EXHIBIT 1
10/26/94
Kansas City Power & Light Company
Medium-Term Notes Due From
9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
November __, 1994
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Smith Barney Inc.
c/o Merrill Lynch & Co.
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Dear Sirs:
Kansas City Power & Light Company, a Missouri
corporation (the "Company"), confirms its agreement with Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
and Smith Barney Inc. (the "Agents") with respect to the issue
and sale by the Company of its Medium-Term Notes described herein
(the "Notes"). The Notes are to be issued pursuant to an
indenture (the "Indenture") dated as of November 1, 1994 between
the Company and The Bank of New York, as trustee (the "Note
Trustee").
Payment of the principal of and any premium or interest
on the Notes is to be secured by the pledge by the Company to the
Note Trustee of a Mortgage Bond, Medium-Term Series E (the
"Pledged Bond") to be issued under the General Mortgage Indenture
and Deed of Trust ("Mortgage Indenture") dated as of December 1,
1986 between the Company and United Missouri Bank of Kansas City,
N.A., as Trustee ("Mortgage Trustee"), as heretofore supplemented
and as the same may from time to time be amended or supplemented,
including the Tenth Supplemental Indenture dated as of November
1, 1994 (the "Supplemental Mortgage Indenture") pursuant to which
the series of Bonds consisting of the Pledged Bond is created.
The term "Mortgage," as hereinafter used, means such Mortgage
dated as of December 1, 1986 as so supplemented and as the same
may from time to time be amended and supplemented.
As of the date hereof, the Company has authorized the
issuance and sale of up to U.S. $125,000,000 aggregate principal
amount of Notes through the Agents pursuant to the terms of this
Agreement. It is understood, however, that the Company may from
time to time authorize the issuance of additional Notes and that
such additional Notes may be sold through or to the Agents
pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by
the Company directly to purchasers, in which case the Agents may
act as agents of the Company in soliciting Note purchases, and
(as may from time to time be agreed to by the Company and the
Agents) to the Agents as principal for resale to purchasers.
The Company has filed with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3 (No.
________) for the registration of the Notes under the Securities
Act of 1933 (the "1933 Act") and the offering thereof from time
to time in accordance with Rule 415 of the rules and regulations
of the SEC under the 1933 Act (the "1933 Act Regulations"). Such
registration statement has been declared effective by the SEC and
the Indenture has been qualified under the Trust Indenture Act of
1939 (the "1939 Act"). Such registration statement (and any
further registration statements which may be filed by the Company
for the purpose of registering additional Notes and in connection
with which this Agreement is included or incorporated by
reference as an exhibit) and the prospectus constituting a part
thereof, and any prospectus supplements relating to the Notes,
including all documents incorporated therein by reference, as
from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934 (the
"1934 Act") or the 1933 Act or otherwise, are referred to herein
as the "Registration Statement" and the "Prospectus,"
respectively, except that if any revised prospectus shall be
provided to the Agents by the Company for use in connection with
the offering of the Notes which is not required to be filed by
the Company pursuant to Rule 424(b) of the 1933 Act Regulations,
the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Agents for such
use.
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and
conditions stated herein and subject to the reservation by the
Company of the right to sell Notes directly on its own behalf,
the Company hereby appoints the Agents as the exclusive agents
for the purpose of soliciting purchases of the Notes from the
Company by others and agrees that, except as otherwise
contemplated herein, whenever the Company determines to sell
Notes directly to an Agent as principal for resale to others, it
will enter into a Terms Agreement (hereafter defined) relating to
such sale in accordance with the provisions of Section 3(b)
hereof. The Agents are not authorized to appoint sub-agents or
to engage the services of any other broker or dealer in
connection with the offer or sale of the Notes. The Company
agrees that, during the period the Agents are acting as the
Company's agents hereunder, the Company will not appoint other
agents to act on its behalf, or to assist it, in the placement of
the Notes, provided, however, that the Company may appoint
additional agents who have executed this Agreement or an
agreement substantially similar to this Agreement to solicit
offers to purchase Notes, which appointment shall not become
effective until notice thereof is given to the Agents. Such
notice shall be in writing or by telephone or telegraph confirmed
in writing and may be given only after consultation with the
Agents.
(b) Reasonable Efforts Solicitations; Right to Reject
Offers. Upon receipt of instructions from the Company, the
Agents will use their reasonable efforts to solicit purchases of
such principal amount of the Notes as the Company and the Agents
shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve
the solicitation of purchases of Notes in excess of the amount
which shall be authorized by the Company from time to time or in
excess of the principal amount of Notes registered pursuant to
the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or of otherwise
monitoring the availability of Notes for sale under the
Registration Statement. The Agents will communicate to the
Company, orally or in writing, each offer to purchase Notes,
other than those offers rejected by the Agents. The Agents shall
have the right, in their discretion reasonably exercised, to
reject any proposed purchase of Notes, as a whole or in part, and
any such rejection shall not be deemed a breach of the agreement
of the Agents contained herein. The Company may accept or reject
any proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agents; Purchases as Principal.
In soliciting purchases of the Notes on behalf of the Company,
the Agents shall act solely as agents for the Company and not as
principal. The Agents shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by the Agents and
accepted by the Company. The Agents shall not have any liability
to the Company in the event any such purchase is not consummated
for any reason. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but an Agent may
agree from time to time to purchase Notes as principal. Any such
purchase of Notes by an Agent as principal shall be made pursuant
to a Terms Agreement in accordance with Section 3(b) hereof.
(d) Reliance. The Company and the Agents agree that
any Notes the placement of which the Agents arrange shall be
placed by the Agents, and any Notes purchased by an Agent shall
be purchased, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on
the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the Agents
as of the date hereof, as of the date of each acceptance by the
Company of an offer for the purchase of Notes (whether through
the Agents as agents or to an Agent as principal), as of the date
of each delivery of Notes (whether through the Agents as agents
or to an Agent as principal) (the date of each such delivery to
an Agent as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration
Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a
change in the interest rates of Notes or similar changes) or
there is filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of Notes under the
Registration Statement, unless the Agents shall otherwise
specify) (each of the times referenced above being referred to
herein as a "Representation Date") as follows:
(i) Due Incorporation and Qualification. The
Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the state of its incorporation with corporate
power and authority to own, lease and operate its
properties and to conduct its business as described in
the Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such
qualification is required, whether by reason of the
ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be
in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the
Company.
(ii) Subsidiaries. The Company has no
significant subsidiaries, as "significant subsidiary"
is defined in Rule 405 of Regulation C of the 1933 Act
Regulations.
(iii) Registration Statement and Prospectus. At
the time the Registration Statement became effective,
the Registration Statement complied, and as of the
applicable Representation Date will comply, in all
material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the
rules and regulations of the SEC promulgated
thereunder. The Registration Statement, at the time it
became effective, did not, and at each time thereafter
at which any amendment to the Registration Statement
becomes effective or any Annual Report on Form 10-K is
filed by the Company with the SEC and as of each
Representation Date, will not, contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof does
not, and as of each Representation Date will not,
contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided,
however, that the representations and warranties in
this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with
information furnished to the Company in writing by the
Agents expressly for use in the Registration Statement
or Prospectus.
(iv) Incorporated Documents. The documents
incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the SEC,
complied or when so filed will comply, as the case may
be, in all material respects with the requirements of
the 1934 Act and the rules and regulations promulgated
thereunder (the "1934 Act Regulations"), and, when read
together and with the other information in the
Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary in order to make the statements therein, in
the light of the circumstances under which they were or
are made, not misleading.
(v) Accountants. The accountants who issued
their reports on the financial statements included or
incorporated by reference in the Prospectus are
independent public accountants within the meaning of
the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial
statements and any supporting schedules of the Company
included or incorporated by reference in the
Registration Statement and the Prospectus present
fairly the financial position of the Company as of the
dates indicated and the results of its operations for
the periods specified; and, except as stated therein,
said financial statements have been prepared in
conformity with generally accepted accounting
principles in the United States (except for certain
footnote disclosures required to be included in
financial statements prepared in accordance with
generally accepted accounting principles) applied on a
consistent basis; and any supporting schedules included
in the Registration Statement present fairly the
information required to be stated therein.
(vii) Authorization and Validity of this
Agreement, the Indenture and the Notes. This Agreement
has been duly authorized and, upon execution and
delivery by the Agents, will be a valid and binding
agreement of the Company; the Indenture has been duly
authorized and, upon execution and delivery by the Note
Trustee, will be a valid and binding obligation of the
Company enforceable in accordance with its terms; the
Notes have been duly and validly authorized for
issuance, offer and sale pursuant to this Agreement
and, when issued, authenticated and delivered pursuant
to the provisions of this Agreement and the Indenture
against payment of the consideration therefor specified
in the Prospectus or pursuant to any Terms Agreement,
the Notes will constitute valid and legally binding
obligations of the Company enforceable in accordance in
with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by
general equity principles; the Notes and the Indenture
will be substantially in the forms heretofore delivered
to the Agents and conform in all material respect to
all statements relating thereto contained in the
Prospectus; and the Notes will be entitled to the
benefits provided by the Indenture.
(viii) The Pledged Bond. The Pledged Bond has been
duly and validly authorized, issued, authenticated, pledged
and delivered to the Note Trustee in accordance with the
Indenture and the Supplemental Mortgage Indenture; and the
Pledged Bond constitutes the legal, valid and binding
obligation of the Company and conforms to the description
thereof in the Registration Statement and the Prospectus;
the payments of the principal of and any premium or interest
on the Notes are secured by the Pledged Bond.
(ix) Material Changes or Material Transactions.
Since the respective dates as of which information is
given in the Registration Statement and the Prospectus,
except as may otherwise be stated therein or
contemplated thereby, (a) there has been no material
adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not
arising in the ordinary course of business and
(b) there have been no material transactions entered
into by the Company other than those in the ordinary
course of business.
(x) No Defaults. The Company is not in violation
of its Restated Articles of Consolidation, as amended,
or by-laws, or in default in the performance or
observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it
or its properties may be bound; the execution and
delivery of this Agreement, the Indenture and the
Supplemental Mortgage Indenture and the consummation of
the transactions contemplated herein, therein and
pursuant to any applicable Terms Agreement have been
duly authorized by all necessary corporate action and
will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company is a party or by
which it may be bound or to which any of the property
or assets of the Company is subject, nor will such
action result in any violation of the provisions of the
Restated Articles of Consolidation, as amended, or by-
laws, of the Company or any law, administrative
regulation or administrative or court order or decree.
(xi) Regulatory Approvals. The Company has made all
necessary filings and obtained all necessary consents or
approvals from the Missouri Public Service Commission and
the Federal Energy Regulatory Commission (the "FERC") in
connection with the issuance and sale of the Notes and the
issuance, pledge and delivery of the Pledged Bond, or will
have done so by the time the Notes shall be issued and sold,
and no consent, approval, authorization, order or decree of
any other court or governmental agency or body is required
for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be
required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities ("Blue Sky") laws.
(xii) Legal Proceedings; Contracts. Except as
may be set forth in the Registration Statement, there
is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company which
might, in the opinion of the Company, result in any
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or
business prospects of the Company, or might materially
and adversely affect its properties or assets or might
materially and adversely affect the consummation of
this Agreement or any Terms Agreement; and there are no
contracts or documents of the Company which are
required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xiii) Franchises. The Company holds valid and
subsisting franchises, licenses and permits authorizing it
to carry on the respective utility businesses in which it is
engaged in the territories from which substantially all of
its gross operating revenue is derived.
(xiv) Mortgaged Property. The Company has good and
sufficient title to all property described or referred to in
the Mortgage and purported to be conveyed thereby, subject
only to the lien of the Mortgage and "Permissible
Encumbrances" as therein defined.
(b) Additional Certifications. Any certificate signed
by any director or officer of the Company and delivered to the
Agents or to counsel for the Agents in connection with an
offering of Notes or the sale of Notes to an Agent as principal
shall be deemed a representation and warranty by the Company to
the Agents as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. Solicitations as Agents; Purchases as
Principal.
(a) Solicitations as Agents. On the basis of the
representations and warranties herein contained, but subject to
the terms and conditions herein set forth, the Agents agree, as
agents of the Company, to use their reasonable efforts to solicit
offers to purchase the Notes upon the terms and conditions set
forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion,
to suspend solicitation of purchases of the Notes through the
Agents, as agents, commencing at any time for any period of time
or permanently. Upon receipt of instructions from the Company,
the Agents will forthwith suspend solicitation of purchases from
the Company until such time as the Company has advised the Agents
that such solicitation may be resumed.
The Company agrees to pay the Agents a commission, in
the form of a discount, equal to the applicable percentage of the
principal amount of each Note sold by the Company as a result of
a solicitation made by the Agents as set forth in Schedule A
hereto.
The purchase price, interest rate, maturity date and
other terms of the Notes shall be agreed upon by the Company and
the Agents and set forth in a pricing supplement to the
Prospectus to be prepared following each acceptance by the
Company of an offer for the purchase of Notes. Except as may be
otherwise provided in such supplement to the Prospectus, the
Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. All
Notes sold through the Agents as agents will be sold at 100% of
their principal amount unless otherwise agreed to by the Company
and the Agents.
(b) Purchases as Principal. Each sale of Notes to an
Agent as principal shall be made in accordance with the terms
contained herein and (unless the Company and such Agent shall
otherwise agree) pursuant to a separate agreement which will
provide for the sale of such Notes to, and the purchase and
reoffering thereof by, such Agent. Each such separate agreement
(which may be an oral agreement) between an Agent and the Company
is herein referred to as a "Terms Agreement". Unless the context
otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any applicable Terms
Agreement between the Company and an Agent. Each such Terms
Agreement, whether oral or in writing, shall be with respect to
such information (as applicable) as is specified in Exhibit A
hereto. An Agent's commitment to purchase Notes as principal
pursuant to any Terms Agreement or otherwise shall be deemed to
have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall
specify the principal amount of Notes to be purchased by an Agent
pursuant thereto, the price to be paid to the Company for such
Notes (which, if not so specified in a Terms Agreement, shall be
at a discount equivalent to the applicable commission set forth
in Schedule A hereto), the time and place of delivery of and
payment for such Notes, any provisions relating to rights of, and
default by purchasers acting together with such Agent in the
reoffering of the Notes, and such other provisions (including
further terms of the Notes) as may be mutually agreed upon. The
Agents may reallow any portion of the commission payable pursuant
hereto to dealers or purchasers in connection with the offer and
sale of any Notes. An Agent may utilize a selling or dealer
group in connection with the resale of the Notes purchased. Such
Terms Agreement shall also specify the requirements for the
officer's certificate, opinions of counsel and comfort letter
pursuant to Sections 7(b), 7(c) and 7(d) hereof.
(c) Administrative Procedures. Administrative
procedures with respect to the sale of Notes shall be agreed upon
from time to time by the Agents and the Company (the
"Procedures"). The Agents and the Company agree to perform the
respective duties and obligations specifically provided to be
performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify
the Agents immediately (i) of the effectiveness of any amendment
to the Registration Statement, (ii) of the transmittal to the SEC
for filing of any supplement to the Prospectus or any document to
be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus, (iii) of the receipt of any comments
from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) of the issuance
by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for
that purpose. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Notice of Certain Filings. The Company will
furnish to the Agents copies of any additional registration
statement with respect to the registration of additional Notes,
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than an amendment or
supplement providing solely for a change in the interest rates of
Notes), whether by the filing of documents pursuant to the 1934
Act, the 1933 Act or otherwise.
(c) Copies of the Registration Statement and the
Prospectus. The Company will deliver to the Agents as many
signed and conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the
Agents may reasonably request. The Company will furnish to the
Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as
the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company
will prepare, with respect to any Notes to be sold through or to
the Agents pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by the Agents
and will file such Pricing Supplement pursuant to Rule 424(b)(3)
under the 1933 Act not later than the close of business of the
SEC on the fifth business day after the date on which such
Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes.
Except as otherwise provided in subsection (l) of this Section,
if at any time during the term of this Agreement any event shall
occur or condition exist as a result of which it is necessary, in
the reasonable opinion of counsel for the Agents or counsel for
the Company, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary in
order to make the statements therein not misleading in the light
of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, to amend or supplement
the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, immediate notice shall be given, and confirmed in
writing, to the Agents to cease the solicitation of offers to
purchase the Notes in the Agents' capacity as agents and to cease
sales of any Notes the Agents may then own as principal pursuant
to any Terms Agreement, and the Company will promptly prepare and
file with the SEC such amendment or supplement, whether by filing
documents pursuant to the 1934 Act, the 1933 Act or otherwise, as
may be necessary to correct such untrue statement or omission or
to make the Registration Statement and Prospectus comply with
such requirements.
(f) Prospectus Revisions -- Periodic Financial
Information. Except as otherwise provided in subsection (1) of
this Section, on or prior to the date on which there shall be
released to the general public interim financial statement
information related to the Company with respect to each of the
first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the
Company shall furnish such information to the Agents, confirmed
in writing, and shall include such financial information and
corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and
explanations as shall be necessary in order to make the
statements therein not misleading, in each Pricing Supplement
issued after such date and prior to the date such information is
included in a document filed by the Company with the SEC pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(g) Prospectus Revisions -- Audited Financial
Information. Except as otherwise provided in subsection (1) of
this Section, on or prior to the date on which there shall be
released to the general public financial information included in
or derived from the audited financial statements of the Company
for the preceding fiscal year, the Company shall either (i) cause
the Registration Statement and the Prospectus to be amended,
whether by the filing of documents pursuant to the 1934 Act, the
1933 Act or otherwise, to include or incorporate by reference, or
(ii) include in each Pricing Supplement issued after such date
and prior to the date the Registration Statement and Prospectus
are so amended, such audited financial statements and the report
or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such
financial statements or as shall be required by the 1933 Act or
the 1933 Act Regulations.
(h) Earnings Statements. The Company will make
generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the 1933 Act) covering each
twelve month period beginning, in each case, not later than the
first day of the Company's fiscal quarter next following the
"effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will
endeavor, in cooperation with the Agents, to qualify the Notes
for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as the
Agents may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the
Notes; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify
as a foreign corporation in any jurisdiction in which it is not
so qualified. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the
Notes have been qualified as above provided. The Company will
promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filing. The Company, during the period
when the Prospectus is required to be delivered under the 1933
Act, will file promptly all documents required to be filed with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
1934 Act.
(k) Stand-Off Agreement. If required pursuant to the
terms of a Terms Agreement, between the date of such Terms
Agreement and the Settlement Date with respect to such Terms
Agreement, the Company will not, without the Agents' prior
consent, offer or sell, or enter into any agreement to sell, any
debt securities of the Company (other than the Notes that are to
be sold pursuant to such Terms Agreement, bank borrowings and
commercial paper in the ordinary course of business).
(l) Suspension of Certain Obligations. The Company
shall not be required to comply with the provisions of
subsections (e), (f) or (g) of this Section during any period
from the time (i) the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agents pursuant to a
request from the Company and (ii) the Agents shall not then hold
any Notes as principal purchased pursuant to a Terms Agreement,
to the time the Company shall determine that solicitation of
purchases of the Notes should be resumed or shall subsequently
enter into a new Terms Agreement with the Agents.
(m) Condition to Agency Transactions. The Company
will offer to any person who has agreed to purchase Notes as the
result of an offer to purchase solicited by the Agents the right
to refuse to purchase and pay for such Notes if, on the related
settlement date fixed pursuant to the Administrative Procedures,
(i) there has been, since the date on which such person agreed to
purchase the Notes (the "Trade Date"), or since the respective
dates as of which information is given in the Registration
Statement, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the
ordinary course of business, or (ii) there shall have occurred
any outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which is such as
to make it, in the judgment of such person, impracticable or
inadvisable to purchase the Notes, or (iii) trading in any
securities of the Company has been suspended by the SEC or a
national securities exchange, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange shall
have been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have
been required, by either of said exchanges or by order of the SEC
or any other governmental authority, or if a banking moratorium
shall have been declared by either Federal or New York
authorities, or (iv) the rating assigned by any nationally
recognized securities rating agency to any debt securities of the
Company as of the Trade Date shall have been lowered since that
date or if any such rating agency shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company.
SECTION 5. Conditions; Obligations.
