTARY PUBLIC
My Commission Expires
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