Execution Copy
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UTILICORP UNITED INC.
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
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7% Senior Notes due July 15, 2004
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ELEVENTH SUPPLEMENTAL INDENTURE
Dated as of July 20, 1999
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ELEVENTH SUPPLEMENTAL INDENTURE, dated as of July 20, 1999 (herein
called the "Eleventh Supplemental Indenture"), between UTILICORP UNITED INC.,
a corporation duly organized and existing under the laws of the State of
Delaware (hereinafter called the "Company"), party of the first part, and THE
FIRST NATIONAL BANK OF CHICAGO, a national banking association duly organized
and existing under the laws of the United States, as Trustee under the
Original Indenture referred to below (hereinafter called the "Trustee"),
party of the second part.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of November 1, 1990 (hereinafter called the
"Original Indenture"), to provide for the issuance from time to time of
certain of its unsecured senior notes (hereinafter called the "Securities"),
the form and terms of which are to be established as set forth in Sections
201 and 301 of the Original Indenture; and
WHEREAS, Section 901 of the Original Indenture provides, among
other things, that the Company and the Trustee may enter into indentures
supplemental to the Original Indenture for, among other things, the purpose
of establishing the form or terms of the Securities of any series as
permitted in Sections 201 and 301 of the Original Indenture; and
WHEREAS, the Company desires to create a series of the Securities
in an aggregate principal amount of $250,000,000 to be designated the "7%
Senior Notes due 2004" (the "Senior Notes"), and all action on the part of
the Company necessary to authorize the issuance of the Senior Notes under the
Original Indenture and this Eleventh Supplemental Indenture has been duly
taken; and
WHEREAS, all acts and things necessary to make the Senior Notes
when executed by the Company and completed, authenticated and delivered by
the Trustee as in the Original Indenture and this Eleventh Supplemental
Indenture provided, the valid and binding obligations of the Company and to
constitute these presents a valid and binding supplemental indenture and
agreement according to its terms, have been done and performed; and
WHEREAS, Section 901 of the Original Indenture provides, among
other things, that the Company and the Trustee may enter into indentures
supplemental to the Original Indenture to, among other things, add to the
covenants of the Company for the benefit of the Holders of all or any series
of Securities; and
WHEREAS, the Company desires to limit the issuance of Mortgage
Bonds under its General Mortgage (as hereinafter defined) as set forth in
Section 204 of this Eleventh Supplemental Indenture for the benefit of the
Holders of the Senior Notes;
NOW, THEREFORE, THIS ELEVENTH SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises, the Company covenants and
agrees with the Trustee, for the equal benefit of holders of the Senior
Notes, as follows:
ARTICLE ONE
DEFINITIONS
The use of the terms and expressions herein is in accordance with
the definitions, uses and constructions contained in the Original Indenture
and the form of Senior Note attached hereto as Exhibit A.
ARTICLE TWO
TERMS AND ISSUANCE OF THE SENIOR NOTES
Section 201. ISSUE OF SENIOR NOTES. A series of Securities which
shall be designated the "7% Senior Notes due 2004" shall be executed,
authenticated and delivered in accordance with the provisions of, and shall
in all respects be subject to, the terms, conditions and covenants of the
Original Indenture and this Eleventh Supplemental Indenture (including the
form of Senior Note set forth as Exhibit A hereto). The aggregate principal
amount of Senior Notes of the series created hereby which may be
authenticated and delivered under the Original Indenture shall not, except as
permitted by the provisions of the Original Indenture, exceed $250,000,000.
Section 202. FORM OF SENIOR NOTES; INCORPORATION OF TERMS. The
form of the Senior Notes shall be substantially in the form of Exhibit A
attached hereto. The terms of such Senior Notes are herein incorporated by
reference and are part of this Eleventh Supplemental Indenture.
Section 203. PLACE OF PAYMENT. The Place of Payment will be
initially the corporate trust offices of the Trustee which, at the date
hereof, are located at The First National Bank of Chicago, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-0126 and The First National Bank
of Chicago, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Section 204. LIMITATION ON ISSUANCE OF MORTGAGE BONDS. The
Company will not issue any Mortgage Bonds under its General Mortgage
Indenture and Deed of Trust, dated September 15, 1988, between the Company
and Commerce Bank of Kansas City, N.A., as Trustee (the "General Mortgage"),
without making effective provision, and the Company covenants that in any
such case effective provisions will be made, whereby the Senior Notes shall
be directly secured by the General Mortgage equally and ratably with any and
all other obligations and indebtedness thereby secured.
ARTICLE THREE
MISCELLANEOUS
Section 301. EXECUTION OF SUPPLEMENTAL INDENTURE. This Eleventh
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Eleventh Supplemental Indenture forms a part thereof.
Section 302. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Eleventh Supplemental Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
Section 303. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 304. SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Eleventh Supplemental Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 305. SEPARABILITY CLAUSE. In case any provision in this
Eleventh Supplemental Indenture or in the Senior Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 306. BENEFITS OF ELEVENTH SUPPLEMENTAL INDENTURE. Nothing
in this Eleventh Supplemental Indenture or in the Senior Notes, express or
implied, shall give to any person, other than the parties hereto and their
successors hereunder and the holders, any benefit or any legal or equitable
right, remedy or claim under this Ninth Supplemental Indenture.