The obligations of the Agents to solicit offers to
purchase the Notes as agents of the Company, the obligations of
any purchasers of the Notes sold through the Agents as agents,
and any obligation of an Agent to purchase Notes pursuant to a
Terms Agreement or otherwise will be subject to the accuracy of
the representations and warranties on the part of the Company
herein and to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the
provisions hereof, to the performance and observance by the
Company of all its covenants and agreements herein contained and
to the following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents
shall have received the following legal opinions, dated as of the
date hereof and in form and substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of
Jeanie Sell Latz, Vice President-Law of the Company, or Mr. Mark
Sholander, General Counsel of the Company, to the effect that:
(i) the Company is a validly organized and existing
corporation in good standing under the laws of the State of
Missouri and is duly qualified as a foreign corporation to
do business in the State of Kansas;
(ii) the Company is a public utility duly authorized
by its Restated Articles of Consolidation, as amended, under
which it was organized to carry on the business in which it
is engaged as set forth in the Prospectus; and the Company
has the legal right to function and operate as an electric
utility in the States of Missouri and Kansas;
(iii) the Mortgage is in due and proper form, has been
duly and validly authorized by all necessary corporate
action, has been duly and validly executed and delivered,
and is a valid instrument legally binding on the Company;
(iv) this Agreement, the Terms Agreements, if any, the
Mortgage, the Supplemental Mortgage Indenture and the
Indenture have each been duly authorized, executed and
delivered by the Company and each constitutes a legal, valid
and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws affecting
the enforcement of creditors' rights generally; and this
Agreement, the Terms Agreements, if any, the Mortgage, the
Supplemental Mortgage Indenture and the Indenture conform as
to legal matters with the statements concerning them made in
the Registration Statement and the Prospectus, and such
statements accurately set forth the matters respecting this
Agreement, the Terms Agreements, if any, the Mortgage, the
Supplemental Mortgage Indenture and the Indenture required
to be set forth in the Registration Statement and the
Prospectus;
(v) The Notes and the Pledged Bond are in due and
proper form; the issue and sale of the Notes by the Company
in accordance with the terms of this Agreement have been
duly and validly authorized by the necessary corporate
action; the Notes, when duly executed (which execution may
include facsimile signatures of officers of the Company)
authenticated and delivered to the purchasers thereof
against payment of the agreed consideration therefor, will
constitute legal, valid and binding obligations of the
Company in accordance with their terms, secured as to the
payment of the principal thereof and any premium or interest
thereon by the Pledged Bond, except as enforcement thereof
may be limited by bankruptcy, insolvency or other laws
affecting enforcement of creditors' rights generally; the
Pledged Bond has been duly and validly authorized, executed,
authenticated, pledged and delivered to the Note Trustee
pursuant to the Indenture, the Mortgage and the Mortgage
Supplemental Indenture, and constitutes the legal, valid and
binding obligation of the Company in accordance with its
terms, secured by the lien of and entitled to the benefits
provided by the Mortgage, except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws affecting
enforcement of creditors' rights generally; and the Notes
and the Pledged Bond conform as to legal matters with the
statements concerning them made in the Registration
Statement and Prospectus, and such statements accurately set
forth the matters respecting the Notes and the Pledged Bond
required to be set forth in the Registration Statement and
Prospectus;
(vi) except as to property acquired subsequent to the
execution and delivery of the Supplemental Mortgage
Indenture creating the Pledged Bond, the Company has good
and sufficient title to all the property described or
referred to in and purported to be conveyed by the Mortgage
(except such property as may have been disposed of and
released from the lien thereof in accordance with the terms
thereof), subject only to the lien of the Mortgage, to
exceptions and reservations specifically set forth therein,
to "Permissible Encumbrances" as therein defined, and to
matters specified in the Prospectus under "Description of
Bonds -- Security and Priority"; the description in the
Mortgage of said property is adequate to constitute the
Mortgage Indenture a lien thereon; the Mortgage, subject
only to exceptions and reservations specifically set forth
therein, to "Permissible Encumbrances" and to matters
specified in the Prospectus, as aforesaid, constitutes a
valid, direct mortgage lien on said property, which includes
substantially all of the fixed property of the Company, and
on the franchises and permits of the Company pertaining to
the operation of said property; all fixed property and all
franchises and permits pertaining to the operation of its
property acquired by the Company after the execution and
delivery of the Supplemental Mortgage Indenture creating the
Pledged Bond will, upon such acquisition, become subject to
the lien of the Mortgage to the extent provided therein,
subject, however, to "Permissible Encumbrances", to liens,
if any, existing or placed thereon at the time of the
acquisition thereof by the Company and to any rights or
equities of others attaching under applicable local law in
the absence of notice of the lien of the Mortgage by filing,
recordation or otherwise; and the Mortgage is enforceable in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency or other laws affecting
the enforcement of creditors' rights generally;
(vii) the Mortgage has been duly filed for recordation
and otherwise filed, indexed or cross-indexed in such manner
and in such places as is required by law in order to give
constructive notice of, establish, preserve and protect the
lien of the Mortgage on all properties of the Company of
every kind described in and conveyed by the Mortgage, and
all taxes payable to any state or subdivision thereof in
connection with the execution, delivery or recordation of
the Mortgage or the execution, authentication, issuance and
delivery of the Pledged Bond and outstanding Bonds have been
paid;
(viii) the orders of the Missouri Public Service
Commission and the FERC authorizing the issuance, pledge and
delivery of the Pledged Bond and the issuance and sale of
the Notes (through June 30, 1996 with respect to Notes
maturing less than one year from the date of their issue)
have been duly entered and are still in force and effect,
and no further approval, authorization, consent, certificate
or order of any state or federal commission or regulatory
authority is necessary with respect to the execution and
delivery of the Indenture and the Mortgage or the issue,
pledge and delivery of the Pledged Bond or the issue and
sale of the Notes as contemplated in the Agreement (Ms. Latz
or Mr. Sholander may in such opinion state any maximum
interest rate on the Notes established by the Missouri
Public Service Commission or FERC);
(ix) the Company holds valid and subsisting
franchises, licenses and permits authorizing it to carry on
the respective utility businesses in which it is engaged in
the territory from which substantially all of its gross
operating revenue is derived;
(x) the statements contained in the Registration
Statement and Prospectus which are expressed therein to have
been made on the authority of legal counsel to the Company
have been reviewed by him and, as to matters of law and
legal conclusions, are correct;
(xi) the Registration Statement is effective under the
Act, and no proceedings for a stop order are pending or, to
the best of [Ms. Latz's] [Mr. Sholander's] knowledge,
threatened under Section 8(d) of the Securities Act;
(xii) (A) the Registration Statement and the
Prospectus comply as to form in all material respects with
the 1933 Act and the 1939 Act and with the 1933 Act
Regulations and (B) the documents incorporated by reference
in the Prospectus, as of the time they were filed with the
SEC, complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations,
it being understood that [Ms. Latz] [Mr. Sholander] need
express no opinion or belief as to the financial statements
and other financial data included in the Registration
Statement, Prospectus or such documents;
(xiii) the Mortgage Indenture and the Indenture have
each been qualified under the Trust Indenture Act;
(xiv) To the best of [Ms. Latz's] [Mr.
Sholander's] knowledge, there are no legal or
governmental proceedings pending or threatened which
are required to be disclosed in the Prospectus, other
than those disclosed therein, and all pending legal or
governmental proceedings to which the Company is a
party or of which any of its property is the subject
which are not described in the Registration Statement,
including ordinary routine litigation incidental to the
business of the Company, are, considered in the
aggregate, not material to the financial condition of
the Company.
(xv) To the best of [Ms. Latz's] [Mr.
Sholander's] knowledge, the Company is not in violation
of its Restated Articles of Consolidation, as amended,
or in default in the performance or observance of any
material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note or lease to which it is a party or by
which it or any of its properties may be bound. The
execution and delivery of this Agreement, the
Indenture, or the Supplemental Mortgage Indenture, or
the consummation by the Company of the transactions
contemplated by this Agreement, and the Pledged Bond
and the Notes and the incurrence of the obligations
therein contemplated, will not conflict with or
constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument known to
such counsel and to which the Company is a party or by
which it may be bound or to which any of the property
or assets of the Company is subject (except for the
lien of the Mortgage), or any law, administrative
regulation or administrative or court decree known to
such counsel to be applicable to the Company of any
court or governmental agency, authority or body or any
arbitrator having jurisdiction over the Company; nor
will such action result in any violation of the
provisions of the Restated Articles of Consolidation,
as amended, or by-laws of the Company.
(xvi) To the best of [Ms. Latz's] [Mr.
Sholander's] knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases
or other instruments or documents required to be
described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those
described or referred to therein or filed or
incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct,
and no default exists in the due performance or
observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or
other instruments described, referred to, filed or
incorporated by reference.
(2) Opinion of Counsel to the Agents. The letter of
Sidley & Austin, counsel for the Agents, in which such counsel
shall set forth their opinions with respect to the issuance and
sale of the Notes, the Pledged Bond, the Registration Statement,
the Prospectus and other related matters as the Agents may
reasonably require, and the Company shall have furnished to such
counsel such documents as they may request for the purpose of
enabling them to pass upon such matters.
(3) Additional Statements. In giving their opinions
required by subsection (a)(1) and (a)(2) of this Section, Ms.
Latz or Mr. Sholander and Sidley & Austin shall each additionally
state that nothing has come to their attention that would lead
them to believe that the Registration Statement, at the time it
became effective, and if an amendment to the Registration
Statement or an Annual Report on Form 10-K has been filed by the
Company with the SEC subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became
effective or at the time of the most recent such filing, and at
the date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 3(b)
hereof) at the date of such Terms Agreement and at the Settlement
Date with respect thereto, as the case may be, contains or
contained an untrue statement of a material fact or omits or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading
or that the Prospectus, as amended or supplemented at the date
hereof, or (if such opinion is being delivered in connection with
a Terms Agreement pursuant to Section 5(b) hereof) at the date of
such Terms Agreement and at the Settlement Date with respect
thereto, as the case may be, contains an untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Officer's Certificate. At the date hereof the
Agents shall have received a certificate of the President or Vice
President and the chief financial or chief accounting officer of
the Company, substantially in the form of Appendix I hereto and
dated as of the date hereof, to the effect that (i) since the
respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of
any applicable Terms Agreement, there has not been any material
adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of
business, (ii) the other representations and warranties of the
Company contained in Section 2 hereof are true and correct with
the same force and effect as though expressly made at and as of
the date of such certificate, (iii) the Company has performed or
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such
certificate, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents
shall have received a letter from Coopers & Lybrand L.L.P., dated
as of the date hereof and in form and substance satisfactory to
the Agents, to the effect that:
(i) They are independent public accountants with
respect to the Company within the meaning of the 1933
Act and the 1933 Act Regulations.
(ii) In their opinion, the financial statements
and supporting schedule(s) of the Company audited by
them and included or incorporated by reference in the
Registration Statement comply as to form in all
material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on
Form S-3 and the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures,
not constituting an audit, including a reading of the
latest available interim financial statements of the
Company, a reading of the minute books of the Company
since the end of the most recent fiscal year with
respect to which an audit report has been issued,
inquiries of and discussions with certain officials of
the Company responsible for financial and accounting
matters with respect to the unaudited consolidated
financial statements included in the Registration
Statement and Prospectus and the latest available
interim unaudited financial statements of the Company,
and such other inquiries and procedures as may be
specified in such letter, and on the basis of such
inquiries and procedures nothing came to their
attention that caused them to believe that: (A) the
unaudited consolidated financial statements of the
Company included in the Registration Statement and
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations or were not
fairly presented in conformity with generally accepted
accounting principles in the United States applied on a
basis substantially consistent with that of the audited
financial statements included therein, or (B) at a
specified date not more than five days prior to the
date of such letter, there was any change in the
capital stock or any increase in long-term debt of the
Company or any decrease in the common shareholders'
equity of the Company other than for the declaration of
regular quarterly dividends, in each case as compared
with the amounts shown on the most recent balance sheet
of the Company included in the Registration Statement
and Prospectus or, during the period from the date of
such balance sheet to a specified date not more than
five days prior to the date of such letter, there were
any decreases, as compared with the corresponding
period in the preceding year, in revenues or net income
of the Company, except in each such case as set forth
in or contemplated by the Registration Statement and
Prospectus or except for such exceptions (e.g.
inability to determine such decreases because of
insufficient accounting information available after the
date of such most recent balance sheet) enumerated in
such letter as shall have been agreed to by the Agents
and the Company.
(iv) In addition to the examination referred to
in their report included or incorporated by reference
in the Registration Statement and the Prospectus, and
the limited procedures referred to in clause (iii)
above, they have carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information
which are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Agents, and have found such amounts,
percentages and financial information to be in
agreement with the relevant accounting, financial and
other records of the Company identified in such letter.
(d) Other Documents. On the date hereof and on each
Settlement Date with respect to any applicable Terms Agreement,
counsel to the Agents shall have been furnished with such
documents and opinions as such counsel may reasonably require for
the purpose of enabling such counsel to pass upon the issuance
and sale of Notes as herein contemplated and related proceedings,
or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by
the Company in connection with the issuance and sale of Notes as
herein contemplated shall be satisfactory in form and substance
to the Agents and to counsel to the Agents.
If any condition specified in subdivisions (a) through
(d) of this Section 5 shall not have been fulfilled when and as
required to be fulfilled, this Agreement (or, at the option of
the Agents, any applicable Terms Agreement) may be terminated by
the Agents by notice to the Company at any time and any such
termination shall be without liability of any party to any other
party, except that the covenant regarding provision of an
earnings statement set forth in Section 4(g) hereof, the
provisions concerning payment of expenses under Section 10
hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery of
Section 11 hereof and the provisions set forth under "Parties" of
Section 14 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold
through the Agents.
Delivery of Notes sold through the Agents as agents
shall be made by the Company to the Agents for the account of any
purchaser only against payment therefor in immediately available
funds. In the event that a purchaser shall fail either to accept
delivery of or to make payment for a Note on the date fixed for
settlement, the Agents shall promptly notify the Company and
deliver the Note to the Company, and, if the Agents have
theretofore paid the Company for such Note, the Company will
promptly return such funds to the Agents. If such failure
occurred for any reason other than default by the Agents in the
performance of their obligations hereunder, the Company will
reimburse the Agents on an equitable basis for their loss of the
use of the funds for the period such funds were credited to the
Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties.
Each acceptance by it of an offer for the purchase of Notes, and
each delivery of Notes to an Agent pursuant to a Terms Agreement,
shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any
certificate theretofore delivered to the Agents pursuant hereto
are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to
the purchaser or the agent of such purchaser, or to the Agents,
of the Note or Notes relating to such acceptance or sale, as the
case may be, as though made at and as of each such time (and it
is understood that such representations and warranties shall
relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time
that the Registration Statement or the Prospectus shall be
amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates of Notes or
similar changes), or there is filed with the SEC any document
incorporated by reference into the Prospectus or (if required
pursuant to the terms of a Terms Agreement) the Company sells
Notes to an Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished to the Agents forthwith a
certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form
satisfactory to the Agents to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof
which was last furnished to the Agents are true and correct at
the time of such amendment, supplement, filing or sale, as the
case may be, as though made at and as of such time (except that
such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in said Section 5(b),
modified as necessary to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of
delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time
that the Registration Statement or the Prospectus shall be
amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates of the Notes
or similar changes or solely for the inclusion of additional
financial information), or there is filed with the SEC any
document incorporated by reference into the Prospectus or (if
required pursuant to the terms of a Terms Agreement) the Company
sells Notes to an Agent pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to the
Agents and to counsel to the Agents a written opinion of Ms. Latz
or Mr. Sholander, Counsel to the Company, or other counsel
satisfactory to the Agents dated the date of filing with the SEC
of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form
and substance satisfactory to the Agents, of the same tenor as
the opinion referred to in Section 5(a)(1) hereof, but modified,
as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of
such opinion; or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agents
with a letter substantially in the form of Appendix II hereto to
the effect that the Agents may rely on such last opinion to the
same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of
such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time
that the Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial
information or there is filed with the SEC any document
incorporated by reference into the Prospectus which contains
additional financial information or, (if required pursuant to the
terms of a Terms Agreement) the Company sells Notes to an Agent
pursuant to a Terms Agreement, the Company shall cause Coopers
and Lybrand LLP forthwith to furnish the Agents with a letter,
dated the date of effectiveness of such amendment, supplement or
document with the SEC, or the date of such sale, as the case may
be, in form satisfactory to the Agents, of the same tenor as the
portions of the letter referred to in clauses (i) and (ii) of
Section 5(c) hereof but modified to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date
of such letter, and of the same general tenor as the portions of
the letter referred to in clauses (iii) and (iv) of said
Section 5(c) with such changes as may be necessary to reflect
changes in the financial statements and other information derived
from the accounting records of the Company; provided, however,
that if the Registration Statement or the Prospectus is amended
or supplemented solely to include financial information as of and
for a fiscal quarter, Coopers & Lybrand L.L.P. may limit the
scope of such letter to the unaudited financial statements
included in such amendment or supplement unless any other
information included therein of an accounting, financial or
statistical nature is of such a nature that, in the reasonable
judgment of the Agents, such letter should cover such other
information.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees
to indemnify and hold harmless each Agent and each person, if
any, who controls such Agent within the meaning of Section 15 of
the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged
omission therefrom of a material fact necessary to make
the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not
misleading, unless such untrue statement or omission or
such alleged untrue statement or omission was made in
reliance upon and in conformity with written
information furnished to the Company by such Agent
expressly for use in the Registration Statement or the
Prospectus;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of
any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred, (including the fees and disbursements of
counsel chosen by such Agent) reasonably incurred in
investigating, preparing or defending against any
litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above.
(b) Indemnification of Company. Each Agent agrees to
indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Agent
expressly for use in the Registration statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) General. Each indemnified party shall give prompt
notice to each indemnifying party of any action commenced against
it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one counsel (in addition to
any local counsel) for all indemnified parties in connection with
any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 9. Contribution.
In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in
Section 8 hereof is for any reason held to be unavailable to or
insufficient to hold harmless the indemnified parties although
applicable in accordance with its terms, the Company and each
Agent shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and such Agent, as
incurred, in such proportions that such Agent is responsible for
that portion represented by the percentage that the total
commissions and underwriting discounts received by such Agent to
the date of such liability bears to the total sales price from
the sale of Notes sold to or through such Agent to the date of
such liability, and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls such
Agent within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as such Agent, and each director
of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation and filing of the
Registration Statement and all amendments thereto and
the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of
this Agreement;
(c) The preparation, printing, issuance and
delivery of the Notes, including any fees and expenses
relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's
accountants and counsel, of the Note Trustee and its
counsel, the Mortgage Trustee and its counsel, and of
any Calculation Agent;
(e) The reasonable fees and disbursements of
counsel to the Agents incurred from time to time in
connection with the transactions contemplated hereby;
(f) The qualification of the Notes under state
securities laws in accordance with the provisions of
Section 4(h) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the
Agents in connection therewith and in connection with
the preparation of any Blue Sky Survey and any Legal
Investment Survey;
(g) The printing and delivery to the Agents in
quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto, and
of the Prospectus and any amendments or supplements
thereto, and the delivery by the Agents of the
Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales
of the Notes;
(h) The preparation, printing, reproducing and
delivery to the Agents of copies of the Indenture and
all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the
rating of the Notes;
(j) The fees and expenses, if any, incurred with
respect to any filing with the National Association of
Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket
expenses of the Agents incurred with the approval of
the Company;
(l) The cost of preparing, and providing any
CUSIP or other identification numbers for, the Notes;
and
(m) The fees and expenses of any Depositary (as
defined in the Indenture) and any nominees thereof in
connection with the Notes.
SECTION 11. Representations, Warranties and Agreements
to Survive Delivery.
All representations, warranties and agreements
contained in this Agreement or in certificates of officers of the
Company submitted pursuant hereto or thereto, shall remain
operative and in full force and effect, regardless of any
investigation made by or on behalf of the Agents or any
controlling person of the Agents, or by or on behalf of the
Company, and shall survive each delivery of and payment for any
of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement
(excluding any Terms Agreement) may be terminated for any reason,
at any time by either the Company or the Agents upon the giving
of 30 days' written notice of such termination to the other party
hereto.
(b) Termination of a Terms Agreement. An Agent may
terminate any Terms Agreement to which it is a party, immediately
upon notice to the Company, at any time prior to the Settlement
Date relating thereto (i) if there has been, since the date of
such Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of
business, or (ii) if there shall have occurred any material
adverse change in the financial markets in the United States or
any outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which is such as
to make it, in the judgment of such Agent, impracticable to
market the Notes or enforce contracts for the sale of the Notes,
or (iii) if trading in any securities of the Company has been
suspended by the SEC or a national securities exchange, or if
trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said
exchanges or by order of the SEC or any other governmental
authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities, or (iv) if the rating
assigned by any nationally recognized securities rating agency to
any debt securities of the Company as of the date of any
applicable Terms Agreement shall have been lowered since that
date or if any such rating agency shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company,
or (v) if there shall have come to the attention of such Agent
any facts that would cause such Agent to believe that the
Prospectus, at the time it was required to be delivered to a
purchaser of Notes, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances
existing at the time of such delivery, not misleading.
(c) General. In the event of any such termination,
neither party will have any liability to the other party hereto,
except that (i) the Agents shall (except in the case of a
termination pursuant to Section 12(b)(ii)) be entitled to any
commission earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of termination (a) the
Agents shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (b) an offer to
purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or the agent of such
purchaser, of the Note or Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenant set forth
in Section 4(g) hereof, the provisions of Section 5 hereof, the
indemnity and contribution agreements set forth in Sections 8 and
9 hereof, and the provisions of Sections 11 and 15 hereof shall
remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required
under the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram,
and any such notice shall be effective when received at the
address specified below.
If to the Company:
Kansas City Power & Light Company
1201 Walnut
Kansas City, Missouri 64106
Attention: Mr. John J. DeStefano, Treasurer
Telecopy: (816) 556-2787
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy: (212) 449-2234
Smith Barney Inc.
1345 Avenue of the Americas
New York, New York 10105
Attention: Manager, Capital Transactions Group
Telecopy: (212) 698-5517
or at such other address as such party may designate from time to
time by notice duly given in accordance with the terms of this
Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of
the parties shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made
and to be performed in such State. Any suit, action or
proceeding brought by the Company against the Agents in
connection with or arising under this Agreement shall be brought
solely in the state or federal court of appropriate jurisdiction
located in the Borough of Manhattan, The City of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be
binding upon the Agents and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal
representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of
the parties hereto and their respective successors and said
controlling persons and officers and directors and their heirs
and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
If the foregoing is in accordance with the Agents'
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument along
with all counterparts will become a binding agreement between the
Agents and the Company in accordance with its terms.
Very truly yours,
KANSAS CITY POWER & LIGHT COMPANY
By: _________________________
Name:
Title:
Accepted:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
BY: ______________________________
Name:
Title:
Smith Barney Inc.
BY: ______________________________
Name:
Title:
EXHIBIT A
The following terms, if applicable, shall be agreed to
by the Agents and the Company pursuant to each Terms Agreement:
Principal Amount: $_________________
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Date of Maturity:
Purchase Price: ____%
Settlement Date and Time:
Additional Terms:
Also, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b)
of the Distribution Agreement.
Legal Opinion pursuant to Section 7(c) of the
Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the
Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the
Distribution Agreement.
SCHEDULE A
As compensation for the services of the Agents
hereunder, the Company shall pay to them, on a discount basis, a
commission for the sale of each Note equal to the principal
amount of such Note multiplied by the appropriate percentage set
forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year.......... .125%
From 1 year to less than 18 months......... .150
From 18 months to less than 2 years........ .200
From 2 years to less than 3 years.......... .250
From 3 years to less than 4 years.......... .350
From 4 years to less than 5 years.......... .450
From 5 years to-less than 6 years.......... .500
From 6 years to less than 7 years.......... .550
From 7 years to less than 10 years......... .600
From 10 years to less than 15 years........ .625
From 15 years to less than 20 years........ .700
From 20 years to 30 years.................. .750
APPENDIX I
FORM OF OFFICER'S CERTIFICATE
KANSAS CITY POWER & LIGHT COMPANY
I, [authorized officer's name], [title) of Kansas City
Power & Light Company, a Missouri corporation (the "Company"),
pursuant to Section 5(b) of the Distribution Agreement dated
November __, 1994 (the "Distribution Agreement") between the
Company and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, and Smith Barney Inc., hereby certify that,
to the best of my knowledge, after reasonable investigation:
1. Since _________, 19__, there has been no material
adverse change in the condition, financial or otherwise, of the
Company, or in the earnings, business affairs or business
prospects of the Company, whether or not arising in the ordinary
course of business other than as contemplated or set forth in the
prospectus (the "Prospectus") contained in the registration
statement (File No. 33-________) relating to the Company's
Medium-Term Notes (the "Registration Statement");
2. The representations and warranties of the Company
contained in Section 2 of the Distribution Agreement are true and
correct with the same force and effect as though expressly made
at and as of the date hereof;
3. The Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
at or prior to the date hereof; and
4. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Securities and
Exchange Commission.
IN WITNESS WHEREOF, I have hereunto signed my name and
affixed the seal of the Company.
Dated: _______, 19__
________________________
[Title]
[SEAL]
_________________________
[Title]
APPENDIX II
___________________, 19__
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Smith Barney Inc.
c/o Merrill Lynch & Co.
North Tower, 23rd Floor
World Financial Center
New York, New York 10281-1323
Re: Kansas City Power & Light Company
Medium-Term Notes
Dear Sirs:
I have delivered an opinion to you dated November __,
19__ as counsel to Kansas City Power & Light Company (the
"Company"), pursuant to Section 5(a) of the Distribution
Agreement, dated as of November __, 1994 between the Company and
you, as Agents. You may continue to rely upon such opinion as if
it were dated as of this date except that all statements and
opinions contained therein shall be deemed to relate to the
Registration Statement and Prospectus as amended and supplemented
to this date.
This letter is delivered to you pursuant to Section
7(c) of the Distribution Agreement.
Very truly yours,
EXHIBIT 4-i
TENTH SUPPLEMENTAL INDENTURE
KANSAS CITY POWER & LIGHT COMPANY
UMB BANK, N.A.
DATED AS OF NOVEMBER 1, 1994
CREATING A MORTGAGE BOND
MEDIUM-TERM SERIES E
SUPPLEMENTAL TO GENERAL MORTGAGE INDENTURE AND
DEED OF TRUST DATED AS OF DECEMBER 1, 1986
TENTH SUPPLEMENTAL INDENTURE, dated as of November 1, 1994, between
KANSAS CITY POWER & LIGHT COMPANY, a Missouri corporation ("Company"), and
UMB BANK, N.A. (formerly United Missouri Bank of Kansas City, N.A.), as
Trustee ("Trustee") under the Indenture hereinafter mentioned.
WHEREAS, all capitalized terms used in this Supplemental Indenture have
the respective meanings set forth in the Indenture;
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a General Mortgage Indenture and Deed of Trust ("Indenture"), dated
as of December 1, 1986, to secure Mortgage Bonds issued by the Company
pursuant to the Indenture, unlimited in aggregate principal amount except as
therein otherwise provided.
WHEREAS, the Company has heretofore executed and delivered to the
Trustee, a First Supplemental Indenture, dated as of December 1, 1986,
creating a first series of Mortgage Bonds;
WHEREAS, the Company has heretofore executed and delivered to the
Trustee, a Second Supplemental Indenture, dated as of April 1, 1988, creating
a second series of Mortgage Bonds;
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a Third Supplemental Indenture, dated as of April 1, 1991, creating
a third series of Mortgage Bonds;
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a Fourth Supplemental Indenture, dated as of February 15, 1992,
creating a fourth series of Mortgage Bonds;
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a Fifth Supplemental Indenture, dated as of September 1, 1992,
creating a fifth series of Mortgage Bonds;
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a Sixth Supplement Indenture, dated as of November 1, 1992, creating
a sixth series of Mortgage Bonds;
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a Seventh Supplemental Indenture, dated as of October 1, 1993,
creating a seventh series of Mortgage Bonds;
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Eighth Supplemental Indenture, dated as of December 7, 1993,
creating an eighth series of Mortgage Bonds;
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a Ninth Supplemental Indenture, dated as of February 1, 1994,
creating a ninth series of Mortgage Bonds;
WHEREAS, the Company desires in and by this Supplemental Indenture to
create a tenth series of Mortgage Bonds to be issued under the Indenture, to
designate such series, to set forth maturity date or dates, interest rate or
rates and the form and other terms of such Mortgage Bonds;
WHEREAS, all acts and things necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid, binding and legal
instrument in accordance with its terms and for the purposes herein
expressed, have been done and performed; and the execution and delivery of
this Supplemental Indenture have been in all respects duly authorized;
NOW, THEREFORE, in consideration of the premises and in further
consideration of the sum of One Dollar in lawful money of the United States
of America paid to the Company by the Trustee at or before the execution and
delivery of this Supplemental Indenture, the receipt whereof is hereby
acknowledged, and of other good and valuable consideration, it is agreed by
and between the Company and the Trustee as follows:
DESCRIPTION OF CERTAIN PROPERTY SUBJECT
TO THE LIEN OF THE INDENTURE
The Company hereby confirms unto the Trustee, and records the
description of the property described in Schedule A attached and expressly
made a part hereof, which property is subject to the lien of the Indenture in
all respects as if originally described herein.
ARTICLE I.
MORTGAGE BOND, MEDIUM-TERM SERIES E
SECTION 1. (a) There is hereby created a tenth series of Mortgage
Bonds to consist of one Mortgage Bond issued under and secured by the
Indenture, to be designated as "Mortgage Bond, Medium-Term Series E", of the
Company ("Bond of Tenth Series").
(b) The Bond of Tenth Series shall be issued in the principal amount
of $125,000,000 as provided in the Indenture and in this Supplemental
Indenture, but the principal amount of the Bond of Tenth Series actually
outstanding as of any particular time shall be equal to the principal amount
of securities titled "Secured Medium-Term Notes" ("Notes") which at such
particular time are outstanding under the Indenture dated as of November 1,
1994 ("Note Indenture"), between the Company and The Bank of New York, as
trustee ("Note Trustee").
(c) The Bond of Tenth Series shall be a registered Bond without
coupons and shall be dated November 10, 1994.
(d) The principal of the Bond of Tenth Series shall be paid in
installments ("Installments").
(e) Each Installment (i) shall be equal to the principal amount of,
and any premium on, a particular Note which the Company is obligated to pay
on a particular day, (ii) shall be payable on the date or dates on which, and
at the same place or places as, the principal of, and any premium on, such
Note is payable, (iii) shall bear interest, if any, from the date of such
Note at the rate of interest borne by such Note, and interest, if any, on
such Installment shall be paid on the date or dates on which, and at the same
place or places as, interest is payable on such Note.
(f) The principal of and interest on the Bond of Tenth Series shall
be payable in lawful money of the United States of America.
SECTION 2. At such time or times that the Company (a) delivers to the
Note Trustee and the Trustee an Officers' Certificate which reduces the
maximum aggregate principal amount of Notes which may be issued pursuant to
the Note Indenture by a specific principal amount or (b) pays, is deemed to
have paid or otherwise satisfies and discharges its obligation to pay any
Installment, the principal amount of the Bond of Tenth Series shall be
reduced by such specific principal amount or such Installment, and such
specific principal amount and Installment shall be deemed for all purposes of
the Indenture, including Article IV and Article XI of the Indenture, to be
Retired Bonds.
SECTION 3. The Bond of Tenth Series is not transferable except to a
successor Note Trustee under the Note Indenture.
SECTION 4. The Company covenants and agrees that (a) it will not issue
or permit to be outstanding at any time an aggregate principal amount of
Notes in excess of $125,000,000, or such lesser amount as may from time to
time be established by an Officers' Certificate delivered by the Company to
the Trustee and the Note Trustee, (b) it will not issue or permit to be
outstanding any Note which matures later than November 1, 2026, and (c) it
will not issue any Notes payable other than in lawful money of the United
States of America.
SECTION 5. (a) The Bond of Tenth Series shall be pledged by the
Company with and delivered to the Note Trustee to secure payment of the
principal of and any premium or interest on the Notes.
(b) The obligation of the Company to make any payment of the
principal of or any premium or interest on the Bond of Tenth Series shall be
fully or partially, as the case may be, paid, deemed to have been paid or
otherwise satisfied and discharged to the extent that at the time any such
payment shall be due, the then due principal of and any premium or interest
on the Notes shall have been fully or partially paid, deemed to have been
paid or otherwise satisfied and discharged.
(c) The obligation of the Company to make any payment of the
principal of or premium or interest on any Installment shall be satisfied and
discharged if the Note to which such Installment relates is no longer
outstanding under the Note Indenture.
(d) The Trustee shall conclusively presume that the obligation of the
Company to make payments of the principal of or any premium or interest on
the Bond of Tenth Series shall have been fully paid, deemed to have been paid
or otherwise satisfied and discharged when due unless and until the Trustee
shall have received written notice from the Note Trustee, signed by a
responsible officer (as defined in the Note Indenture) of the Note Trustee,
stating that the payments of principal of and premium or interest on Notes
specified in such notice were not fully paid, deemed to have been paid or
otherwise satisfied and discharged when due and remain unpaid at the date of
such notice.
SECTION 6. The form of the Bond of Tenth Series shall be substantially
as follows:
(FORM OF BOND OF TENTH SERIES)
KANSAS CITY POWER & LIGHT COMPANY
MORTGAGE BOND, MEDIUM-TERM SERIES E
$125,000,000
Bond Number R-1
Kansas City Power & Light Company, a Missouri corporation ("Company"),
for value received, hereby promises to pay to The Bank of New York, as
Trustee under the Indenture dated as of November 1, 1994, between the Company
and such Trustee ("Note Indenture"), or the successor Trustee under the Note
Indenture, the sum of $125,000,000, or, if less, the aggregate unpaid
principal amount of all Secured Medium-Term Notes ("Notes") outstanding under
the Note Indenture, in installments, each of which (i) shall be equal to the
principal amount of, and any premium on, a particular Note which the Company
is obligated to pay on a particular day, (ii) shall be payable on the date or
dates on which, and at the same place or places as, the principal of, and any
premium on, such Note is payable, and (iii) shall bear interest, if any, from
the date or dates specified in such Note at the rate of interest borne by
such Note, and interest, if any, on such installment shall be paid on the
date or dates on which, and at the same place or places as, interest is
payable on such Note. The principal of and any premium or interest on this
Bond of Tenth Series are payable in lawful money of the United States of
America.
THIS BOND OF TENTH SERIES IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR
TRUSTEE UNDER THE NOTE INDENTURE.
The obligation of the Company to make any payment of the principal of
or any premium or interest on this Bond of Tenth Series shall be fully or
partially, as the case may be, paid, deemed to have been paid or otherwise
satisfied and discharged to the extent that at the time any such payment
shall be due, the then due principal of and any premium or interest on the
Notes shall have been fully or partially paid, deemed to have been paid or
otherwise satisfied and discharged.
By acceptance of, and in consideration for this Bond of Tenth Series,
the Registered Holder of this Bond of Tenth Series agrees to record on the
Schedule to this Bond of Tenth Series which is a part hereof, (a) the date
each Note is issued under the Note Indenture, (b) the principal amount of
such Note, (c) the interest rate, if any, payable on such Note, (d) the date
or dates upon which principal of and any premium or interest on such Note are
payable, (e) the redemption date and price or prices, if any, of such Note,
and (f) the date on which such Note ceases to be outstanding under the Note
Indenture, and such record shall be conclusive and binding on the Company
except in the case of manifest error, but the failure of such Registered
Holder to record any of the foregoing shall not limit or otherwise affect the
obligation of the Company to pay when due all principal of and any premium or
interest on this Bond of Tenth Series or any Note.
This Bond of Tenth Series is one, of the series hereinafter specified,
of the bonds of the Company ("Bonds") known as its "Mortgage Bonds," issued
and to be issued in one or more series under and secured by a General
Mortgage Indenture and Deed of Trust dated as of December 1, 1986
("Indenture"), duly executed by the Company to UMB Bank, N.A., (formerly
United Missouri Bank of Kansas City, N.A.) Trustee ("Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a description of the property mortgaged and pledged, the nature and
extent of the security, the terms and conditions upon which the Bonds are,
and are to be, issued and secured, and the rights of the owners of the Bonds
and of the Trustee in respect of such security, and the prior liens to which
the security for the Bonds are junior; capitalized terms used in this Bond of
Tenth Series have the respective meanings set forth in the Indenture. As
provided in the Indenture, the Bonds may be various principal sums, are
issuable in series, may mature at different times, may bear interest at
different rates and may otherwise vary as therein provided; and this Bond of
Tenth Series is the only one of the series entitled "Mortgage Bond, Medium-
Term Series E," created by a Tenth Supplemental Indenture dated as of
November 1, 1994, as provided for in the Indenture. With the consent of the
holders of more than 50% in aggregate principal amount of the Outstanding
Bonds, the Company and the Trustee may from time to time and at any time,
enter into a Supplemental Indenture for the purpose of adding any provisions
to or changing in any manner or eliminating any provision of the Indenture or
of any Supplemental Indenture or of modifying in any manner the rights of the
holders of the Bonds and any coupons; provided, however, that (i) no such
Supplemental Indenture shall, without the consent of the holder of each
Outstanding Bond affected thereby (A) extend the fixed maturity of any Bonds,
change any terms of any sinking fund or analogous fund or conversion rights
with respect to any Bonds, or reduce the rate or extend the time of payment
of interest thereon, or reduce the principal amount thereof, or, subject to
certain exceptions, limit the right of a holder of Bonds to institute suit
for the enforcement of payment of principal of or any premium or interest on
such Bonds in accordance with the terms of said Bonds, or (B) reduce the
aforesaid percentage of Bonds, the holders of which are required to consent
to any such Supplemental Indenture, or (C) permit the creation by the Company
of any Prior Lien, and (ii) no such action which would affect the rights of
the holders of Bonds of only one series may be taken unless approved by the
holders of more than 60% in aggregate principal amount of the Outstanding
Bonds of such series affected, but if any such action would affect the Bonds
of two or more series, the approval of such action on behalf of the holders
of Bonds of such two or more series may be effected by holders of more than
60% in aggregate principal amount of the Outstanding Bonds of such two or
more series, which need not include 60% in principal amount of Outstanding
Bonds of each of such series; provided, however, that, in no event shall such
action be effective unless approved by holders of more than 50% in aggregate
principal amount of all the then Outstanding Bonds of all such series.
In the event that this Bond of Tenth Series shall not be presented for
payment when all Notes theretofore issued are no longer outstanding under the
Note Indenture, then all liability of the Company to the Registered Holder of
this Bond of Tenth Series for the payment of the principal hereof and any
premium or interest hereon shall forthwith cease, determine and be completely
discharged and the right of such Registered Holder of this Bond of Tenth
Series for the payment of the principal hereof and any premium or interest
hereon shall forthwith cease, determine and be completely discharged and such
Registered Holder shall no longer be entitled to any lien or benefit of the
Indenture.
In case an event of Default shall occur, the principal of this Bond of
Tenth Series may become or be declared due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture.
This Bond of Tenth Series is transferable by the Registered Holder
hereof in person or by attorney duly authorized in writing, only to a
successor to the Note Trustee under the Note Indenture, at the principal
office of the Trustee in Kansas City, Missouri, (or at the principal office
of any successor in trust), upon surrender and cancellation of this Bond of
Tenth Series, and upon any such transfer a new registered Bond of Tenth
Series without coupons of the same series for the same principal amount will
be issued to the transferee in exchange herefor.
The Company and the Trustee may deem and treat the person in whose name
this Bond of Tenth Series is registered as the absolute owner hereof for the
purpose of receiving payment and for all other purposes, and neither the
Company nor the Trustee shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or any
premium or interest on this Bond of Tenth Series, or for any claim based
hereon or otherwise in respect hereof or of the Indenture or any Supplemental
Indenture, against any incorporator, stockholder, director or officer, past,
present or future, of the Company or of any predecessor corporation, as such,
either directly or through the Company or of 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 of incorporators, stockholders, directors and officers being
waived and released by every owner hereof by the acceptance of this Bond of
Tenth Series and as part of the consideration for the issue hereof, and being
likewise waived and released by the terms of the Indenture.
SCHEDULE
OF
NOTES
Date
Original Interest Principal No Record
Issue Principal Interest Payment Payment Redemption Longer Made
Date Amount Rate Dates Dates Date Outstanding By
This Bond of Tenth Series shall not be valid or become obligatory
for any purpose unless and until the certificate of authentication hereon
shall have been executed by the Trustee or its successor in trust under said
Indenture.
IN WITNESS WHEREOF, KANSAS CITY POWER & LIGHT COMPANY has caused
this Bond of Tenth Series to be executed in its name by the manual or
facsimile signature of its Chairman of the Board or its President or one of
its Vice Presidents, and its corporate seal to be impressed or imprinted
hereon and attested by the manual or facsimile signature of its Secretary or
one of its Assistant Secretaries.
KANSAS CITY POWER & LIGHT COMPANY,
Dated: By____________________________
Authorized Signature
________________________________
Attest:
________________________________
Secretary or Assistant Secretary
The form of Trustee's certificate to appear on the Bond of Tenth
Series shall be substantially as follows:
(FORM OF TRUSTEE'S CERTIFICATE)
This Bond of Tenth Series is the Bond of the series designated therein,
described in the within-mentioned Indenture and Tenth Supplemental Indenture.
UMB BANK, N.A.,
as Trustee,
By_____________________________
Authorized Signature
ARTICLE II.
ISSUE OF BOND OF TENTH SERIES.
SECTION 1. The Bond of Tenth Series may be executed, authenticated and
delivered as permitted by the provisions of Article III, IV, V or VI of the
Indenture.
ARTICLE III.
THE TRUSTEE.
SECTION 1. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution hereof by the Company, or for or
in respect of the recitals and statements contained herein, all of which
recitals and statements are made solely by the Company.
Except as herein otherwise provided, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee
by reason of this Supplemental Indenture other than as set forth in the
Indenture; and this Supplemental Indenture is executed and accepted on behalf
of the Trustee, subject to all the terms and conditions set forth in the
Indenture, as fully to all intents as if the same were herein set forth at
length.
ARTICLE IV.
MISCELLANEOUS PROVISIONS.
SECTION 1. On or before the 45th day after the end of each fiscal
quarter of the Company, it shall deliver to the Trustee an Officers'
Certificate which shall disclose the aggregate principal amount of Notes
which were outstanding as of the last day of such fiscal quarter.
SECTION 2. Except insofar as herein otherwise expressly provided, all
the provisions, definitions, terms and conditions of the Indenture, as
amended, shall be deemed to be incorporated in, and made a part of, this
Supplemental Indenture; and the Indenture as supplemented and amended by this
Supplemental Indenture is in all respects ratified and confirmed; and the
Indenture, as amended, and this Supplemental Indenture shall be read, taken
and construed as one and the same instrument.
SECTION 3. Nothing in this Supplemental Indenture is intended, or
shall be construed to give to any person or corporation, other than the
parties hereto and the holders of Bond of Tenth Series issued and to be
issued under and secured by the Indenture, any legal or equitable right,
remedy or claim under or in respect of this Supplemental Indenture, or under
any covenant, condition or provision herein contained, all the covenants,
conditions and provisions of this Supplemental Indenture being intended to
be, and being, for the sole and exclusive benefit of the parties hereto and
of the holders of Bond of Tenth Series issued and to be issued under the
Indenture and secured thereby.
SECTION 4. All covenants, stipulations and agreements in this
Supplemental Indenture contained by or on behalf of the Company shall bind
and (subject to the provisions of the Indenture, as amended) inure to the
benefit of its successors and assigns, whether so expressed or not.
SECTION 5. The headings of the several Articles of this Supplemental
Indenture are inserted for convenience of reference, and shall not be deemed
to be any part hereof.
SECTION 6. This Supplemental Indenture may be executed in any number
of counterparts, and each of such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, KANSAS CITY POWER & LIGHT COMPANY has caused this
Supplemental Indenture to be executed by its Chairman of the Board or one of
its Vice Presidents and its corporate seal to be hereunto affixed, duly
attested by its Secretary or one of its Assistant Secretaries, and UMB BANK,
N.A., as Trustee as aforesaid, has caused the same to be executed by its
President or one of its Vice Presidents and its corporate seal to be hereunto
affixed, duly attested by one of its Assistant Secretaries, as of the day and
year first above written.
KANSAS CITY POWER & LIGHT COMPANY,
By_______________________________
(B. J. Beaudoin)
ATTEST:
___________________________
(Jeanie Sell Latz)
UMB BANK, N.A.,
By______________________________
(Frank C. Bramwell)
ATTEST:
___________________________
(R. William Bloemker)
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this __th day of November, 1994, before me, a Notary Public in and
for said County in the State aforesaid, personally appeared B. J. Beaudoin,
to me personally known, who, being by me duly sworn, did say that he is
Senior Vice President-Finance and Business Development and Chief Financial
Officer of KANSAS CITY POWER & LIGHT COMPANY, a Missouri corporation, one of
the corporations described in and which executed the foregoing instrument,
that the seal affixed to the foregoing instrument is the corporate seal of
said corporation, and that said instrument was signed and sealed on behalf of
said corporation by authority of its Board of Directors; and said B. J.
Beaudoin acknowledged said instrument and the execution thereof to be the
free and voluntary act and deed of said corporation by it voluntary executed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid the day and year first above written.
_________________________
Janee C. Rosenthal
Notary Public, Clay
County, Missouri
(SEAL)
My commission expires
February 25, 1995
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this __th day of November, 1994, before me, a Notary Public in and
for said County in the State aforesaid, personally appeared Frank C.
Bramwell, to me personally known, who, being by me duly sworn, did say that
he is a Vice President of UMB BANK, N.A., a national banking association
organized and existing under the laws of the United States of America, one of
the corporations described in and which executed the foregoing instrument,
that the seal affixed to the foregoing instrument is the corporate seal of
said corporation, and that said instrument was signed and sealed on behalf of
said corporation by authority of its Board of Directors; and said Frank C.
Bramwell acknowledged said instrument and the execution thereof to be the
free and voluntary act and deed of said corporation by it voluntary executed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid the day and year first above written.
__________________________
Janee C. Rosenthal
Notary Public, Clay
County, Missouri
(SEAL)
My commission expires
February 25, 1995
SCHEDULE A
Real Estate in Missouri
All of the following-described real estate of the Company situated in
the State of Missouri:
Tiffany Substation site, Platte County, Missouri:
A tract of land located in and being a part of the Northwest Quarter
Section of the Southeast Quarter Section of Section 1, Township 51, Range 34,
Kansas City, Platte County, Missouri, and more particularly described as
follows:
Beginning at the intersection of the West line of said Quarter Quarter
(1/4 1/4) Section, and the Southerly right-of-way line of Northwest Tiffany
Springs Road, as now established, thence South eight-nine degrees, fifty-nine
minutes, thirty-six seconds East (S 89 degrees 59'36" E) along said Southerly
right of way line a distance of six hundred sixty (660) feet, thence South
zero degrees, fifteen minutes, fifty-nine seconds West (S 00 degrees 15'59" W)
a distance of six hundred forty-seven (647) feet, thence North eight-nine
degrees fifty-nine minutes, thirty-six seconds West (N 89 degrees 59'36" W)
to a point on the West line of said quarter quarter (1/4 1/4) section, thence
North along the West line of said quarter quarter (1/4 1/4) section, to the
point of beginning, containing 10 acres more or less.
Exhibit 4-j
10/26/94
KANSAS CITY POWER & LIGHT COMPANY
AND
THE BANK OF NEW YORK
Trustee
INDENTURE
Dated as of November 1, 1994
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated
as of November 1, 1994, between Kansas City Power & Light Company
and The Bank of New York, Trustee:
Section of Act Section of Indenture
310(a)(1)(2) and (5) ................ 9.09
310(a)(3) and (4) ................... Not applicable
310(b) .............................. 9.08 and 9.10
310(c) .............................. Not applicable
311(a) and (b) ...................... 9.14
311(c) .............................. Not applicable
312(a) .............................. 7.01
312(b) and (c) ...................... 7.01
313(a) .............................. 7.03
313(b)(1) ........................... Not applicable
313(b)(2) ........................... 7.03
313(c) .............................. 7.03
313(d) .............................. 7.03
314(a) .............................. 6.04, 7.02
314(b) .............................. 6.05
314(c)(1) and (2) ................... 15.05
314(c)(3) ........................... Not applicable
314(d) .............................. Not applicable
314(e) .............................. 15.05
314(f) .............................. Not applicable
315(a), (c) and (d) ................. 9.01
315(b) .............................. 8.09
315(e) .............................. 8.10
316(a)(1) ........................... 8.01 and 8.08
316(a)(2) ........................... Omitted
316(a) last sentence ................ 10.04
316(b) .............................. 8.04
316(c) .............................. 10.06
317(a) .............................. 8.02
317(b) .............................. Omitted
318(a) .............................. 15.07
____________________________
This tie-sheet does not constitute a part of the Indenture.
TABLE OF CONTENTS
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE.
Definitions.