Section 307. GOVERNING LAW. This Eleventh Supplemental Indenture
and each Senior Note shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by and
construed in accordance with the laws of said State.
Section 308. EXECUTION AND COUNTERPARTS. This Eleventh
Supplemental Indenture may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Eleventh
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
UTILICORP UNITED INC.
[Seal] By:
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President,
Finance
Attest:
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Title: Asst. Treasurer
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
[Seal] By:
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Name:
Title:
Attest:
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Title: Trust Officer
STATE OF __________)
) ss.:
COUNTY OF _________)
On the ____ day of ________, 199_, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________________ of UtiliCorp United Inc., the
corporation described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
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Notary Public,
State of
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STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the ____ day of ________, 199_, before me personally came
________________, to me known, who, being by me duly sworn, did depose and
say that he is ________________ of The First National Bank of Chicago, the
national banking association described in and which executed the foregoing
instrument; that he knows the seal of said association; that the seal affixed
to said instrument is such association seal; that it was so affixed by
authority of the Board of Directors of said association, and that he signed
his name thereto by like authority.
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Notary Public,
State of
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EXHIBIT A
[FORM OF FACE OF SENIOR NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR
OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
REGISTERED REGISTERED
UTILICORP UNITED INC.
7% SENIOR NOTE DUE 2004
No. 918005 AU3 $
UTILICORP UNITED INC., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ____________________, or
registered assigns, the principal sum of
__________________________________________ DOLLARS on July 15, 2004, and to
pay interest thereon from July 20, 1999, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually on January 15 and July 15 in each year, commencing January 15,
2000, at the rate per annum provided in the title hereof, until the principal
hereof is paid or made available for payment, and, subject to the terms of
the Indenture, at the rate per annum provided in the title hereof on any
overdue principal and premium, if any, and (to the extent that the payment of
such interest shall be legally enforceable) on any overdue installment of
interest. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to
the Holder in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest payment, which shall be the January 1 or July 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date, and
may either be paid to the Holder in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, in which event notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner
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not inconsistent with the requirements of any securities exchange on which
the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and premium, if any, and interest on
this Security will be made at the office or agency of the Trustee maintained
for that purpose in the Borough of Manhattan, The City of New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. The Company may pay
principal by check payable in such money or by wire transfer to a dollar
account maintained by the holder (if the holder of the Security holds an
aggregate principal amount of Securities in excess of $5,000,000). The
Company may pay interest by mailing a dollar check to a holder's registered
address or, upon application by the holder hereof to the Registrar, not later
than the applicable record date, by wire transfer to a dollar account
maintained by the holder (if the holder of the Security holds an aggregate
principal amount of Securities in excess of $5,000,000).
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof, or an Authenticating Agent,
by manual signature of one of its authorized officers, this Security shall
not be entitled to any benefit under the Indenture or be valid or obligatory
for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
UTILICORP UNITED INC.
Dated: By:
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Title:
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Attest:
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[Seal] Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Senior
Notes of the series designated
herein referred to in the
within-mentioned Indenture
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
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Authorized Officer
[FORM OF REVERSE OF SENIOR NOTE]
UTILICORP UNITED INC.
7% SENIOR NOTE DUE 2004
This Senior Note is one of a duly authorized series of securities
of the Company (herein called the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of November 1, 1990, as
amended and supplemented (as amended and supplemented, the "Indenture"),
between the Company and The First National Bank of Chicago, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, limited in aggregate
principal amount to $250,000,000.
This Security is not subject to any sinking fund, nor may this
Security be redeemed at the option of the Company prior to the Maturity Date.
Interest payments for this Security will be computed and paid on
the basis of a 360-day year of twelve 30-day months. If an Interest Payment
Date falls on a day that is not a Business Day, such Interest Payment Date
will be the following day that is a Business Day.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 66 2/3% in principal amount of the
Securities at the time Outstanding of all series to be affected (voting as a
class). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the
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registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities registered in
the names of Persons other than the Depositary with respect to such series or
its nominee only as provided in this paragraph. This Security shall be so
exchangeable if (x) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such series or at any time ceases to
be a clearing agency registered as such under the Securities Exchange Act of
1934, (y) the Company executes and delivers to the Trustee an Officers'
Certificate providing that this Security shall be so exchangeable or (z)
there shall have occurred and be continuing an Event of Default with respect
to the Securities of such series. Securities so issued in exchange for this
Security shall be of the same series, having the same interest rate, if any,
and maturity and having the same terms as this Security, in authorized
denominations and in the aggregate having the same principal amount as this
Security and registered in such names as the Depositary for such Global
Security shall direct.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of a Security of the series of which this
Security is a part is registrable in the Security Register, upon surrender of
this Security for registration of transfer at the office or agency of the
Company in any place where the principal of and premium, if any, and
interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of the series of which this Security is a part are
issuable only in registered form without coupons in denominations of $1,000
and in integral multiples thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be
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overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.