SECTION 1.01. Definitions . . . . . . . . . . . . . . . 1
Accrued Interest . . . . . . . . . . . . . . . 2
Accrued Interest Factor . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . 2
Authorized Agent . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . 3
Base Rate. . . . . . . . . . . . . . . . . . 3
Basis Point. . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . 3
Calculation Agent. . . . . . . . . . . . . . . 3
Calculation Date . . . . . . . . . . . . . . . 4
Commercial Paper Rate. . . . . . . . . . . . . 4
Commercial Paper Rate Interest
Determination Date . . . . . . . . . . . . . 4
Commercial Paper Rate Notes. . . . . . . . . . 4
Company. . . . . . . . . . . . . . . . . . . . 5
Company Order . . . . . . . . . . . . . . . . 5
Composite Quotations . . . . . . . . . . . . . 6
Corporate Trust Office of Trustee. . . . . . . 6
CUSIP. . . . . . . . . . . . . . . . . . . . . 6
Depositary . . . . . . . . . . . . . . . . . . 6
Discharged . . . . . . . . . . . . . . . . . . 6
Event of Default . . . . . . . . . . . . . . . 6
Fixed Rate Note . . . . . . . . . . . . . . . 7
Floating Rate Note . . . . . . . . . . . . . . 7
Global Note . . . . . . . . . . . . . . . . . 7
H.15(519). . . . . . . . . . . . . . . . . . . 7
Indenture. . . . . . . . . . . . . . . . . . . 7
Index Maturity . . . . . . . . . . . . . . . . 7
Initial Interest Date. . . . . . . . . . . . . 7
Interest Accrual Period. . . . . . . . . . . . 7
Interest Determination Date. . . . . . . . . . 8
Interest Factor. . . . . . . . . . . . . . . . 8
Interest Payment Date. . . . . . . . . . . . . 8
Interest Payment Period. . . . . . . . . . . . 8
Interest Rate. . . . . . . . . . . . . . . . . 9
Interest Reset Date. . . . . . . . . . . . . . 10
LIBOR. . . . . . . . . . . . . . . . . . . . . 10
LIBOR Interest Determination Date. . . . . . . 11
LIBOR Notes. . . . . . . . . . . . . . . . . . 11
London Banking Day . . . . . . . . . . . . . . 11
Maturity . . . . . . . . . . . . . . . . . . . 11
Maximum Interest Rate. . . . . . . . . . . . . 11
Minimum Interest Rate. . . . . . . . . . . . . 12
Money Market Yield . . . . . . . . . . . . . . 12
Mortgage . . . . . . . . . . . . . . . . . . . 12
Mortgage Bonds . . . . . . . . . . . . . . . . 12
Mortgage Supplemental Indenture. . . . . . . . 12
Mortgage Trustee . . . . . . . . . . . . . . . 12
Note or Notes; Outstanding . . . . . . . . . . 12
Noteholder . . . . . . . . . . . . . . . . . . 13
Officers' Certificate. . . . . . . . . . . . . 13
Opinion of Counsel . . . . . . . . . . . . . . 13
Original Issue Date . . . . . . . . . . . . . 14
Person . . . . . . . . . . . . . . . . . . . . 14
Pledged Bond . . . . . . . . . . . . . . . . . 14
Principal Executive Offices of the Company . . 14
Record Date. . . . . . . . . . . . . . . . . . 14
Redemption Date. . . . . . . . . . . . . . . . 15
Responsible Officer. . . . . . . . . . . . . . 15
Spread . . . . . . . . . . . . . . . . . . . . 15
Spread Multiplier. . . . . . . . . . . . . . . 15
Treasury . . . . . . . . . . . . . . . . . . . 15
Treasury Bills . . . . . . . . . . . . . . . . 15
Treasury Rate. . . . . . . . . . . . . . . . . 15
Treasury Rate Interest
Determination Date . . . . . . . . . . . . . 16
Treasury Rate Notes. . . . . . . . . . . . . . 16
Trustee. . . . . . . . . . . . . . . . . . . . 16
U.S. Government Obligations. . . . . . . . . . 16
ARTICLE TWO.
Form, Issue, Execution, Note Registration and
Exchange of Notes.
Section 2.01. Form Generally. . . . . . . . . . . . . . 17
Section 2.02. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . 17
Section 2.03. Amount Limited. . . . . . . . . . . . . . 18
Section 2.04. Denominations, Dates, Interest Payment
and Record Dates. . . . . . . . . . . . 18
Section 2.05. Execution, Authentication, Delivery
and Dating. . . . . . . . . . . . . . . 20
Section 2.06. Exchange and Registration of Transfer
of Notes. . . . . . . . . . . . . . . . 23
Section 2.07. Mutilated, Destroyed, Lost or
Stolen Notes. . . . . . . . . . . . . . 24
Section 2.08. Temporary Notes . . . . . . . . . . . . . 25
Section 2.09. Cancellation of Notes Paid, etc.. . . . . 25
Section 2.10. Interest Rights Preserved . . . . . . . . 25
Section 2.11. Payment of Notes. . . . . . . . . . . . . 25
Section 2.12. Notes Issuable in the Form of
a Global Note . . . . . . . . . . . . 26
Section 2.13. CUSIP Numbers . . . . . . . . . . . . . . 29
ARTICLE THREE.
Redemption of Notes.
Section 3.01. Applicability of Article . . . . . . . . 29
Section 3.02. Notice of Redemption; Selection
of Notes . . . . . . . . . . . . . . . 29
Section 3.03. Payment of Notes on Redemption;
Deposit of Redemption Price. . . . . . 30
ARTICLE FOUR.
Pledged Bond.
Section 4.01. Pledge. . . . . . . . . . . . . . . . . . 31
Section 4.02. Receipt . . . . . . . . . . . . . . . . . 31
Section 4.03. Trustee to Exercise rights of Mortgage
Bondholder. . . . . . . . . . . . . . . 31
Section 4.04. No Transfer of Pledged Bond, Exception . 31
Section 4.05. Release of Pledged Bond . . . . . . . . . 32
Section 4.06. Voting of Pledged Bond. . . . . . . . . . 32
Section 4.07. Note Issuances Recorded on
Pledged Bond. . . . . . . . . . . . . . 32
Section 4.08. Further Assurances. . . . . . . . . . . . 32
ARTICLE FIVE.
Satisfaction and Discharge; Unclaimed Moneys.
Section 5.01. Satisfaction and Discharge. . . . . . . . 33
Section 5.02. Deposited Moneys to Be Held in
Trust by Trustee. . . . . . . . . . . . 35
Section 5.03. Return of Unclaimed Moneys. . . . . . . . 35
Section 5.04. Reinstatement . . . . . . . . . . . . . . 36
ARTICLE SIX.
Particular Covenants Of The Company.
Section 6.01. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . . 36
Section 6.02. Office for Notices and Payments, etc. . . 36
Section 6.03. Appointments to Fill Vacancies in
Trustee's Office. . . . . . . . . . . . 37
Section 6.04. Annual Statement and Notice . . . . . . . 37
Section 6.05. Opinions of Counsel . . . . . . . . . . . 37
ARTICLE SEVEN.
Noteholder Lists And Reports By The Company
And The Trustee.
Section 7.01. Noteholder Lists. . . . . . . . . . . . . 38
Section 7.02. Securities and Exchange
Commission Reports. . . . . . . . . . . 38
Section 7.03. Reports by the Trustee. . . . . . . . . . 38
ARTICLE EIGHT.
Remedies Of The Trustee And Noteholders
On Event Of Default.
Section 8.01. Events of Default . . . . . . . . . . . . 38
Section 8.02. Payment of Notes on Default;
Suit Therefor . . . . . . . . . . . . . 41
Section 8.03. Application of Moneys Collected
by Trustee . . . . . . . . . . . . . . 42
Section 8.04. Proceedings by Noteholders. . . . . . . . 43
Section 8.05. Proceedings by Trustee. . . . . . . . . . 44
Section 8.06. Remedies Cumulative and Continuing. . . . 44
Section 8.07. Restoration of Rights and Remedies. . . . 44
Section 8.08. Direction of Proceedings and Waiver
of Defaults by Majority Noteholders . . 45
Section 8.09. Notice of Default . . . . . . . . . . . 45
Section 8.10. Undertaking to Pay Costs . . . . . . . . 46
ARTICLE NINE.
Concerning The Trustee.
Section 9.01. Duties and Responsibilities of Trustee. . 46
Section 9.02. Reliance on Documents, Opinions, etc. . . 47
Section 9.03. No Responsibility for Recitals, etc. . . 49
Section 9.04. Trustee, Authenticating Agent
or Registrar May Own Notes. . . . . . 49
Section 9.05. Moneys to Be Held in Trust. . . . . . . . 49
Section 9.06. Compensation and Expenses of Trustee. . . 49
Section 9.07. Officers' Certificate Evidence. . . . . . 50
Section 9.08. Conflicting Interest of Trustee . . . . . 50
Section 9.09. Eligibility of Trustee. . . . . . . . . . 50
Section 9.10. Resignation or Removal of Trustee . . . 51
Section 9.11. Appointment of Successor Trustee . . . . 52
Section 9.12. Acceptance by Successor Trustee . . . . . 52
Section 9.13. Succession by Merger, etc. . . . . . . . 53
Section 9.14. Limitations on Rights of Trustee
as a Creditor . . . . . . . . . . . . . 54
Section 9.15. Authenticating Agent. . . . . . . . . . . 54
Section 9.16. Trustee's Application for Instructions
from the Company. . . . . . . . . . . . 55
ARTICLE TEN.
Concerning The Noteholders.
Section 10.01. Action by Noteholders. . . . . . . . . . 55
Section 10.02. Proof of Execution by Noteholders. . . . 56
Section 10.03. Who Deemed Absolute Owners . . . . . . . 56
Section 10.04. Company-Owned Notes Disregarded. . . . . 56
Section 10.05. Revocation of Consents; Future . . . . . 56
Holders Bound. . . . . . . . . . . . . 56
Section 10.06. Record Date for Noteholder Acts. . . . . 57
ARTICLE ELEVEN.
Noteholders' Meetings.
Section 11.01. Purposes of Meetings . . . . . . . . . . 57
Section 11.02. Call of Meetings by Trustee. . . . . . . 58
Section 11.03. Call of Meetings by Company or
Noteholders. . . . . . . . . . . . . . 58
Section 11.04. Qualifications for Voting. . . . . . . . 58
Section 11.05. Regulations. . . . . . . . . . . . . . . 58
Section 11.06. Voting . . . . . . . . . . . . . . . . . 59
Section 11.07. Right of Trustee or Noteholders
not Delayed. . . . . . . . . . . . . . 60
ARTICLE TWELVE.
Consolidation, Merger, Conveyance, Transfer or Lease.
Section 12.01. Company May Consolidate, etc., only
on Certain Terms . . . . . . . . . . . 60
Section 12.02. Successor Corporation Substituted. . . . 61
ARTICLE THIRTEEN.
Supplemental Indentures.
Section 13.01. Supplemental Indentures without
Consent of Noteholders . . . . . . . . 61
Section 13.02. Supplemental Indentures with Consent
of Noteholders . . . . . . . . . . . . 62
Section 13.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures. . . 63
Section 13.04. Notation on Notes. . . . . . . . . . . . 64
Section 13.05. Evidence of Compliance of Supplemental
Indenture to Be Furnished Trustee. . . 64
ARTICLE FOURTEEN.
Immunity of Incorporators, Stockholders,
Officers And Directors.
Section 14.01 Indenture and Notes Solely Corporate
Obligations . . . . . . . . . . . . . . 64
ARTICLE FIFTEEN.
Miscellaneous Provisions.
Section 15.01. Provisions Binding on Company's
Successors . . . . . . . . . . . . . . 64
Section 15.02. Official Acts by Successor Corporation . 65
Section 15.03. Addresses for Notices, etc.. . . . . . . 65
Section 15.04. Governing Law. . . . . . . . . . . . . . 65
Section 15.05. Evidence of Compliance with Conditions
Precedent. . . . . . . . . . . . . . . 65
Section 15.06. Business Days. . . . . . . . . . . . . . 66
Section 15.07. Trust Indenture Act to Control . . . . . 67
Section 15.08. Table of Contents, Headings, etc. . . . 67
Section 15.09. Execution in Counterparts. . . . . . . . 67
Section 15.10. Manner of Mailing Notice to
Noteholders. . . . . . . . . . . . . . 67
EXHIBITS.
Exhibit A Form of Bond of Tenth Series
Exhibit B Form of Global Fixed Rate Note
Exhibit C Form of Fixed Rate Note
Exhibit D Form of Global Floating Rate Note
Exhibit E Form of Floating Rate Note
THIS INDENTURE, dated as of November 1, 1994, between
Kansas City Power & Light Company, a corporation duly organized
and existing under the laws of the State of Missouri (hereinafter
sometimes called the "Company"), and The Bank of New York, a New
York banking corporation organized and existing under the laws of
the State of New York (hereinafter called the "Trustee").
Witnesseth:
WHEREAS, for its lawful corporate purposes, the Company
has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its Secured
Medium-Term Notes, (hereinafter sometimes called "Notes"), to be
issued as in this Indenture provided;
AND WHEREAS, all acts and things necessary to make this
Indenture a valid agreement according to its terms have been done
and performed, and the execution of this Indenture and the issue
hereunder of the Notes have in all respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon
which the Notes are, and are to be authenticated, issued and
delivered, and in consideration of the premises, of the purchase
and acceptance of the Notes by the holders thereof and of the sum
of one dollar duly paid to it by the Trustee at the execution of
these presents, the receipt whereof is hereby acknowledged, the
Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time
of the Notes, as follows:
ARTICLE ONE.
Definitions.
Section 1.01. Definitions. The terms defined in this
Article One (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Article One.
Section 1.02. (a) Whenever this Indenture refers to a
provision of the Trust Indenture Act of 1939, as amended ("TIA"),
such provision is incorporated by reference in and made a part of
this Indenture. The following TIA terms incorporated in this
Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture note holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the
Company.
(b) All terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or
defined by a rule of the Securities and Exchange Commission have
the meanings assigned to them in the TIA or such statute or rule
as in force on the date of execution of this Indenture.
Section 1.03. For purposes of this Indenture, the
following terms have the following meanings.
Accrued Interest:
The term "Accrued Interest" at any Interest Payment
Date (a) for a Floating Rate Note shall mean the amount obtained
by multiplying the principal amount of such Floating Rate Note by
its Accrued Interest Factor, and (b) for a Fixed Rate Note, shall
mean the amount obtained by multiplying the principal amount of
such Fixed Rate Note by its Interest Rate, and multiplying the
product thus obtained by a fraction, the numerator of which is
the number of days in the Interest Payment Period for such Note
ended on such Interest Payment Date, and the denominator of which
is 360.
Accrued Interest Factor:
The term "Accrued Interest Factor" at any Interest
Payment Date for a Floating Rate Note shall mean the sum of the
Interest Factors for such Floating Rate Note calculated for each
day in the Interest Payment Period for such Note ended on such
Interest Payment Date or the prior Record Date, as the case may
be.
Authenticating Agent:
The term "Authenticating Agent" shall mean the agent of
the Trustee which shall be appointed and acting pursuant to
Section 9.15.
Authorized Agent:
The term "Authorized Agent" shall mean an agent of the
Company designated by an Officers' Certificate to give to the
Trustee the information specified in clause (a) of "Company
Order" for the issuance of a Note.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper
of general circulation in the relevant area, printed in the
English language and customarily published on each Business Day;
whenever successive publications in an Authorized Newspaper are
required by this Indenture, such publications may be made on the
same or different days and in the same or in different Authorized
Newspapers.
Base Rate:
The term "Base Rate" shall mean with respect to (a)
Commercial Paper Rate Notes, the Commercial Paper Rate, (b) LIBOR
Notes, LIBOR and (c) Treasury Rate Notes, the Treasury Rate.
Basis Point:
The term "Basis Point" shall mean one-one hundredth of
a percentage point.
Board of Directors:
The term "Board of Directors" shall mean the Board of
Directors of the Company or the Executive Committee of such Board
or any other duly authorized Committee of such Board.
Board Resolution:
The term "Board Resolution" shall mean a copy of a
resolution certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board of Direc-
tors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
Business Day:
The term "Business Day" shall mean each Monday, Tues-
day, Wednesday, Thursday and Friday which is not a day on which
banking institutions or trust companies in the Borough of Manhat-
tan, the City and State of New York, are obligated or authorized
by law or executive order to close.
Calculation Agent:
The term "Calculation Agent" for a particular Floating
Rate Note shall mean the Trustee, unless otherwise provided for
in the applicable Company Order.
Calculation Date:
The term "Calculation Date" shall mean with regard to
any particular Interest Determination Date, the tenth calendar
day after such Interest Determination Date, or, if any such day
is not a Business Day, the next succeeding Business Day.
Commercial Paper Rate:
The term "Commercial Paper Rate" for a particular
Floating Rate Note, unless otherwise indicated in the applicable
Company Order, shall mean, with respect to any Commercial Paper
Rate Interest Determination Date, the Money Market Yield on such
date of the rate for commercial paper having the Index Maturity
specified in such Company Order, as such rate shall be published
in H.15(519) under the heading "Commercial Paper". In the event
that such rate is not published prior to 3:00 P.M., New York City
time, on the Calculation Date pertaining to such Commercial Paper
Rate Interest Determination Date, then the Commercial Paper Rate
shall be the Money Market Yield on such Commercial Paper Rate In-
terest Determination Date of the rate for commercial paper of the
specified Index Maturity as published in Composite Quotations
under the heading "Commercial Paper". If by 3:00 P.M., New York
City time, on such Calculation Date such rate is not published in
either H.15(519) or Composite Quotations, then the Commercial Pa-
per Rate for such Commercial Paper Rate Interest Determination
Date shall be calculated by the Calculation Agent and shall be
the Money Market Yield of the arithmetic mean of the offered
rates as of 11:00 A.M., New York City time, on such Commercial
Paper Rate Interest Determination Date of three leading dealers
of commercial paper in The City of New York selected by the
Calculation Agent for commercial paper of the specified Index
Maturity placed for an industrial issuer whose bond rating is
"AA", or the equivalent, from a nationally recognized rating
agency; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as set forth
above, the Commercial Paper Rate will be the Commercial Paper
Rate in effect on such Commercial Paper Rate Interest Determina-
tion Date.
Commercial Paper Rate Interest Determination Date:
The term "Commercial Paper Rate Interest Determination
Date" for a Commercial Paper Rate Note shall mean the second
Business Day preceding its Interest Reset Date.
Commercial Paper Rate Notes:
The term "Commercial Paper Rate Notes" shall mean
Floating Rate Notes which are specified in the applicable Company
Order as having interest computed with reference to the Commer-
cial Paper Rate.
Company:
The term "Company" shall mean the corporation named as
the "Company" in the first paragraph of this Indenture, and its
successors and assigns.
Company Order:
The term "Company Order" shall mean:
(a) a written order signed in the name of the Company
by the Chairman of the Board, the President or any Vice President
and by the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee, to authenticate a Note and to make
it available for delivery, and specifying for such Note the
following information:
(1) the name of the Person in which a Note to be
issued and authenticated shall be registered;
(2) the address of such Person;
(3) the taxpayer identification number of such Person;
(4) the principal amount of such Note and, if multiple
Notes are to be issued to such Person, the denominations of
such Notes;
(5) the Original Issue Date of such Note;
(6) the date upon which such Note is scheduled to
mature;
(7) the Redemption Date and the price or prices at
which such Note is redeemable at the option of the Company;
(8) if the Note is a Fixed Rate Note, the rate of
interest on such Note and the Interest Payment Dates, if
other than May 1 and November 1;
(9) if the Note is a Floating Rate Note, its:
(A) Base Rate (G) Interest Reset Dates
(B) Index Maturity (H) Initial Interest Reset
(C) Interest Payment Dates Date
(D) Initial Interest Rate (I) Interest Payment Dates
(E) Maximum Interest Rate (J) Spread
(F) Minimum Interest Rate (K) Spread Multiplier
(10) all other information necessary for the issuance
of such Note; or
(b) confirmation given to the Trustee by an officer of
the Company designated by an Officers' Certificate, by telephone,
confirmed by telex or facsimile or similar writing, of the
information given to the Trustee by an Authorized Agent for the
issuance of a Note, and the written order of the Company to
authenticate such Note and to make it available for delivery.
Composite Quotations:
The term "Composite Quotations" shall mean the daily
statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" or any successor publication published by
the Federal Reserve Bank of New York.
Corporate Trust Office of the Trustee:
The term "corporate trust office of the Trustee," or
other similar term, shall mean the principal corporate trust
office of the Trustee in the Borough of Manhattan, the City and
State of New York, at which at any particular time its corporate
trust business shall be administered, which office is at the date
of the execution of this Indenture located at 101 Barclay Street,
21 W, New York, New York 10286.
CUSIP:
The term "CUSIP" shall mean the registered trademark
"Committee on Uniform Securities Identification Procedures" or
"CUSIP" and a unique system of identification of each public
issue of a security owned by the American Bankers Association and
administered by Standard and Poor's Corporation, as agent of the
American Bankers Association.
Depositary:
The term "Depositary" shall mean, unless otherwise
specified by the Company pursuant to Section 2.05 hereof, The
Depository Trust Company, New York, New York, or any successor
thereto registered and qualified under the Securities and Ex-
change Act of 1934, as amended, or other applicable statute or
regulation.
Discharged:
The term 'Discharged" shall have the meaning specified
in Section 5.01(c).
Event of Default:
The term "Event of Default" shall mean any event
specified in Section 8.01, continued for the period of time, if
any, and after the giving of the notice, if any, therein desig-
nated.
Fixed Rate Note:
The term "Fixed Rate Note" shall mean a Note which
bears interest at a fixed rate specified in the applicable
Company Order.
Floating Rate Note:
The term "Floating Rate Note" shall mean a Commercial
Paper Rate Note, a LIBOR Note or a Treasury Rate Note.
Global Note:
The term "Global Note" shall mean a single Note that
pursuant to Section 2.05 is issued to evidence Notes having
identical terms and provisions, which is delivered to the Deposi-
tary or pursuant to instructions of the Depositary and which
shall be registered in the name of the Depositary or its nominee.
H.15(519)
The term "H.15(519)" shall mean the publication
"Statistical Release H.15(519), Selected Interest Rates" or any
successor publication published by the Board of Governors of the
Federal Reserve System.
Indenture:
The term "Indenture" shall mean this instrument as
originally executed or, if amended or supplemented as herein
provided, as so amended or supplemented.
Index Maturity:
The term "Index Maturity" of a particular Floating Rate
Note shall mean the period to Maturity of the instrument or
obligation from which the Base Rate of such Floating Rate Note is
calculated, as specified in the applicable Company Order.
Initial Interest Rate:
The term "Initial Interest Rate" for a particular
Floating Rate Note shall mean the interest rate specified in the
applicable Company Order as in effect from the Original Issue
Date of such Floating Rate Note to its First Interest Reset Date.
Interest Accrual Period:
The term "Interest Accrual Period" for a particular
Floating Rate Note shall mean the period from the date of issue
of such Floating Rate Note, or from an Interest Reset Date, if
any, to its next subsequent Interest Reset Date.
Interest Determination Date:
The term "Interest Determination Date" shall mean each
Commercial Paper Rate Interest Determination Date, LIBOR Interest
Determination Date and Treasury Rate Interest Determination Date.
Interest Factor:
The term "Interest Factor" for a Floating Rate Note for
each day in an Interest Accrual Period for such Floating Rate
Note shall be computed by dividing the Interest Rate applicable
to such day by 360 in the case of Commercial Paper Rate Notes and
LIBOR Notes or by the actual number of days in the year in the
case of Treasury Rate Notes.
Interest Payment Date:
(a) The term "Interest Payment Date" shall mean with
respect to a Floating Rate Note which has an Interest Reset Date
which is (1) daily, weekly or monthly: the third Wednesday of
each month or the third Wednesday of March, June, September and
December of each year, as specified in the applicable Company
Order, (2) quarterly: the third Wednesday of March, June,
September and December of each year, (3) semiannually: the third
Wednesday of the two months of each year specified in the
applicable Company Order; (4) annually: the third Wednesday of
the month specified in the applicable Company Order and, in each
case, at Maturity. If any Interest Payment Date (other than at
Maturity) for any Floating Rate Note would fall on a day that is
not a Business Day with respect to such Floating Rate Note, such
Interest Payment Date will be the following day that is a
Business Day with respect to such Floating Rate Note, except
that, in the case of a LIBOR Note, if such Business Day is in the
next succeeding calendar month, such Interest Payment Date shall
be the immediately preceding day that is a Business Day with
respect to such LIBOR Note;
(b) the term "Interest Payment Date" shall mean with
respect to a Fixed Rate Note each May 1 and November 1, or such
other dates which are specified in the applicable Company Order
during the period such Fixed Rate Note is outstanding, the date
of Maturity of such Fixed Rate Note, and with respect to
defaulted interest on such Fixed Rate Note, the date established
by the Company for the payment of such defaulted interest.
Interest Payment Period:
The term "Interest Payment Period" shall mean for:
(a) each Floating Rate Note on which interest is reset
monthly, quarterly, semiannually or annually, and each Fixed
Rate Note, the period:
(1) beginning on and including the Original Issue
Date of such Note or the most recent Interest Payment
Date on which interest was paid on such Note, and
(2) ending on but not including the next Interest
Payment Date or, for the last Interest Payment Period,
Maturity, of such Note;
(b) each Floating Rate Note on which interest is reset
daily or weekly, the period:
(1) beginning on and including the Original Issue
Date of such Floating Rate Note, or beginning on but
excluding the most recent Record Date through which
interest was paid on such Note, and
(2) ending on and including the next Record Date
or, for the last Interest Payment Period, ending on but
excluding Maturity, of such Note;
provided, however, that the first Interest Payment Period for any
Note which has its Original Issue date after a Record Date and
prior to its next Interest Payment Date, shall begin on and
include such Original Issue Date and (i) end on and include the
next Record Date for Floating Rate Notes on which interest is
reset daily or weekly, and (ii) end on but not include the second
Interest Payment Date after the Original Issue Date for all other
Notes.
Interest Rate:
(a) The term "Interest Rate" for a particular Floating
Rate Note shall mean (1) from the date of issue of such Floating
Rate Note to the first Interest Reset Date for such Floating Rate
Note, the Initial Interest Rate, and (2) each Interest Accrual
Period commencing on or after such First Interest Reset Date, the
Base Rate with reference to the Index Maturity for such Floating
Rate Note as specified in the applicable Company Order plus or
minus the Spread, if any, multiplied by the Spread Multiplier, if
any; provided, in the event no Spread or Spread Multiplier is
provided in such Company Order, the Spread and Spread Multiplier
shall be zero and one, respectively; provided, further, in no
event shall the Interest Rate be greater than the Maximum
Interest Rate, if any, or less than the Minimum Interest Rate, if
any; and provided, further, the Interest Rate in effect for the
ten days immediately prior to Maturity will be the Interest Rate
in effect on the tenth day preceding such Maturity and provided,
further, the Interest Rate will in no event be higher than the
maximum rate permitted by applicable state law, as the same may
be modified by United States laws of general application.
(b) The term "Interest Rate" for a particular fixed
Rate Note shall mean the interest rate specified in the
applicable Company Order.
Interest Reset Date:
The term "Interest Reset Date" shall mean, in the case
of a Floating Rate Note specified in the applicable Company Order
as being reset (a) daily: each Business Day; (b) weekly: the
Wednesday of each week (with the exception of weekly reset
Treasury Rate Notes which reset the Tuesday of each week, except
as specified below); (c) monthly: the third Wednesday of each
month; (d) quarterly: the third Wednesday of March, June, Septem-
ber and December; (e) semiannually: the third Wednesday of the
two months specified in the applicable Company Order; and (f)
annually: the third Wednesday of the month specified in the
applicable Company Order. If any Interest Reset Date for a
Floating Rate Note would otherwise be a day which is not a Busi-
ness Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that in the case of
a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the next
preceding Business Day. If, in the case of a Treasury Rate Note,
an Interest Reset Date shall fall on a day on which the Treasury
auctions Treasury Bills, then such Interest Reset Date shall
instead be the first Business Day following such auction.
LIBOR:
The term "LIBOR" for a particular Floating Rate Note,
unless otherwise indicated in the applicable Company Order, shall
mean, with respect to any LIBOR Interest Determination Date, the
rate determined on the basis of the offered rates for deposits
(in United States dollars and in a principal amount equal to an
amount of not less than $1,000,000 that is representative for a
single transaction in such market at such time for the period of
the Index Maturity specified in the applicable Company Order),
commencing on the second London Banking Day immediately following
such LIBOR Interest Determination Date, which appears as of 11:00
A.M., London time, on the Reuters Screen LIBO Page on the Reuters
Monitor Rates Service on the LIBOR Interest Determination Date.
If at least two such offered rates appear on the Reuters Screen
LIBO Page, LIBOR for such LIBOR Interest Determination Date will
be the arithmetic mean (rounded, if necessary, to the nearest one
hundred-thousandth of a percent) of such offered rates as deter-
mined by the Calculation Agent. If fewer than two such offered
rates appear, the Calculation Agent shall request the principal
London office of four major banks in the London interbank market
selected by the Calculation Agent to provide the Calculation
Agent with a quotation of their offered rates for deposits (in
United States dollars for the period of the applicable Index
Maturity and in a principal amount equal to an amount of not less
than $1,000,000 that is representative for a single transaction
in such market at such time) at approximately 11:00 A.M., London
time, on such LIBOR Interest Determination Date commencing on the
second London Banking Day immediately following such LIBOR
Interest Determination Date. If at least two such quotations are
provided, LIBOR for such LIBOR Interest Determination Date will
equal the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR for such LIBOR Interest Determina-
tion Date will equal the arithmetic mean of the rates quoted by
three major banks in The City of New York, as selected by the
Calculation Agent, at approximately 11:00 A.M., New York City
time, on such LIBOR Interest Determination Date for loans to
leading European banks (in United States dollars for the period
of the applicable Index Maturity and in a principal amount equal
to an amount of not less than $1,000,000 that is representative
for a single transaction in such market at such time) commencing
on the second London Banking Day following such LIBOR Interest
Determination Date; provided, however, that if the banks selected
as aforesaid by the Calculation Agent are not quoting as set
forth above, LIBOR will be LIBOR in effect on such LIBOR Interest
Determination Date.
LIBOR Interest Determination Date:
The term "LIBOR Interest Determination Date" for a
LIBOR Note shall mean the Second London Banking Day preceding its
Interest Reset Date.
LIBOR Notes:
The term "LIBOR Notes" shall mean Floating Rate Notes
which are specified in the applicable Company Order as having
interest computed with reference to LIBOR.
London Banking Day:
The term "London Banking Day" shall mean any day on
which dealings in deposits in U.S. dollars are transacted in the
London interbank market.
Maturity:
The term "Maturity", when used with respect to any
Note, shall mean the date on which the principal of such Note
becomes due and payable as therein or herein provided, whether at
the stated maturity thereof or by declaration of acceleration,
call for redemption or otherwise.
Maximum Interest Rate:
The term "Maximum Interest Rate" shall mean the maximum
rate of interest, if any, which may accrue to any Floating Rate
Note during any Interest Accrual Period as specified in the
applicable Company Order.
Minimum Interest Rate:
The term "Minimum Interest Rate" shall mean the minimum
rate of interest, if any, which may be applicable to any Floating
Rate Note during any Interest Accrual Period as specified in the
applicable Company Order.
Money Market Yield
The term "Money Market Yield" shall be the yield (ex-
pressed as a percentage) calculated in accordance with the
following formula:
Money Market Yield = D x 360
------------ x 100
360-(D x M)
where "D" refers to the applicable per annum rate for commercial
paper quoted on a bank discount basis and expressed as a decimal,
and "M" refers to the actual number of days in the Interest
Accrual Period for which interest is being calculated.
Mortgage:
The term "Mortgage" shall mean the General Mortgage
Indenture and Deed of Trust dated as of December 1, 1986, from
the Company to United Missouri Bank of Kansas City, N.A., as
trustee, as from time to time supplemented and amended, including
but not limited to the Mortgage Supplemental Indenture.
Mortgage Bonds:
The term "Mortgage Bonds" shall mean the Company's
mortgage bonds issued under the Mortgage.
Mortgage Supplemental Indenture:
The term "Mortgage Supplemental Indenture" shall mean
the Tenth Supplemental Indenture dated as of November 1, 1994,
which supplements the Mortgage.
Mortgage Trustee:
The term "Mortgage Trustee" shall mean the trustee at
the time serving as such under the Mortgage.
Note or Notes; Outstanding:
The terms "Note or "Notes" shall mean any Fixed Rate or
Floating Rate Note or Notes, as the case may be, authenticated
and delivered under this Indenture, including any Global Note.
The term "outstanding," when used with reference to
Notes, shall, subject to Section 10.04, mean, as of any particu-
lar time, all Notes authenticated and delivered by the Trustee
under this Indenture, except
(a) Notes theretofore cancelled by the Company or
delivered to the Company for cancellation;
(b) Notes, or portions thereof, for the payment
or redemption of which moneys in the necessary amount
shall have been deposited in trust with the Trustee or
with any paying agent (other than the Company) or shall
have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying
agent), provided that if such Notes are to be redeemed
prior to the maturity thereof, notice of such redemp-
tion shall have been given as provided in
Article Three, or provisions satisfactory to the Trust-
ee shall have been made for giving such notice;
(c) Notes, or portions thereof, which shall have
been Discharged; and
(d) Notes in lieu of or in substitution for which
other Notes shall have been authenticated and deliv-
ered, or which have been paid, pursuant to
Section 2.07.
Noteholder:
The terms "Noteholder" or "holder of Notes" shall mean
any Person in whose name at the time a particular Note is regis-
tered on the books of the Company kept for that purpose in accor-
dance with the terms hereof.
Officers' Certificate:
The term "Officers' Certificate" when used with respect
to the Company, shall mean a certificate signed by the Chairman
of the Board, the President or any Vice President and by the
Secretary or an Assistant Secretary of the Company. Each such
certificate shall include the statements provided for in Sec-
tion 15.05 if and to the extent required by such Section.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in
writing signed by legal counsel, who may be an employee of the
Company, or such other counsel who is satisfactory to the
Trustee. Each such opinion shall include the statements provided
for in Section 15.05 if and to the extent required by such Sec-
tion. In the event that the Indenture requires the delivery of
an Opinion of Counsel to the Trustee, the text and substance of
which has been previously delivered to the Trustee, the Company
may satisfy such requirement by the delivery by the legal counsel
that delivered such previous Opinion of Counsel of a letter to
the Trustee to the effect that the Trustee may rely on such
previous Opinion of Counsel as if such Opinion of Counsel was
dated and delivered the date delivery of such Opinion of Counsel
is required.
Original Issue Date:
The term "Original Issue Date" shall mean for a
particular Note, or portions thereof, the date upon which it, or
such portion, was issued by the Company pursuant to this
Indenture and authenticated by the Trustee (other than in
connection with a transfer, exchange or substitution).
Person:
The term "Person" shall mean any individual, corpora-
tion, partnership, joint venture, association, joint-stock compa-
ny, trust, unincorporated organization or government or any
agency or political subdivision thereof.
Pledged Bond:
The term "Pledged Bond" shall mean the Mortgage Bond,
Medium-Term Series E, in the form attached hereto as Exhibit A,
issued by the Company pursuant to the Mortgage Supplemental
Indenture.
Principal Executive Offices of the Company:
The term "principal executive offices of the Company"
shall mean the place where the main corporate offices of the
Company are located, currently 1201 Walnut, Kansas City,
Missouri 64106, or such other place where the main corporate
offices of the Company are located as designated in an Officer's
Certificate delivered to the Trustee.
Record Date:
The term "Record Date" shall mean for the Interest
Payment Date for the payment of interest for an Interest Payment
Period for a particular Note (a) the day which is fifteen
calendar days prior to such Interest Payment Date, whether or not
such day is a Business Day, (b) the date of Maturity of such
Note, unless such date of Maturity for a Fixed Rate Note is a May
1 or a November 1, in which event the Record Date will be as
provided in clause (a), and (c) a date which is not less than
five Business Days preceding the Interest Payment Date of
defaulted interest on such Note established by notice given by
first-class mail by or on behalf of the Company to the holder of
such Note not less than fifteen days prior to such Interest
Payment Date.
Redemption Date:
The term "Redemption Date" for a Note shall mean the
date on or after which such Note is redeemable at the option of
the Company.
Responsible Officer:
The term "responsible officer" or "responsible offi-
cers" when used with respect to the Trustee shall mean one or
more of the following: the chairman of the board of directors,
the vice chairman of the board of directors, the chairman of the
executive committee, the president, any vice president, the
cashier, the secretary, the treasurer, any trust officer, any
assistant trust officer, any second or assistant vice president,
any assistant cashier, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those per-
formed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the
particular subject.
Spread:
The term "Spread" applicable to a particular Floating
Rate Note shall mean the number of Basis Points above or below
the Base Rate for such Floating Rate Note as specified in the
applicable Company Order.
Spread Multiplier:
The term "Spread Multiplier" applicable to a particular
Floating Rate Note shall mean the percentage of the Base Rate
applicable to the Interest Rate for such Floating Rate Note as
specified in the applicable Company Order.
Treasury:
The term "Treasury" shall mean the United States De-
partment of Treasury.
Treasury Bills:
The term "Treasury Bills" shall mean direct obligations
of the United States.
Treasury Rate:
The term "Treasury Rate" for a particular Floating Rate
Note, unless otherwise indicated in the Applicable Company Order,
shall mean with respect to any Treasury Rate Interest Determina-
tion Date, the rate applicable to the most recent auction of
Treasury Bills having the Index Maturity specified in the appli-
cable Company Order, as such rate is published in H.15(519) under
the heading "Treasury bills-auction average (investment)" or, if
not so published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Treasury Rate Interest Deter-
mination Date, the auction average rate (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applica-
ble, and applied on a daily basis) as otherwise announced by the
Treasury. In the event that the results of the auction of Trea-
sury Bills having the specified Index Maturity are not reported
as provided by 3:00 P.M., New York City time, on such Calculation
Date, or if no such auction is held in a particular week, then
the Treasury Rate shall be calculated by the Calculation Agent
and shall be a yield to maturity (expressed as a bond equivalent
on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary
market bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Rate Interest Determination Date, of three
leading primary United States government securities dealers
selected by the Calculation Agent, for the issue of Treasury
Bills with a remaining maturity closest to the applicable Index
Maturity; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as set forth
above, the Treasury Rate will be the Treasury Rate in effect on
such Treasury Rate Interest Determination Date.
Treasury Rate Interest Determination Date:
The term "Treasury Rate Interest Determination Date"
for a Treasury Rate Note shall mean the day of the week in which
its Interest Reset Date falls on which Treasury Bills normally
would be auctioned, provided, however, that if as a result of a
legal holiday an auction is held on the Friday of the week
preceding such Interest Reset Date, the related Treasury Rate
Interest Determination Date shall be the preceding Friday.
Treasury Rate Notes:
The term "Treasury Rate Notes" shall mean Floating Rate
Notes which are specified in the applicable Company Order as
having interest computed with reference to the Treasury Rate.
Trustee:
The term "Trustee" shall mean The Bank of New York and,
subject to Article Nine, shall also include any successor Trust-
ee.
U.S. Government Obligations:
The term "U.S. Government Obligations" shall mean (a)
direct non-callable obligations of, or non-callable obligations
guaranteed as to timely payment of principal and interest by, the
United States of America or an agency thereof for the payment of
which obligations or guarantee the full faith and credit of the
United States is pledged or (b) certificates or receipts repre-
senting direct ownership interests in obligations or specified
portions (such as principal or interest) of obligations described
in (a) above, which obligations are held by a custodian in safe-
keeping on behalf of such certificates or receipts.
ARTICLE TWO.
Form, Issue, Execution, Registration And Exchange Of
Notes.
Section 2.01. Form Generally.
(a) The Notes shall be titled "Secured Medium-Term
Notes", and, if such Notes shall be in the form of (a) a Fixed
Rate Note which is a Global Note, shall be in substantially the
form set forth in Exhibit B, (b) a Fixed Rate Note which is not a
Global Note, shall be in substantially the form set forth in
Exhibit C, (c) a Floating Rate Note which is a Global Note, shall
be in substantially the form set forth in Exhibit D, and (d) a
Floating Rate Note which is not a Global Note, shall be in
substantially the form set forth in Exhibit E, to this Indenture,
or in any such case such other form as shall be established by a
Board Resolution, or an Officers' Certificate pursuant to a Board
Resolution, or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitu-
tions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities ex-
change or with applicable law or as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced
by their execution of such Notes. If the form of Notes is estab-
lished by a Board Resolution, or an Officers' Certificate pursu-
ant to a Board Resolution, a copy of such Board Resolution or
Officer's Certificate shall be delivered to the Trustee at or
prior to the delivery to the Trustee of the Company Order contem-
plated by Section 2.05 for the authentication and delivery of
such Notes.
(b) The definitive Notes shall be printed,
lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers
executing such Notes, as evidenced by their execution of such
Notes.
Section 2.02. Form of Trustee's Certificate of Authen-
tication. The Trustee's certificate of authentication on all
Notes shall be in substantially the following form:
Trustee's Certificate of Authentication
This is one of the Notes designated therein referred to
in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By __________________________
Authorized Signatory
Section 2.03. Amount Limited. The aggregate principal
amount of Notes which may be authenticated and delivered under
this Indenture is limited to $125,000,000, or such lesser amount
as may from time to time be established by an Officers' Certifi-
cate delivered to the Trustee.
Section 2.04. Denominations, Dates, Interest Payment
and Record Dates.
(a) The Notes shall be issuable in registered form
without coupons in denominations of $1,000 and integral multiples
of $1,000 in excess thereof.
(b) Each Note shall be dated and issued as of the date
of its authentication by the Trustee, and shall bear an Original
Issue Date or, as provided in Section 2.12(e), two or more Origi-
nal Issue Dates; each Note issued upon transfer, exchange or
substitution of a Note shall bear the Original Issue Date or
Dates of such transferred, exchanged or substituted Note, subject
to Section 2.12(e).
(c) Each Note shall bear interest, if any, at its
Interest Rate during each Interest Payment Period for such Note,
from the later of (1) its Original Issue Date (or, if pursuant to
Section 2.12, a Global Note has two or more Original Issue Dates,
interest shall, beginning on each such Original Issue Date, begin
to accrue for that part of the principal amount of such Global
Note to which that Original Issue Date is applicable), or (2) the
most recent date to which any interest has been paid or duly
provided for until the principal of such Note is paid or made
available for payment, and Accrued Interest on each Note shall be
payable for each Interest Payment Period on the Interest Payment
Date immediately subsequent to the Record Date for the payment of
interest for such Interest Payment Period.
(d) All percentages resulting from any calculation of
the Interest Rate for a Floating Rate Note shall be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded
upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655%
(or .0987655)), and all dollar amounts used in or resulting from
such calculation shall be rounded to the nearest cent (with one-
half cent being rounded upward).
(e) Each Note shall mature on a date specified in such
Note not less than nine months nor more than 30 years after its
Original Issue Date, and the principal amount of each outstanding
Note shall be payable on the maturity date specified therein.
(f) The Person in whose name any Note is registered at
the close of business on any Record Date with respect to an
Interest Payment Date for such Note shall be entitled to receive
the Accrued Interest payable on such Note on such Interest
Payment Date notwithstanding the cancellation of such Note upon
any registration of transfer, exchange or substitution of such
Note subsequent to such Record Date and prior to such Interest
Payment Date.
(g) The Company shall cause the Calculation Agent to
calculate each Interest Rate applicable to each Floating Rate
Note in accordance with this Indenture, and the Company shall, or
shall cause the Calculation Agent to, notify the Trustee of each
determination of such Interest Rate promptly after such
determination.
(h) On the fifth Business Day immediately preceding
each Interest Payment Date, the Trustee shall furnish to the
Company a notice setting forth the total amount of the Accrued
Interest payments to be made on such Interest Payment Date and to
the Depositary, a notice setting forth the total amount of
Accrued Interest payments to be made on Global Notes on such
Interest Payment Date. The Trustee will provide monthly to the
Company a list of the principal of and any premium and Accrued
Interest to be paid on Notes in the next succeeding month and to
the Depositary a list of the principal of and any premium and
Accrued Interest to be paid on Global Notes in the such
succeeding month. Promptly after the first Business Day of each
month, the Trustee shall furnish to the Company a written notice
setting forth the aggregate principal amount of the Global Notes.
The Company will provide to the Trustee not later than the
payment date sufficient moneys to pay in full all principal of
and any premium and Accrued Interest payments due on such payment
date. The Trustee shall assume responsibility for withholding
taxes on interest paid as required by law.
(i) Upon the request of any Noteholder of a Floating
Rate Note, the Trustee shall provide to such Noteholder the
Interest Rate then in effect and, if determined, the Interest
Rate that will become effective on the next Interest Reset Date,
with respect to such Floating Rate Note.
Section 2.05. Execution, Authentication, Delivery and
Dating.
(a) The Notes shall be executed on behalf of the
Company by the Chairman of the Board, the President or any Vice
President under its corporate seal (which may be in the form of a
facsimile thereof and may be printed, engraved or otherwise
reproduced thereon) attested by the Secretary or an Assistant
Secretary. The signature of any of such officers on any Notes
may be manual or facsimile.
(b) Notes bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) At any time and from time to time after the execu-
tion and delivery of this Indenture, the Company may deliver
Notes executed by the Company to the Trustee for authentication,
together with one or more Company Orders for the authentication
and delivery of such Notes, and the Trustee in accordance with
any such Company Order shall authenticate such Notes and make
them available for delivery. Prior to authenticating such Notes,
and in accepting the additional responsibilities under this
Indenture in relation to such Notes, the Trustee shall be
entitled to receive the following only at or before the first
issuance of Notes, and (subject to Section 9.01) shall be fully
protected in relying upon:
(1) a Board Resolution authorizing this Indenture
and the Notes, and if applicable, an appropriate record
of any action taken pursuant to such Board Resolution,
certified by the Secretary or an Assistant Secretary of
the Company;
(2) an Officers' Certificate designating one or
more Authorized Agents and officers of the Company who
are authorized to give Company Orders for the issuance
of, and specifying terms of, Notes and, if appropriate,
setting forth the form of Notes in accordance with
Section 2.01;
(3) an Opinion of Counsel stating,
(A) if the form of Notes has been
established by or pursuant to a Board
Resolution or, an Officers' Certificate
pursuant to a Board Resolution, or in a
supplemental indenture as permitted by
Section 2.01, that such form has been
established in conformity with this
Indenture;
(B) that the Indenture has been duly
authorized, executed and delivered by the
Company and constitutes a valid and legally
binding agreement of the Company, enforceable
in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and
other laws of general applicability relating
to or affecting the enforcement of creditors'
rights and to general equity principles;
(C) that the Indenture and the Mortgage
Indenture are qualified under the TIA;
(D) that the issuance of the Pledged
Bond has been duly authorized, the Pledged
Bond has been duly authorized, executed and
delivered and the Pledged Bond is a legal,
valid and a legally binding obligation of the
Company enforceable in accordance with its
terms and entitled to the benefits of the
Mortgage Indenture, subject to bankruptcy,
insolvency, reorganization and other laws of
general applicability relating to or
affecting the enforcement of creditors'
rights and to general equity principles;
(E) that any supplemental indenture
referred to in (A) above has been duly
authorized, executed and delivered by the
Company and constitutes a legal, valid and
legally binding agreement of the Company,
enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorgani-
zation and other laws of general
applicability relating to or affecting the
enforcement of creditors' rights and to
general equity principles;
(F) that the Notes, when authenticated
and delivered by the Trustee and issued by
the Company in the manner and subject to any
conditions specified in such Opinion of
Counsel, will constitute legal, valid and
legally binding obligations of the Company,
enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorgani-
zation and other laws of general applicabil-
ity relating to or affecting the enforcement
of creditors' rights and to general equity
principles;
(G) that all laws and requirements in
respect of the execution, delivery and sale
by the Company of the Notes have been
complied with;
(H) that the Company is not in default
in any of its obligations under this
Indenture or the Mortgage Indenture, and that
the issuance of the Notes will not result in
any such default; and
(I) such other matters as the Trustee
may reasonably request.
(4) the Pledged Bond; and
(5) the Opinion of Counsel required by Section
6.05(a).
(d) The Trustee shall have the right to decline to
authenticate and deliver any Note:
(1) if the issuance of such Note pursuant to this
Indenture will affect the Trustee's own rights, duties
or immunities under the Notes and this Indenture or
otherwise in a manner which is not reasonably
acceptable to the Trustee;
(2) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken;
or
(3) if the Trustee in good faith by its Board of
Directors, executive committee or a trust committee of
directors and/or responsible officers in good faith
determines that such action would expose the Trustee to
personal liability to holders of any outstanding Notes.
(e) No Note shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture, provided, however,
that if any Note shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the
Company shall deliver such Note to the Trustee for cancellation
as provided in Section 2.09, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits
of this Indenture.
Section 2.06. Exchange and Registration of Transfer of
Notes.
(a) Subject to Section 2.12, Notes may be exchanged
for one or more new Notes, of any authorized denominations and of
a like aggregate principal amount and stated maturity and having
the same terms and Original Issue Date or Dates. Notes to be
exchanged shall be surrendered at any of the offices or agencies
to be maintained by the Company for such purpose as provided in
Section 6.02, and the Company shall execute and register and the
Trustee shall authenticate and deliver in exchange therefor the
Note or Notes which the Noteholder making the exchange shall be
entitled to receive.
(b) The Trustee on behalf of the Company shall keep, at
one of said offices or agencies, a register in which, subject to
such reasonable regulations as it or the Company may prescribe,
the Trustee shall register or cause to be registered Notes and
shall register or cause to be registered the transfer of Notes as
in this Article Two provided. Such register shall be in written
form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times such
register shall be open for inspection by the Trustee. Upon due
presentment for registration of transfer of any Note at any such
office or agency, the Company shall execute and register or cause
to be registered and the Trustee shall authenticate and make
available for delivery, in the name of the transferee or trans-
ferees, one or more new Notes, of any authorized denominations
and of a like aggregate principal amount and stated maturity and
having the same terms and Original Issue Date or Dates.
(c) All Notes presented for registration of transfer
or for exchange, redemption or payment shall (if so required by
the Company) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or the
attorney of such holder duly authorized in writing.
(d) No service charge shall be made for any exchange
or registration of transfer of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
(e) The Company shall not be required to exchange or
register a transfer of any Notes selected, called or being called
for redemption except, in the case of any Note to be redeemed in
part, the portion thereof not to be so redeemed.
(f) If the principal amount and any applicable premium
or part, but not all of a Global Note is paid, then upon
surrender to the Trustee of such Global Note, the Company shall
execute, and the Trustee shall authenticate, and make available
for delivery, a Global Note in an authorized denomination in
aggregate principal amount equal to, and having the same terms
and Original Issue Date or Dates as, the unpaid portion of such
Global Note.
Section 2.07. Mutilated, Destroyed, Lost or Stolen
Notes.
(a) In case any temporary or definitive Note shall
become mutilated or be destroyed, lost or stolen, the Company in
its discretion may execute, and upon its request the Trustee
shall authenticate and deliver, a new Note of like form and
principal amount and having the same terms and Original Issue
Date or Dates and bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note,
or in lieu of and in substitution for the Note so destroyed, lost
or stolen. In every case the applicant for a substituted Note
shall furnish to the Company, the Trustee, any Authenticating
Agent or Note registrar such security or indemnity as may be
required by them to save each of them harmless, and, in every
case of destruction, loss or theft of a Note, the applicant shall
also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Note and
of the ownership thereof.
(b) The Trustee may authenticate any such substituted
Note and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance
of any substituted Note, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
connected therewith. In case any Note which has matured or is
about to mature shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substituted Note,
pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Note) if the applicant
for such payment shall furnish to the Company, the Trustee, any
Authenticating Agent or Note registrar such security or indemnity
as may be required by them to save each of them harmless and, in
case of destruction, loss or theft, evidence satisfactory to the
Company and the Trustee of the destruction, loss or theft of such
Note and of the ownership thereof.
(c) Every substituted Note issued pursuant to this
Section 2.07 by virtue of the fact that any Note is destroyed,
lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not such destroyed, lost or
stolen Note shall be found at any time, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder. All Notes
shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes and shall preclude any and all
other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.08. Temporary Notes. Pending the
preparation of definitive Notes, the Company may execute and the
Trustee shall authenticate and make available for delivery,
temporary Notes (printed, lithographed or otherwise reproduced).
Temporary Notes shall be issuable in any authorized denomination
and substantially in the form of the definitive Notes but with
such omissions, insertions and variations as may be appropriate
for temporary Notes, all as may be determined by the Company.
Every such temporary Note shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner,
and with the same effect, as the definitive Notes. Without
unreasonable delay the Company will execute and register and will
deliver to the Trustee definitive Notes and thereupon any or all
temporary Notes may be surrendered in exchange therefor, at the
Corporate Trust Office of the Trustee, and the Trustee shall
authenticate and deliver in exchange for such temporary Notes an
equal aggregate principal amount of definitive Notes. Such
exchange shall be made by the Company at its own expense and
without any charge therefor to the Noteholders. Until so
exchanged, the temporary Notes shall in all respects be entitled
to the same benefits under this Indenture as definitive Notes
authenticated and made available for delivery hereunder.
Section 2.09. Cancellation of Notes Paid, etc. All
Notes surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall be surrendered to the
Trustee for cancellation and promptly cancelled by it and no
Notes shall be issued in lieu thereof except as expressly
permitted by this Indenture. All Notes so cancelled shall be
retained by the Trustee. If the Company shall acquire any of the
Notes, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by
such Notes unless and until the same are cancelled by the
Trustee.
Section 2.10. Interest Rights Preserved. Each Note
delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Note shall carry all the rights to
unpaid Accrued Interest, and interest to accrue, which were
carried by such other Note, and each such Note shall be so dated
that neither gain nor loss of interest shall result from such
transfer, exchange or substitution.
Section 2.11. Payment of Notes. The principal of and
any premium and Accrued Interest on all Notes shall be payable as
follows:
(a) On or before 10:00 a.m., New York City time, of
the day on which payment of principal, Accrued Interest and
premium is due on any Global Note pursuant to the terms thereof,
the Company shall deliver to the Trustee immediately available
funds sufficient to make such payment. On or before 10:30 a.m.,
New York City time or such other time as shall be agreed upon
between the Trustee and the Depositary, of the day on which such
payment is due, the Trustee shall deposit with the Depositary
such funds by wire transfer into the account specified by the
Depositary. As a condition to the payment at the Maturity of any
part of the principal and applicable premium of any Global Note,
the Depositary shall surrender, or cause to be surrendered, such
Global Note to the Trustee, whereupon a new Global Note shall be
issued to the Depositary pursuant to Section 3.03(d).
(b) With respect to any Note that is not a Global
Note, principal, any premium and Accrued Interest due at the
Maturity of such Note shall be payable in immediately available
funds when due upon presentation and surrender of such Note at
the Corporate Trust Office of the Trustee. Accrued Interest on
any Note that is not a Global Note (other than Accrued Interest
payable at the maturity date) shall be paid in a clearinghouse
funds check mailed on the Interest Payment Date; provided,
however, that if any holder of Notes, the aggregate principal
amount of which equals or exceeds $10,000,000, provides a written
request to the Trustee on or before the applicable Record Date
for such Interest Payment Date, Accrued Interest on such
principal amount shall be paid by wire transfer of immediately
available funds to a bank within the continental United States or
by direct deposit into the account of such holder if such account
is maintained with the Trustee.
Section 2.12. Notes Issuable in the Form of a Global
Note.
(a) If the Company shall establish pursuant to Section
2.05 that the Notes of a particular series are to be issued in
whole or in part in the form of one or more Global Notes, then
the Company shall execute and the Trustee shall, in accordance
with Section 2.05 and the Company Order delivered to the Trustee
thereunder, authenticate and make available for delivery, such
Global Note or Notes, which (1) shall represent, shall be
denominated in an amount equal to the aggregate principal amount
of, and shall have the same terms as, the outstanding Notes to be
represented by such Global Note or Notes, (2) shall be registered
in the name of the Depositary or its nominee, (3) shall be
delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction and (4) shall bear a legend
substantially to the following effect: "Unless and until it is
exchanged in whole or in part for the individual Notes
represented hereby, this Global Note 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
such nominee to a successor Depositary or a nominee of such
successor Depositary."
(b) Notwithstanding any other provision of Section
2.06 or of this Section 2.12, unless the terms of a Global Note
expressly permit such Global Note to be exchanged in whole or in
part for individual Notes, a Global Note may be transferred, in
whole but not in part, only to a nominee of the Depositary, or by
a nominee of the Depositary to the Depositary, or to a successor
Depositary for such Global Note selected or approved by the
Company or to a nominee of such successor Depositary.
(c) (1) If at any time the Depositary for a Global
Note notifies the Company that such Depositary is unwilling or
unable to continue as Depositary for such Global Note or if at
any time the Depositary for a Global Note shall no longer be
eligible or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to such
Global Note. If a successor Depositary for such Global Note is
not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 2.05(c)(6) shall no longer
be effective with respect to such Global Note and the Company
shall execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual Notes of such
series in exchange for such Global Note, shall authenticate and
make available for delivery, individual Notes of such series of
like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Note in
exchange for such Global Note. The Trustee shall not be charged
with knowledge of notice of the ineligibility of a Depositary
unless a responsible officer assigned to and working in its
corporate trustee administration department shall have actual
knowledge thereof.
(2) The Company may at any time and in its sole
discretion determine that all outstanding (but not less than all)
the Notes issued or issuable in the form of one or more Global
Notes shall no longer be represented by such Global Note or
Notes. In such event the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and
delivery of individual Notes in exchange for such Global Note,
shall authenticate and make available for delivery, individual
Notes of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such Global
Note or Notes in exchange for such Global Note or Notes.
(3) If agreed upon by the Company and the
Depositary with respect to Notes issued in the form of a Global
Note, the Depositary for such Global Note shall surrender such
Global Note in exchange in whole or in part for individual Notes
of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depositary. Thereupon the
Company shall execute, and the Trustee shall authenticate and
make available for delivery, without a service charge, (A) to
each Person specified by the Depositary, a new Note or Notes of
like tenor and terms, and of any authorized denomination as
requested by such Person, in aggregate principal amount equal to
and in exchange for the beneficial interest of such Person in
such Global Note; and (B) to such Depositary a new Global Note of
like tenor and terms and in a denomination equal to the
difference, if any, between the principal amount of the
surrendered Global Note and the aggregate principal amount of
Notes delivered to Holders thereof.
(4) In any exchange provided for in Section
2.12(c)(1),(2) or (3), the Company will execute and the Trustee
will authenticate and make available for delivery, individual
Notes in definitive registered form in authorized denominations.
Upon the exchange of a Global Note for individual Notes, such
Global Note shall be cancelled by the Trustee. Notes issued in
exchange for a Global Note pursuant to this Section 2.12 shall be
registered in such names and in such authorized denominations as
the Depositary for such Global Note, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Notes to
the Depositary for delivery to the Persons in whose names such
Notes are so registered, or if the Depositary shall refuse or be
unable to deliver such Notes, the Trustee shall deliver such
Notes to the Persons in whose names such Notes are registered,
unless otherwise agreed upon by the Trustee and the Company.
(d) Neither the Company, the Trustee or any
Authenticating Agent will have any responsibility or liability
for any aspect of the records relating to, or payments made on
account of, beneficial ownership interests in a Global Note or
for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
(e) Pursuant to the provisions of this subsection, at
the option of the Trustee and upon thirty days' written notice to
the Depositary, the Depositary shall be required to surrender any
two or more Global Notes which have identical terms, including,
without limitation, identical maturities, interest rates and
redemption provisions (but which may have differing Original
Issue Dates) to the Trustee, and the Company shall execute and
the Trustee shall authenticate and deliver to, or at the
direction of, the Depositary a Global Note in principal amount
equal to the aggregate principal amount of, and with all terms
identical to, the Global Notes so surrendered to the Trustee, and
such new Global Note shall indicate each applicable Original
Issue Date and the principal amount applicable to each such
Original Issue Date. The exchange contemplated in this
subsection shall be consummated at least 30 days prior to any
Interest Payment Date applicable to any of the Global Notes so
surrendered to the Trustee. Upon any exchange of any Global Note
with two or more original Issue Dates, whether pursuant to this
Section or pursuant to Section 2.06 or Section 3.03, the
aggregate principal amount of the Notes with a particular
Original Issue Date shall be the same before and after such
exchange, giving effect to any retirement of Notes and the
Original Issue Dates applicable to such Notes occurring in
connection with such exchange.
Section 2.13. CUSIP Numbers. The Company in issuing
Notes may use CUSIP numbers (if then generally in use), and, if
so, the Trustee shall use CUSIP numbers in notices of redemption
Notes as a convenience to Noteholders, provided, that any such
notice may state that no representation is made as to the
correctness of such CUSIP numbers either as printed on the Notes
or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any
defect in or omission of such numbers.
ARTICLE THREE.
Redemption of Notes
Section 3.01. Applicability of Article. The
provisions of this Article Three shall be applicable to any Notes
which are redeemable prior to their stated maturity date.
Section 3.02. Notice of Redemption; Selection of
Notes.
(a) The election of the Company to redeem any Notes
shall be evidenced by a Board Resolution which shall be given
with notice of redemption to the Trustee ten Business Days prior
to the giving of the notice of redemption to holders of such
Notes.
(b) Notice of redemption to each holder of Notes to be
redeemed as a whole or in part shall be given in the manner
provided in Section 15.10 no less than 30 nor more than 60 days
prior to the date fixed for redemption. Any notice which is
given in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Noteholder
receives the notice. In any case, failure duly to give such
notice, or any defect in such notice, to the holder of any Note
designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other
Note.
(c) Each such notice shall specify the date fixed for
redemption, the places of redemption and the redemption price at
which such Notes are to be redeemed, and shall state that payment
of the redemption price of such Notes or portion thereof to be
redeemed will be made on surrender of such Notes at such places
of redemption, that Accrued Interest to the date fixed for
redemption will be paid as specified in such notice, and that
from and after such date interest thereon will cease to accrue.
If less than all the Notes having the same terms are to be
redeemed, the notice shall specify the Notes or portions thereof
to be redeemed. In case any Note is to be redeemed in part only,
the notice which relates to such Note shall state the portion of
the principal amount thereof to be redeemed (which shall be
$1,000 or any integral multiple thereof), and shall state that,
upon surrender of such Note, a new Note or Notes having the same
terms in aggregate principal amount equal to the unredeemed
portion thereof will be issued.
(d) If less than all of the Notes having the same
terms are to be redeemed, the Trustee shall select in such manner
as it shall deem appropriate and fair in its discretion the
particular Notes to be redeemed as a whole or in part and shall
thereafter promptly notify the Company in writing of the Notes so
to be redeemed. Notes shall be redeemed only in denominations of
$1,000, provided, that any remaining principal amount of a Note
redeemed in part shall be at least $1,000.
(e) If at the time of the mailing of any notice of
redemption the Company shall not have irrevocably directed the
Trustee to apply funds deposited with the Trustee or held by it
and available to be used for the redemption of Notes to redeem
all the Notes called for redemption, such notice may state that
it is subject to the receipt of the redemption moneys by the
Trustee before the date fixed for redemption and that such notice
shall be of no effect unless such moneys are so received before
such date.
Section 3.03. Payment of Notes on Redemption; Deposit
of Redemption Price.
(a) If notice of redemption shall have been given as
provided in Section 3.02, such Notes or portions of Notes called
for redemption shall become due and payable on the date and at
the places stated in such notice at the applicable redemption
price, together with Accrued Interest to the date fixed for
redemption of such Notes, and on and after such date fixed for
redemption, provided that the Company shall have deposited with
the Trustee on such date of redemption the amount sufficient to
pay the redemption price together with Accrued Interest to the
date fixed for redemption. Interest on the Notes or portions
thereof so called for redemption shall cease to accrue and such
Notes or portions thereof shall be deemed not to be entitled to
any benefit under this Indenture except to receive payment of the
redemption price together with Accrued Interest thereon to the
date fixed for redemption. On presentation and surrender of such
Notes at such a place of payment in such notice specified, such
Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with
Accrued Interest thereon to the date fixed for redemption.
(b) The Company shall not mail any notice of
redemption of Notes during the continuance of any Event of
Default, except (1) that where notice of redemption of any Notes
has been mailed, the Company shall redeem such Notes provided
that funds have theretofore been deposited for such purpose, and
(2) that notices of redemption of all outstanding Notes may be
given during the continuance of an Event of Default.
(c) If any Note called for redemption shall not be so
paid upon surrender thereof for redemption, the principal of and
any premium on such Note, shall until paid bear interest from
the date set for redemption at the rate borne by such Note.
(d) Upon surrender of any Note redeemed in part only,
the Company shall execute and register, and the Trustee shall
authenticate and make available for delivery, a new Note or Notes
of authorized denominations in aggregate principal amount equal
to, and having the same terms and Original Issue Date or Dates
as, the unredeemed portion of the Note so surrendered.
ARTICLE FOUR
Pledged Bond.
Section 4.01. Pledge. The Company hereby delivers to
and pledges with the Trustee, for the benefit of the holders from
time to time of the Notes, the Pledged Bond, fully registered in
the name of the Trustee, in trust for the holders of the Notes as
security for (a) the full and prompt payment of the principal of
each Note when and as the same shall become due in accordance
with the terms and provisions of this Indenture, either at the
stated maturity thereof, upon acceleration of the maturity
thereof or upon call for redemption, and (b) the full and prompt
payment of any premium and interest on each Note when and as the
same shall become due in accordance with the terms and provisions
of this Indenture.
Section 4.02. Receipt. The Trustee acknowledges
receipt of the Pledged Bond, for the benefit of the holders from
time to time of the Notes.
Section 4.03. Trustee to Exercise Rights of Mortgage
Bondholder. As the holder of the Pledged Bond, the Trustee shall
have and exercise all of the rights of a holder of Mortgage Bonds
possessed under the Mortgage.
Section 4.04. No Transfer of Pledged Bond; Exception.
Except as required to effect an assignment to a successor trustee
under this Indenture, the Trustee shall not sell, assign or
transfer the Pledged Bond and the Company shall issue stop
transfer instructions to the Mortgage Trustee and any transfer
agent under the Mortgage to effect compliance with this Section
4.04.
Section 4.05. Release of Pledged Bond. When (a) all
of the principal of and any premium and interest on all Notes
shall have been paid or provision therefor duly made in
accordance with this Indenture, or (b) all Notes shall have been
delivered to the Trustee for cancellation by or on behalf of the
Company, or (c) no Note is any longer outstanding under this
Indenture and all conditions in Article Five have been satisfied,
the Trustee shall upon request of the Company, within five
Business Days thereafter, deliver to the Company without charge
the Pledged Bond, together with such appropriate instruments of
release as may be required; the Pledged Bond so acquired by the
Company shall be delivered to the Mortgage Trustee for
cancellation.
Section 4.06. Voting of Pledged Bond.
(a) The Trustee, as holder of the Pledged Bond, shall
attend meetings of Bondholders under the Mortgage and either at
such meeting, or otherwise when the consent of holders of
Mortgage Bonds is sought without a meeting, the Trustee shall
vote the outstanding principal amount of the Pledged Bond, or
shall consent with respect thereto, proportionally with respect
to all other Mortgage Bonds then outstanding and eligible to vote
or consent.
(b) Notwithstanding Section 4.06(a), the Trustee shall
not vote any portion of the outstanding principal amount of the
Pledged Bond in favor of, or give its consent to, any action
which, in the opinion of the Trustee, would materially adversely
affect the interests of the Noteholders, except with the
appropriate consent of the Noteholders.
Section 4.07. Note Issuances Recorded on Pledged Bond.
The Trustee shall record on the schedule to the Pledged Bond (a)
the Original Issue Date or Dates for each Note issued under this
Indenture, (b) the principal amount of each Note, (c) the
Interest Rate, if any, payable on each Fixed Rate Note and the
Base Rate of each Floating Rate Note, (d) the date or dates upon
which the principal of and any premium or interest on each Note
are payable, (e) the Redemption Date, if any, of such Note, and
(f) the date on which each Note ceases to be outstanding under
this Indenture; the Trustee shall furnish to the Mortgage Trustee
within five Business Days after the end of each calendar month
during which Notes were issued, a photocopy of the Pledged Bond,
including the schedule to the Pledged Bond which shall show
clearly the Notes outstanding as of the end of such calendar
month.
Section 4.08. Further Assurances. The Company, at its
own expense, shall do such further lawful acts and things, and
execute and deliver such additional conveyances, assignments,
assurances, agreements, financing statements and instruments, as
the Trustee may at any time reasonably request in order to better
assign, assure, perfect and confirm to the Trustee its security
interest in the Pledged Bond and for maintaining, protecting and
preserving such security interest.
ARTICLE FIVE.
Satisfaction and Discharge; Unclaimed Moneys.
Section 5.01. Satisfaction and Discharge.
(a) If at any time
(1) the Company shall have paid or caused to be
paid the principal of and premium, if any, and interest
on all the outstanding Notes, as and when the same
shall have become due and payable, or
(2) the Company shall have delivered to the
Trustee for cancellation all Notes theretofore
authenticated (other than any Notes which shall have
been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.07
hereof), or
(3) (A) all such Notes not theretofore delivered
to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and
payable within the year or are to be called for redemp-
tion within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and
(B) the Company shall have irrevocably deposited or
caused to be irrevocably deposited with the Trustee as
trust funds the entire amount in cash (other than
moneys repaid by the Trustee or any paying agent to the
Company in accordance with Section 5.03 or moneys paid
to any State or to the District of Columbia pursuant to
its unclaimed property or similar laws), U.S.
Government Obligations maturing as to principal and
interest in such amounts and at such times as will
insure the availability of cash, or a combination of
cash and U.S. Government Obligations, sufficient to pay
at maturity all outstanding Notes not theretofore
delivered to the Trustee for cancellation, including
principal and any premium and interest due or to become
due to such date of maturity, as the case may be, and
if, in any such case, the Company shall also pay or
cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of
further effect (except as to (i) rights of registration
of transfer and exchange of Notes, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or
stolen Notes, (iii) rights of Noteholders to receive
payments of principal thereof and any premium and
interest thereon, upon the original stated due dates
therefor (but not upon acceleration of maturity), (iv)
the rights, obligations and immunities of the Trustee
hereunder and (v) the rights of the holders of Notes as
beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of
them), and the Trustee, on demand of the Company accom-
panied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Company,
shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the
Trustee under Section 9.06 shall survive.
(b) The Company shall be deemed to have been
Discharged from its obligations with respect to the Notes on the
91st day after the applicable conditions set forth below have
been satisfied:
(1) the Company shall have deposited or caused
to be deposited irrevocably with the Trustee as trust
funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of
the Notes
(A) money in an amount, or
(B) U.S. Government Obligations, or a
combination of money and U.S. Government
Obligations, which through the payment of interest
and principal in respect thereof in accordance
with their terms will provide, in the opinion of
an accountant, who is also an employee of the
Company, expressed in a written certification
thereof delivered to the Trustee, not later than
one day before the due date of any payment, money
in an amount
sufficient to pay and discharge each installment of
principal of and any premium and interest on the
outstanding Notes on the dates such installments of
interest or principal are due, provided that the
Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such U.S. Government
Obligations to the payment of such installments of
principal of and any premium and interest with respect
to the outstanding Notes; and
(2) no Event of Default or event (including such
deposit) which with notice or lapse of time would
become an Event of Default with respect to the Notes
shall have occurred and be continuing on the date of
such deposit.
(c) "Discharged" means that the Company shall be
deemed to have paid and discharged the entire indebtedness
represented by, and obligations under, the Notes and to have
satisfied all the obligations under this Indenture relating to
the Notes (and the Trustee, on demand of the Company accompanied
by an Officers' Certificate and an Opinion of Counsel and at the
expense of the Company, shall execute proper instruments
acknowledging the same), except
(1) the rights of holders of the Notes to
receive, from the trust fund described in Section
5.01(b)(1), payments of the principal of and interest
on the Notes when such payments become due;
(2) the Company's obligations with respect to the
Notes under Sections 2.06, 2.07, 5.02, 5.03 and 6.02;
and
(3) the rights, powers, trusts, duties and immuni-
ties of the Trustee with respect to the Notes as speci-
fied in this Indenture, including the rights of the
Trustee to receive payment or reimbursement of
compensation and expenses pursuant to Section 9.06.
Section 5.02. Deposited Moneys to Be Held in Trust by
Trustee. All moneys and U.S. Government Obligations deposited
with the Trustee pursuant to Section 5.01 shall be held in trust
and applied by it to the payment, either directly or through any
paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Notes for the payment or
redemption of which such moneys and U.S. Government Obligations
have been deposited with the Trustee, of all sums due and to
become due thereon for principal and premium, if any, and
interest.
Section 5.03. Return of Unclaimed Moneys. Any moneys
deposited with or paid to the Trustee for payment of the
principal of or any premium or interest on any Notes and not
applied but remaining unclaimed by the holders of such Notes for
two years after the date upon which the principal of or any
premium or interest on such Notes, as the case may be, shall have
become due and payable, shall be repaid to the Company by the
Trustee on written demand and all liability of the Trustee shall
thereupon cease; and any holder of any of such Notes shall
thereafter look only to the Company for any payment which such
holder may be entitled to collect; provided, however, that the
Trustee before being required to make any such repayment, may at
the expense of the Company cause to be mailed to such holder
notice that such money remains unclaimed and that, after a date
specified therein which shall not be less than 30 days from the
date of such mailing, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 5.04. Reinstatement. If the Trustee is unable
to apply any money or U.S. Government Obligations in accordance
with Section 5.01 by reason of any legal proceeding or any order
or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture with respect to the
Notes to which such money or U.S. Government Obligations were to
have been applied shall be revived and reinstated as though no
deposit had occurred pursuant to Section 5.01 until such time as
the Trustee is permitted to apply such money or U.S. Government
Obligations in accordance with Section 5.01; provided, however,
that if the Company has made any payment of principal of or any
premium or interest on any Notes because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of
the holders of such Notes to receive such payment from the money
or U.S. Government Obligations held by the Trustee.
ARTICLE SIX.
Particular Covenants of the Company.
Section 6.01. Payment of Principal, Premium and Inte-
rest. The Company covenants and agrees for the benefit of the
holders of the Notes that it will duly and punctually pay or
cause to be paid the principal of and any premium and interest on
each of the Notes at the places, at the respective times and in
the manner provided in such Notes.
Section 6.02. Office for Notices and Payments, etc.
So long as any of the Notes remain outstanding, the Company will
maintain in the Borough of Manhattan, The City and State of New
York, an office or agency where the Notes may be presented for
registration of transfer and for exchange as in this Indenture
provided, and where, at any time when the Company is obligated to
make a payment upon Notes (other than an interest payment as to
which it has exercised its option to make such payment by check),
the Notes may be presented for payment, and shall maintain at any
such office or agency and at its principal office an office or
agency where notices and demands to or upon the Company in
respect of the Notes or of this Indenture may be served, provided
that the Company may maintain at its principal executive offices,
one or more other offices or agencies for any or all of the
foregoing purposes; the Company hereby appoints the Trustee as
agent of the Company for the foregoing purposes. The Company
will give to the Trustee written notice of the location of each
such office or agency and of any change of location thereof. In
case the Company shall fail to maintain any such office or agency
or shall fail to give such notice of the location or of any
change in the location thereof, presentations may be made and
notices and demands may be served at the corporate trust office
of the Trustee.
Section 6.03. Appointments to Fill Vacancies in Trus-
tee's Office. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 9.11, a Trustee, so that there shall at all
times be a Trustee hereunder.
Section 6.04. Annual Statement and Notice. (a) The
Company will deliver to the Trustee within 120 days after the end
of each fiscal year of the Company, beginning with the fiscal
year ending December 31, 1994, an Officers' Certificate which
complies with TIA Section 314(a)(4) stating that in the course of
the performance by the signers of their duties as officers of the
Company they would obtain knowledge of any default by the Company
in the performance of any covenant contained in this Indenture or
an Event of Default (as defined in the Mortgage) stating whether
they have obtained knowledge of any such default or such Event of
Default, and, if so, specifying each such default or such Event
of Default of which the signers have knowledge, and the nature
and status thereof.
(b) The Company shall give to the Trustee written
notice of the occurrence of an Event of Default within five days
after the Company becomes aware of such occurrence.
Section 6.05. Opinions of Counsel. The Company will
cause this Indenture and any indentures supplemental to this
Indenture to be promptly recorded and filed and rerecorded and
refiled in such a manner and in such places, as may be required
by law in order fully to preserve and protect the security of the
Noteholders and all rights of the Trustee, and will deliver to
the Trustee:
(a) promptly after the execution and delivery of this
Indenture and of any indenture supplemental to this Indenture, an
Opinion of Counsel either stating that in the opinion of such
counsel this Indenture or such supplemental indenture has been
properly recorded and filed so as to make effective the security
interest of the Trustee, for the benefit of the holders from time
to time of the Notes, in the Pledged Bond, intended to be created
by this Indenture, and reciting the details of such action, or
stating that in the opinion of such counsel no such action is
necessary to make such security interest effective; and
(b) on or before February 15, of each year, beginning
in 1995, an Opinion of Counsel either stating that in the opinion
of such counsel such action has been taken, since the date of the
most recent Opinion of Counsel furnished pursuant to this Section
6.05(b) or the first Opinion of Counsel furnished pursuant to
Section 6.05(a), with respect to the recording, filing, rerecord-
ing, or refiling of this Indenture and each supplemental
indenture, as is necessary to maintain the security interest of
the Trustee, for the benefit of the holders from time to time of
the Notes, in the Pledged Bond intended to be created by this
Indenture, and reciting the details of such action, or stating
that in the opinion of such counsel no such action is necessary
to maintain such security interest.
ARTICLE SEVEN.
Noteholder Lists and Reports by the Company
and the Trustee.
Section 7.01. Noteholder Lists. If it is not the
registrar for the Notes, the Company will, so long as any Notes
are outstanding under this Indenture, furnish or cause to be
furnished to the Trustee within 15 days prior to each Interest
Payment Date on Notes from time to time outstanding, and at such
other times as the Trustee, may request in writing, the
information required by TIA Section 312(a), which the Trustee
shall preserve as required by TIA Section 312(a). The Trustee
shall also comply with TIA Section 312(b), but the Trustee, the
Company and each Person acting on behalf of the Trustee or the
Company shall have the protection of TIA Section 312(c).
Section 7.02. Securities and Exchange Commission
Reports. The Company shall (a) file with the Trustee, within 15
days after the Company is required to file the same with the
Securities and Exchange Commission, copies of the reports,
information and documents (or portions thereof) required to be so
filed pursuant to TIA Section 314(a), and (b) comply with the
other provisions of TIA Section 314(a).
Section 7.03. Reports by the Trustee. The Trustee
shall (a) transmit within 60 days after August 15 in each year,
beginning with the year 1995, to the Noteholders specified in TIA
Section 3.13(c) and to the Securities and Exchange Commission, a
brief report dated as of such August 15 and complying with the
requirements of TIA Section 313(a), but no report shall be
required if no event described in TIA Section 313(a) shall have
occurred within the previous twelve months ending on such date.
The Trustee shall also comply with the other provisions of TIA
Section 313(b)(2).
ARTICLE EIGHT.
Remedies of the Trustee and Noteholders
on Event of Default.
Section 8.01. Events of Default.
(a) In case one or more of the following Events of
Default shall have occurred and be continuing with respect to the
Notes:
(1) default in the payment of any installment of
interest upon any of the Notes as and when the same
shall become due and payable, and continuance of such
default for a period of 30 days;
(2) default in the payment of the principal of or
any premium on any of the Notes as and when the same
shall become due and payable, and continuance of such
default for a period of one day (whether at the stated
maturity thereof or upon declaration of acceleration or
call for redemption or otherwise);
(3) failure on the part of the Company duly to
observe or perform any other of the covenants or agree-
ments on the part of the Company contained in the Notes
or in this Indenture for a period of 60 days after the
date on which written notice of such failure, requiring
the same to be remedied and stating that such notice is
a "Notice of Default" hereunder, shall have been given
to the Company by the Trustee by registered mail, or to
the Company and the Trustee by the holders of at least
25% in aggregate principal amount of the Notes at the
time outstanding provided, however, that, subject to
Sections 9.01 and 6.04, the Trustee shall not be deemed
to have knowledge of such failure unless either (A) a
responsible officer of the Trustee shall have actual
knowledge of such failure, or (B) the Trustee shall
have received written notice thereof from the Company
or any Noteholder;
(4) an event of Default (as defined in the Mort-
gage) has occurred and the principal of the Mortgage
Bonds has been declared and become due and payable in
the manner and with the effect provided in the
Mortgage;
(5) the entry of a decree or order by a court
having jurisdiction in the premises for relief in
respect of the Company under Title 11 of the United
States Code, as now constituted or hereafter amended,
or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official of the Company or of
any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(6) the filing by the Company of a petition or
answer or consent seeking relief under Title 11 of the
United States Code, as now constituted or hereafter
amended, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or the
consent by it to the institution of proceedings there-
under or to the filing of any such petition or to the
appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Company or of any
substantial part of its property, or the failure of the
Company generally to pay its debts as such debts become
due, or the taking of corporate action by the Company
in furtherance of any such action;
then and in each and every such case, unless the principal of all
of the Notes shall have already become due and payable, either
the Trustee or the holders of a majority in aggregate principal
amount of the Notes then outstanding, by notice in writing to the
Company (and to the Trustee if given by Noteholders), may declare
the principal of all the Notes to be due and payable immediately
and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the
Notes contained to the contrary notwithstanding. This provision,
however, is subject to the condition that if, at any time after
the principal of the Notes shall have been so declared due and
payable, and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon
all of the Notes and the principal of and any premium on any and
all Notes which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest,
to the extent that payment of such interest is enforceable under
applicable law, and on such principal and any premium at the rate
borne by the Notes to the date of such payment or deposit) and
all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any and all defaults
under this Indenture, other than the non-payment of principal of
and accrued interest on Notes which shall have become due by
acceleration of maturity, shall have been cured or waived -- then
and in every such case the holders of a majority in aggregate
principal amount of the Notes then outstanding, by written notice
to the Company and to the Trustee, may waive all such defaults
and rescind and annul such declaration and its consequences; but
no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default, or shall impair any right
consequent thereon.
(b) In case the Trustee shall have proceeded to
enforce any right under this Indenture and such proceedings shall
have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company
and the Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and
powers of the Company and the Trustee shall continue as though no
such proceeding had been taken.
Section 8.02. Payment of Notes on Default; Suit There-
for.
(a) The Company covenants that in case of
(1) default in the payment of any installment of
interest upon any of the Notes as and when the same
shall become due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of or any
premium on any of the Notes as and when the same shall have
become due and payable, and continuance of such default for
a period of one day (whether at the stated maturity thereof
or upon declaration of acceleration or call for redemption
or otherwise)
then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Notes, the whole
amount that then shall have so become due and payable on all such
Notes for principal and any premium or interest, or both, as the
case may be, with interest upon the overdue principal and any
premium and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments
of interest at the rate borne by the Notes; and, in addition
thereto, such further amounts as shall be sufficient to cover the
costs and expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys and counsel,
and any expenses or liabilities incurred by the Trustee hereunder
other than through its negligence or bad faith.
(b) In case the Company shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its own name and
as trustee of an express trust, shall be entitled and empowered
to institute any actions or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and
may enforce any such judgment or final decree against the Company
or any other obligor on the Notes and collect in the manner
provided by law out of the property of the Company or any other
obligor on such series of Notes wherever situated, the moneys
adjudged or decreed to be payable.
(c) In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other
obligor on the Notes under the Federal Bankruptcy Code or any
other applicable law, or in case a receiver or trustee shall have
been appointed for the property of the Company or such other
obligor, or in the case of any similar judicial proceedings
relative to the Company or other obligor upon the Notes, or to
the creditors or property of the Company or such other obligor,
the Trustee, irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to this Section 8.02, shall
be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole
amount of principal and any premium and interest owing and unpaid
in respect of the Notes, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any amounts due to the Trustee
under Section 9.06 hereof) and of the holders of Notes allowed in
such judicial proceedings relative to the Company or any other
obligor on the Notes, its or their creditors, or its or their
property, and to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses; and any
receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized by each of the Noteholders to make such
payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to the holders of
any Notes, to pay to the Trustee any amount due to it for
compensation and expenses, including counsel fees and expenses
incurred by it up to the date of such distribution.
(d) All rights of action and of asserting claims under
this Indenture, or under any of the Notes, may be enforced by the
Trustee without the possession of any of the Notes, or the
production thereof in any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall be for the ratable
benefit of the holders of the Notes in respect of which such
action was taken.
(e) Nothing herein contained shall be deemed to autho-
rize the Trustee to authorize or consent or to accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of
any holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Noteholder in any such proceeding.
Section 8.03. Application of Moneys Collected by
Trustee. Any moneys collected by the Trustee with respect to any
of the Notes shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such
moneys, upon presentation of the several Notes, and stamping
thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due to the
Trustee pursuant to Section 9.06;
SECOND: In case the principal of the outstanding
Notes in respect of which such moneys have been
collected shall not have become due and be unpaid, to
the payment of interest on the Notes, in the order of
the maturity of the installments of such interest, with
interest (to the extent allowed by law and to the
extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at
the rate borne by the Notes, such payments to be made
ratably to the persons entitled thereto;
THIRD: In case the principal of the outstanding
Notes in respect of which such moneys have been
collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then
owing and unpaid upon the Notes for principal and any
premium and interest thereon, with interest on the
overdue principal and any premium and (to the extent
allowed by law and to the extent that such interest has
been collected by the Trustee) upon overdue
installments of interest at the rate borne by the
Notes; and in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the
Notes, then to the payment of such principal and any
premium and interest without preference or priority of
principal and any premium over interest, or of interest
over principal and any premium or of any installment of
interest over any other installment of interest, or of
any Note over any other Note, ratably to the aggregate
of such principal and any premium and accrued and
unpaid interest; and
FOURTH: To the payment of the remainder, if any,
to the Company its successors or assigns, or to
whomsoever may lawfully be entitled to the same, or as
a court of competent jurisdiction may determine.
Section 8.04. Proceedings by Noteholders.
(a) No holder of any Note shall have any right by
virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless such holder previously shall have given to the Trustee
written notice of default with respect to such Note and of the
continuance thereof, as hereinabove provided, and unless also the
holders of not less than a majority in aggregate principal amount
of the Notes then outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding, it
being understood and intended, and being expressly covenanted by
the taker and the holder of every Note with every other taker and
holder and the Trustee that no one or more holders of Notes shall
have any right in any manner whatever by virtue of or by availing
of any provision of this Indenture to affect, disturb or
prejudice the rights of any other holder of Notes, or to obtain
or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common
benefit of all holders of Notes.
(b) Notwithstanding any other provision in this Inden-
ture, however, the rights of any holder of any Note to receive
payment of the principal of and any premium and interest on such
Note, on or after the respective due dates expressed in such
Note, or to institute suit for the enforcement of any such
payment on or after such respective dates shall not be impaired
or affected without the consent of such holder.
Section 8.05. Proceedings by Trustee. In case of an
Event of Default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this
Indenture, including its rights as holder of the Pledged Bond, by
such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in bank-
ruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of
the exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Section 8.06. Remedies Cumulative and Continuing. All
powers and remedies given by this Article Eight to the Trustee or
to the Noteholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any powers and remedies
hereof or of any other powers and remedies available to the
Trustee or the holders of the Notes, by judicial proceedings or
otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any holder of any of the
Notes in exercising any right or power accruing upon any default
occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to Section 8.04,
every power and remedy given by this Article Eight or by law to
the Trustee or to the Noteholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee
or by the Noteholders.
Section 8.07. Restoration of Rights and Remedies. If
the Trustee or any Noteholder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such
Noteholder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and
the Noteholders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Noteholders shall continue as
though no such proceeding had been instituted.
Section 8.08. Direction of Proceedings and Waiver of
Defaults by Majority Noteholders. The holders of a majority in
aggregate principal amount of the Notes at the time outstanding
shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that (subject to Section 9.01) the
Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that
the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors
or trustees or responsible officers shall determine that the
action or proceeding so directed would involve the Trustee in
personal liability or would be unduly prejudicial to the rights
of Noteholders not joining in such directions. Prior to any
declaration accelerating the maturity of the Notes, the holders
of a majority in aggregate principal amount of the Notes at the
time outstanding may on behalf of all of the holders of the Notes
waive any past default or Event of Default hereunder and its
consequences except a default in the payment of principal of or
any premium or interest on the Notes. Upon any such waiver the
Company, the Trustee and the holders of the Notes shall be
restored to their former positions and rights hereunder,
respectively, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section
8.07, said default or Event of Default shall for all purposes of
the Notes and this Indenture be deemed to have been cured and to
be not continuing.
Section 8.09. Notice of Default. The Trustee shall,
within 90 days after the occurrence of a default with respect to
the Notes, give to all holders of the Notes specified in TIA
Section 3.13(c), in the manner provided in Section 15.10, notice
of such default, unless such default shall have been cured before
the giving of such notice, the term "default" for the purpose of
this Section 8.08 being hereby defined to be any event which is
or after notice or lapse of time or both would become an Event of
Default; provided that, except in the case of default in the
payment of the principal of or any premium or interest on any of
the Notes, the Trustee shall be protected in withholding such
notice if and so long as its board of directors or trustees,
executive committee, or a trust committee of directors or
trustees or responsible officers in good faith determines that
the withholding of such notice is in the interests of the holders
of the Notes. The Trustee shall not be charged with knowledge of
any Event of Default unless a responsible officer of the Trustee
assigned to the corporate trust division of the Trustee shall
have actual knowledge of such Event of Default.
Section 8.10. Undertaking to Pay Costs. All parties
to this Indenture agree, and each holder of any Note by
acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but this Section 8.09 shall not
apply to any suit instituted by the Trustee, or to any suit
instituted by any Noteholder, or group of Noteholders, holding in
the aggregate more than 10% in principal amount of the Notes
outstanding, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of or any premium or
interest on any Note on or after the due date expressed in such
Note.
ARTICLE NINE.
Concerning the Trustee.
Section 9.01. Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event
of Default and after the curing of all Events of Default which
may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred (which has not been cured
or waived) the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(b) No provisions of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful
misconduct, except that:
(1) prior to the occurrence of any Event of
Default and after the curing or waiving of all Events
of Default which may have occurred,
(A) the duties and obligations of the Trustee
shall be determined solely by the express
provisions of this Indenture, and the Trustee
shall not be liable except for the performance of
such duties and obligations as are specifically
set forth in this Indenture, and no implied
covenants or obligations shall be read into this
Indenture against the Trustee; and
(B) in the absence of bad faith on the part
of the Trustee, the Trustee may conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but, in the case of any such
certificates or opinions which by any provision
hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not
they conform to the requirements of this
Indenture;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a responsible officer
or officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the
holders of at least a majority in principal amount of
the Notes at the time outstanding determined as
provided in Section 10.04 relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture.
(c) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee
shall be subject to this Section 9.01.
Section 9.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 9.01,
(a) the Trustee may rely and shall be protected
in acting or refraining from acting upon any
resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, note
or other paper or document believed by it to be genuine
and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of
the Company mentioned herein shall be sufficiently
evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically
prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel selected
by the Trustee, if such counsel is reasonably
satisfactory to the Company, and any advice or Opinion
of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of
any of the Noteholders, pursuant to this Indenture,
unless such Noteholders shall have offered to the
Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred
by such exercise;
(e) the Trustee shall not be liable for any
action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by
this Indenture;
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, approval, bond, note, other evidence of
indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to
make such futher inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Company, personally or by agent or attorney;
(g) no provision of this Indenture shall require
the Trustee to extend or risk its own funds or
otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; and
(h) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys;
provided, however, that the Trustee shall not be liable
for the conduct or acts of any such agent or attorney
that shall have been appointed in accordance herewith
with due care.
Section 9.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Notes (except in the
certificate of authentication) shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes.
The Trustee shall not be accountable for the use or application
by the Company of any Notes or the proceeds of any Notes
authenticated and delivered by the Trustee in conformity with
this Indenture.
Section 9.04. Trustee, Authenticating Agent or
Registrar May Own Notes. The Trustee and any Authenticating
Agent or Note registrar, in its individual or any other capacity,
may become the owner or pledgee of Notes with the same rights it
would have if it were not Trustee, Authenticating Agent or Note
registrar.
Section 9.05. Moneys to Be Held in Trust. Subject to
Section 5.03, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated
from other funds except to the extent required by law.
Section 9.06. Compensation and Expenses of Trustee.
(a) The Company agrees:
(1) to pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as
has been agreed upon in writing (which compensation shall
not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee
upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the
reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence
or bad faith on its own part, arising out of or in
connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
(b) As security for the performance of the obligations
of the Company under this Section 9.06, the Trustee shall have a
claim prior to the Notes upon all property and funds held or
collected by the Trustee as such, except funds held in trust for
the payment of principal of and any premium and interest on
particular Notes.
(c) When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in
Section 8.01(5) or (6), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or state bankruptcy, insolvency or
other similar law.
(d) The provisions of this Section 9.06 shall survive
the termination of this Indenture.
Section 9.07. Officers' Certificate as Evidence.
Except as otherwise provided in Section 9.01, whenever in the
administration of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof is herein
specifically prescribed) may, in the absence of negligence or bad
faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to
the Trustee, and such Officers' Certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted
by it under this Indenture in reliance thereon.
Section 9.08. Conflicting Interest of Trustee. The
Trustee will comply with TIA Section 310(b); provided, however,
that (a) there shall be excluded from the requirements of TIA
Section 310(b)(1) all indentures which may be excluded pursuant
to the proviso to TIA Section 310(b)(1); and(b) the provisions of
the first sentence of TIA Section 310(b)(9) shall not apply to
any securities described in the second sentence of TIA Section
310(b)(9).
Section 9.09. Eligibility of Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing
business under the laws of the United States or any State thereof
or of the District of Columbia authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least $20,000,000 and subject to supervision or
examination by Federal, State or District of Columbia authority
and shall not otherwise be disqualified under TIA Section
310(a)(5). If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the
purposes of this Section 9.09, the combined capital and surplus
of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be
eligible in accordance with this Section 9.09, the Trustee shall
resign immediately in the manner and with the effect specified in
Section 9.10.
Section 9.10. Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be
discharged of the trusts created by this Indenture by giving
written notice to the Company specifying the day upon which such
resignation shall take effect, and such resignation shall take
effect upon the day specified in such notice unless previously a
successor trustee shall have been appointed by the Noteholders or
the Company in the manner provided in Section 9.11, and in such
event such resignation shall take effect immediately on the
appointment of such successor trustee.
(b) The Trustee may be removed at any time by an
instrument or concurrent instruments in writing filed with such
Trustee and signed and acknowledged by the holders of a majority
in principal amount of the then outstanding Notes or by their
attorneys in fact duly authorized.
(c) In case at any time the Trustee shall cease to be
eligible in accordance with Section 9.09, then the Trustee so
ceasing to be eligible shall resign immediately in the manner and
with the effect provided in this Section 9.10, and in the event
that it does not resign immediately in such case, then it may be
removed forthwith by an instrument or concurrent instruments in
writing filed with the Trustee so ceasing to be eligible and
either:
(1) signed by the President or any Vice-President
of the Company attested by the Secretary or an
Assistant Secretary of the Company; or
(2) signed and acknowledged by the holders of a
majority in principal amount of outstanding Notes or by
their attorneys in fact duly authorized.
(d) Any resignation or removal of the Trustee and any
appointment of a successor Trustee pursuant to this Section 9.10
shall become effective upon acceptance of appointment by the
successor Trustee as provided in Section 9.12.
Section 9.11. Appointment of Successor Trustee.
(a) In case at any time the Trustee shall resign or
shall be removed (unless such Trustee shall be removed as
provided in Section 9.10(c) in which event the vacancy shall be
filled as provided therein), or shall become adjudged a bankrupt
or insolvent, or if a receiver of the Trustee or of its property
shall be appointed, or if any public officer shall take charge or
control of the Trustee, or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation, or a
vacancy shall be deemed to exist in the office of the Trustee for
any other reason, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. Within one year after such
resignation, removal or incapability or the occurrence of such
vacancy, a successor Trustee may be appointed by act of the
holders of a majority in principal amount of the outstanding
Notes, delivered to the Company and retiring Trustee, and the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company or by
such receiver or Trustee.
(b) The Company shall publish notice of any
resignation and subsequent appointment of a successor Trustee
made by it or by act of Noteholders in one Authorized Newspaper
in the Borough of Manhattan, The City of New York, and in one
Authorized Newspaper in the city in which the principal office of
the Trustee is located, once each.
(c) If in a proper case no appointment of a successor
Trustee shall be made pursuant to Section 9.11(a) within six
months after a vacancy shall have occurred in the office of
Trustee, any Noteholder or any resigning Trustee may apply to any
court of competent jurisdiction to appoint a successor Trustee.
Said court may thereupon after such notice, if any, as such court
may deem proper and prescribe, appoint a successor Trustee.
(d) If any Trustee resigns because of conflict of
interest as provided in Section 9.08 and a successor Trustee has
not been appointed by the Company or the Noteholders or, if
appointed, has not accepted the appointment, within 30 days after
the date of such resignation, the resigning Trustee may apply to
any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) Any Trustee appointed under this Section 9.11 as a
successor Trustee shall be a bank or trust company eligible under
Section 9.09 and qualified under Section 9.08.
Section 9.12. Acceptance by Successor Trustee.
(a) Any successor Trustee appointed as provided in
Section 9.11 shall execute, acknowledge and deliver to the
Company and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or
removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but
nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment
of any amounts then due it pursuant to Section 9.06, execute and
deliver an instrument transferring to such successor Trustee all
the rights and powers of the Trustee so ceasing to act, including
the right, title, and interest of the Trustee ceasing to act, in
and to the Pledged Bond. Upon request of any such successor
Trustee, the Company shall execute any and all instruments in
writing in order more fully and certainly to vest in and confirm
to such successor Trustee all such rights and powers. Any
Trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such Trustee to secure
any amounts then due it pursuant to Section 9.06.
(b) No successor Trustee shall accept appointment as
provided in this Section 9.12 unless at the time of such
acceptance such successor Trustee shall be qualified under
Section 9.08 and eligible under Section 9.09.
(c) Upon acceptance of appointment by a successor
Trustee as provided in this Section 9.12, the Company shall mail
notice of the succession of such Trustee hereunder to all holders
of Notes as the names and addresses of such holders appear on the
registry books. If the Company fails to mail such notice in the
prescribed manner within 10 days after the acceptance of appoint-
ment by the successor Trustee, the successor Trustee shall cause
such notice to be mailed at the expense of the Company.
Section 9.13. Succession by Merger, etc.
(a) Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties
hereto.
(b) In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture any of the
Notes shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentica-
tion of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all
such cases such certificates shall have the full force which it
is anywhere in the Notes or in this Indenture provided that the
certificates of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Notes in the name of any
predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
Section 9.14. Limitations on Rights of Trustee as a
Creditor. The Trustee shall comply with TIA Section 311(a). A
Trustee which has resigned or been removed shall be subject to
TIA Section 311(a) to the extent indicated therein.
Section 9.15. Authenticating Agent. (a) There may be
one or more Authenticating Agents appointed by the Trustee with
power to act on its behalf and subject to its direction in the
authentication and delivery of Notes in connection with transfers
and exchanges under Sections 2.05, 2.06, 2.07, 2.08, 3.02, 3.03,
and 13.04, as fully to all intents and purposes as though such
Authenticating Agents had been expressly authorized by those
Sections to authenticate and deliver Notes. For all purposes of
this Indenture, the authentication and delivery of Notes by any
Authenticating Agent pursuant to this Section 9.15 shall be
deemed to be the authentication and delivery of such Notes "by
the Trustee." Any such Authenticating Agent shall be a bank or
trust company of the character and qualifications set forth in
Section 9.09.
(b) Any corporation into which any Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate
trust business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this
Section 9.15, without the execution or filing of any paper or any
further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
(c) Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in
case at any time any Authenticating Agent shall cease to be
eligible under this Section 9.15, the Trustee shall promptly
appoint a successor Authenticating Agent, shall give written
notice of such appointment to the Company and shall mail, in the
manner provided in Section 15.10, notice of such appointment to
the holders of Notes.
(d) The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services,
and the Trustee shall be entitled to be reimbursed for such
payments, in accordance with Section 9.06.
(e) Sections 9.02, 9.03, 9.04, 9.06, 9.09 and 10.03
shall be applicable to any Authenticating Agent.
Section 9.16. Trustee's Application for Instructions
from the Company. Any application by the Trustee for written
instructions from the Company may, at the option of the Trustee,
set forth in writing any action proposed to be taken or omitted
by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken
by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in
such application (which date shall not be less than five Business
Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the
Trustee shall have received written instructions in response to
such application specifying the action to be taken or omitted.
ARTICLE TEN.
Concerning the Noteholders.
Section 10.01. Action by Noteholders. (a) Whenever
in this Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Notes may take
any action (the making of any demand or request, or the giving of
any notice, consents or waivers in lieu of a Noteholders' meeting
or the taking of any other action) the fact that at the time of
taking any such action the holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by such
Noteholders in person or by agent or proxy appointed in writing,
or (b) by the record of such Noteholders voting in favor thereof
at any meeting of Noteholders duly called and held in accordance
with Article Eleven, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of
Noteholders.
(b) Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount
of the Notes may take any action, any party designated in writing
by the Depositary, or by any party so designated by the
Depositary, as the owner of a beneficial interest of a specified
principal amount of any Global Note held by such Depositary shall
be deemed to be a holder of Notes in such principal amount for
such purpose.
Section 10.02. Proof of Execution by Noteholders. (a)
Subject to Sections 9.01, 9.02 and 11.05, proof of the execution
of any instruments by a Noteholder or the agent or proxy for such
Noteholder shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the
Trustee or in such manner as shall be satisfactory to the
Trustee. The ownership of Notes shall be proved by the Note
register of the Company or by a certificate of the Note
registrar.
(b) The record of any Noteholders' meeting shall be
proven in the manner provided in Section 11.06.
Section 10.03. Who Deemed Absolute Owners. Subject to
Sections 2.04(f) and 10.01, the Company, the Trustee, any
Authenticating Agent and Note registrar may deem the person in
whose name any Note shall be registered upon the Note register of
the Company to be, and may treat such person as, the absolute
owner of such Note (whether or not such Note shall be overdue)
for the purpose of receiving payment of or on account of the
principal of and any premium and interest on such Note, and for
all other purposes; and neither the Company nor the Trustee nor
any Authenticating Agent nor any Note registrar shall be affected
by any notice to the contrary. All such payments shall be valid
and effectual to satisfy and discharge the liability upon any
such Note to the extent of the sum or sums so paid.
Section 10.04. Company-Owned Notes Disregarded. In
determining whether the holders of the requisite aggregate
principal amount of outstanding Notes have concurred in any
direction, consent or waiver under this Indenture, Notes which
are owned by the Company or any other obligor on the Notes or by
any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any
other obligor on the Notes shall be disregarded and deemed not to
be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, consent or
waiver only Notes which the Trustee knows are so owned shall be
so disregarded. Notes so owned which have been pledged in good
faith may be regarded as outstanding for the purposes of this
Section 10.04 if the pledgee shall establish to the satisfaction
of the Trustee the pledgee's right to vote such Notes and that
the pledgee is not a person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection to the Trustee.
Section 10.05. Revocation of Consents; Future Holders
Bound. At any time prior to the taking of any action by the
holders of the percentage in aggregate principal amount of the
Notes specified in this Indenture in connection with such action,
any holder of a Note, which is shown by the evidence to be
included in the Notes the holders of which have consented to such
action may, by filing written notice with the Trustee at the
Corporate Trust Office of the Trustee and upon proof of ownership
as provided in Section 10.02(a), revoke such action so far as it
concerns such Note. Except as aforesaid any such action taken by
the holder of any Note shall be conclusive and binding upon such
holder and upon all future holders and owners of such Note and of
any Notes issued in exchange or substitution therefor,
irrespective of whether or not any notation thereof is made upon
such Note or such other Notes.
Section 10.06. Record Date for Noteholder Acts. If
the Company shall solicit from the Noteholders any request,
demand, authorization, direction, notice, consent, waiver or
other act, the Company may, at its option, by Board Resolution,
fix in advance a record date in compliance with TIA Section
3.16(c) for the determination of Noteholders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other act, but the Company shall have no obligation to
do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other act
may be given before or after the record date, but only the
Noteholders of record at the close of business on the record date
shall be deemed to be Noteholders for the purpose of determining
whether holders of the requisite aggregate principal amount of
outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other act, and for that purpose the outstanding Notes
shall be computed as of the record date; provided, however, that
no such authorization, agreement or consent by the Noteholders on
the record date shall be deemed effective unless it shall become
effective pursuant to this Indenture not later than six months
after the record date.
ARTICLE ELEVEN
Noteholders' Meeting.
Section 11.01. Purposes of Meetings. A meeting of
Noteholders may be called at any time and from time to time
pursuant to this Article Eleven for any of the following
purposes:
(a) to give any notice to the Company or to the
Trustee, or to give any directions to the Trustee, or
to consent to the waiving of any default hereunder and
its consequences, or to take any other action
authorized to be taken by Noteholders pursuant to
Article Eight;
(b) to remove the Trustee and nominate a
successor Trustee pursuant to Article Nine;
(c) to consent to the execution of an indenture
or indentures supplemental hereto pursuant to Section
13.02; or
(d) to take any other action authorized to be
taken by or on behalf of the holders of any specified
aggregate principal amount of the Notes, as the case
may be, under any other provision of this Indenture or
under applicable law.
Section 11.02. Call of Meetings by Trustee. The
Trustee may at any time call a meeting of holders of Notes to
take any action specified in Section 11.01, to be held at such
time and at such place as the Trustee shall determine. Notice of
every such meeting of Noteholders, setting forth the time and the
place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given to holders of the Notes
that may be affected by the action proposed to be taken at such
meeting in the manner provided in Section 15.10. Such notice
shall be given not less than 20 nor more than 90 days prior to
the date fixed for such meeting.
Section 11.03. Call of Meetings by Company or Note-
holders. In case at any time the Company, pursuant to a Board
Resolution, or the holders of at least 10% in aggregate principal
amount of the Notes then outstanding, shall have requested the
Trustee to call a meeting of Noteholders, by written request
setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such
request, then the Company or such Noteholders may determine the
time and the place for such meeting and may call such meeting to
take any action authorized in Section 11.01, by giving notice
thereof as provided in Section 11.02.
Section 11.04. Qualifications for Voting. To be
entitled to vote at any meetings of Noteholders a Person shall
(a) be a holder of one or more Notes affected by the action pro-
posed to be taken or (b) be a Person appointed by an instrument
in writing as proxy by a holder of one or more such Notes. The
only Persons who shall be entitled to be present or to speak at
any meeting of Noteholders shall be the Persons entitled to vote
at such meeting and their counsel and any representatives of the
Trustee and its counsel and any representatives of the Company
and its counsel.
Section 11.05. Regulations. (a) Notwithstanding any
other provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting
of Noteholders, in regard to proof of the holding of Notes and of
the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall think fit.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by the Noteholders as
provided in Section 11.03, in which case the Company or
Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by the
holders of a majority in aggregate principal amount of the Notes
present in person or by proxy at the meeting.
(c) Subject to Section 10.04, at any meeting each
Noteholder or proxy shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by such Noteholder;
provided, however, that no vote shall be cast or counted at any
meeting in respect of any Note challenged as not outstanding and
ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by
virtue of Notes held by such chairman or instruments in writing
as aforesaid duly designating such chairman as the person to vote
on behalf of other Noteholders. At any meeting of Noteholders
duly called pursuant to Section 11.02 or 11.03, the presence of
persons holding or representing Notes in an aggregate principal
amount sufficient to take action on any business for the
transaction for which such meeting was called shall constitute a
quorum. Any meeting of Noteholders duly called pursuant to
Section 11.02 or 11.03 may be adjourned from time to time by the
holders of a majority in aggregate principal amount of the Notes
present in person or by proxy at the meeting, whether or not
constituting a quorum, and the meeting may be held as so
adjourned without further notice.
Section 11.06. Voting. The vote upon any resolution
submitted to any meeting of Noteholders shall be by written
ballots on which shall be subscribed the signatures of the
holders of Notes or of their representatives by proxy and the
principal amount of Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Noteholders shall
be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice
was given as provided in Section 11.02. The record shall show
the principal amount of the Notes voting in favor of or against
any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting
and one of the duplicates shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee. Any
record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 11.07. Right of Trustee or Noteholders not
Delayed. Nothing in this Article Eleven contained shall be
deemed or construed to authorize or permit, by reason of any call
of a meeting of Noteholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to
the Trustee or to the holders of Notes under any of the
provisions of this Indenture or of the Notes.
ARTICLE TWELVE
Consolidation, Merger, Conveyance, Transfer or Lease
Section 12.01. Company May Consolidate, etc., only on
Certain Terms. The Company shall not consolidate with or merge
into any other corporation or convey or transfer its properties
and assets substantially as an entirety to any Person unless:
(1) the corporation formed by such consolidation
or into which the Company is merged or the Person which
acquires by conveyance or transfer the properties and
assets of the Company substantially as an entirety
shall be a corporation organized and existing under the
laws of the United States of America or any State or
the District of Columbia, and shall expressly assume,
by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal
of and any premium and interest on all of the Notes and
the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such
consolidation, merger, conveyance or transfer, no Event
of Default, and no event which, after notice or lapse
of time, or both, would become an Event of Default,
shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger, conveyance or
transfer and such supplemental indenture comply with
this Article Twelve and that all conditions precedent
herein provided for relating to such consolidation,
merger, conveyance or transfer have been complied with.
Section 12.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer
of the properties and assets of the Company substantially as an
entirety in accordance with Section 12.01, the successor
corporation formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as
the Company herein; provided, however, that no such conveyance or
transfer shall have the effect of releasing the Person named as
the "Company" in the first paragraph of this Indenture or any
successor corporation which shall theretofore have become such in
the manner prescribed in this Article Twelve from its liability
as obligor and maker on any of the Notes.
ARTICLE THIRTEEN
Supplemental Indentures.
Section 13.01. Supplemental Indentures without Consent
of Noteholders.
(a) The Company, when authorized by Board Resolution,
and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for one or more of
the following purposes:
(1) to make such provision in regard to matters
or questions arising under this Indenture as may be
necessary or desirable and not inconsistent with this
Indenture or for the purpose of supplying any omission,
curing any ambiguity, or curing, correcting or supple-
menting any defective or inconsistent provision or to
make a change which does not affect the rights of any
Noteholder;
(2) to change or eliminate any of the provisions
of this indenture, provided that any such change or
elimination shall become effective only when there is
no Note outstanding created prior to the execution of
such supplemental indenture which is entitled to the
benefit of such provision;
(3) to establish the form of Notes as permitted
by Section 2.01 or to establish or reflect any terms of
any Note determined pursuant to Section 2.05;
(4) to evidence the succession of another
corporation to the Company, and the assumption by any
such successor of the covenants of the Company herein
and in the Notes;
(5) to grant to or confer upon the Trustee for the
benefit of the Holders any additional rights, remedies,
powers or authority;
(6) to permit the Trustee to comply with any duties
imposed upon it by law;
(7) to specify further the duties and responsibilities
of, and to define further the relationships among, the
Trustee, any Authenticating Agent and any paying agent; and
(8) to add to the covenants of the Company for the
benefit of the holders or to surrender a right or power
conferred on the Company herein.
(b) The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to
make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer
and assignment of any property thereunder, but the Trustee shall
not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
(c) Any supplemental indenture authorized by this
Section 15.01 may be executed by the Company and the Trustee
without the consent of the holders of any of the Notes at the
time outstanding, notwithstanding any of the provisions of
Section 13.02.
Section 13.02. Supplemental Indentures with Consent of
Noteholders.
(a) With the consent (evidenced as provided in Sec-
tion 10.01) of the holders of at least 50% in aggregate principal
amount of the Notes at the time outstanding that would be
affected by such supplemental indenture, the Company, when
authorized by Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Noteholders; provided, however,
that no such supplemental indenture shall:
(1) change the maturity of any Note; or reduce
the rate or extend the time of payment of interest on
any Note; or change the method of calculating interest,
or any term used in the calculation of interest, or the
period for which interest is payable, on any Floating
Rate Note; or reduce the principal amount of any Note
or any premium thereon; or change the coin or currency
in which the principal of any Note or any premium or
interest thereon is payable; or change the date on
which any Note may be redeemed; or adversely affect the
rights of any Noteholder to institute suit for the
enforcement of any payment of principal of or any
premium or interest on any Note; in each case without
the consent of the holder of each Note so affected (for
purposes of this Section 13.02 (a)(1) only, the term
"Note" shall include Notes for which an offer has been
accepted by the Company); or
(2) reduce the aforesaid percentage of Notes, the
holders of which are required to consent to any such
supplemental indenture, without the consent of the
holders of all of the Notes then outstanding.
(b) Upon the request of the Company, accompanied by a
copy of the Board Resolution authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Noteholders as aforesaid, the
Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects
the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such
supplemental indenture.
(c) It shall not be necessary for the consent of the
holders of Notes under this Section 13.02 to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
(d) Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to this
Section 13.02, the Company shall give notice in the manner
provided in Section 15.10, setting forth in general terms the
substance of such supplemental indenture, to all Noteholders.
Any failure of the Company to give such notice, or any defect
therein shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
Section 13.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures. Any supplemental indenture
executed pursuant to this Article Thirteen shall comply with the
TIA. Upon the execution of any supplemental indenture pursuant
to this Article Thirteen, this Indenture shall be and be deemed
to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and
the Noteholders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 13.04. Notation on Notes. Notes authenticated
and delivered after the execution of any supplemental indenture
pursuant to this Article Thirteen may bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so
determine, new Notes so modified as to conform in the opinion of
the Trustee and the Board of Directors to any modification of
this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company, authenticated by the
Trustee and delivered in exchange for the Notes then outstanding.
Section 13.05. Evidence of Compliance of Supplemental
Indenture to Be Furnished Trustee. The Trustee, subject to
Sections 9.01 and 9.02, may receive an Officers' Certificate and
an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the
requirements of this Article Thirteen.
ARTICLE FOURTEEN.
Immunity of Incorporators, Stockholders,
Officers and Directors.
Section 14.01. Indenture and Notes Solely Corporate
Obligations. No recourse for the payment of the principal of or
any premium or interest on any Note, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company,
contained in this Indenture or in any supplemental indenture, or
in any Note, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or
future, of the Company or any successor corporation, either
directly or through the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue
of the Notes.
ARTICLE FIFTEEN.
Miscellaneous Provisions.
Section 15.01. Provisions Binding on Company's Succes-
sors. All the covenants, stipulations, promises and agreements
made by the Company in this Indenture shall bind its successors
and assigns whether so expressed or not.
Section 15.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and
performed with like force and effect by the like board, committee
or officer of any corporation that shall at the time be the
lawful successor of the Company.
Section 15.03. Addresses for Notices, etc. Any notice
or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the
Noteholders on the Company may be given or served by being depos-
ited postage prepaid in a post office letter box addressed (until
another address is filed by the Company with the Trustee) to
Kansas City Power & Light Company, 1201 Walnut, Kansas City,
Missouri 64106, to the attention of the Corporate Secretary.
Any notice, direction, request or demand by any Noteholder to or
upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.
Section 15.04. Governing Law. This Indenture and each
Note shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in
accordance with the laws of said State.
Section 15.05. Evidence of Compliance with Conditions
Precedent.
(a) Upon any application or demand by the Company to
the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture shall
include (1) a statement that each Person making such certificate
or opinion has read such covenant or condition and the
definitions relating thereto; (2) a brief statement as to the
nature and scope of the examination or investigation upon which
the statements or opinion contained in such certificate or
opinion are based; (3) a statement that, in the opinion of each
such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether or not,
in the opinion of each such Person, such condition or covenant
has been complied with.
(c) In any case where several matters are required to
be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person,or that
they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents.
(d) Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or
opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such person knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
(e) Any certificate, statement or opinion of any
officer of the Company, or of counsel, may be based, insofar as
it relates to accounting matters, upon a certificate or opinion
of or representations by an accountant or firm of accountants,
unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to the
accounting matters upon which the certificate, statement or
opinion of such officer or counsel may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate or opinion of any firm
of independent public accountants filed with the Trustee shall
contain a statement that such firm is independent.
(f) Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under
this Indenture, they may, but need not, be consolidated and form
one instrument.
Section 15.06. Business Days. Unless otherwise
provided herein, in any case where the date of maturity of the
principal of or any premium or interest on any Note or the date
fixed for redemption of any Note is not a Business Day, then
payment of such principal or any premium or interest need not be
made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and, in the case of
payment, no interest shall accrue for the period from and after
such date.
Section 15.07. Trust Indenture Act to Control. If and
to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this
Indenture which is required to be included in this Indenture by
any of Sections 310 to 317, inclusive, of the TIA, such required
provision shall control.
Section 15.08. Table of Contents, Headings, etc. The
table of contents and the titles and headings of the articles
and sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions
hereof.
Section 15.09. Execution in Counterparts. This Inden-
ture 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 15.10. Manner of Mailing Notice to
Noteholders. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the
Trustee or the Company to or on the holders of Notes, as the case
may be, shall be given or served by first-class mail, postage
prepaid, addressed to the holders of such Notes at their last
addresses as the same appear on the Note register referred to in
Section 2.06, and any such notice shall be deemed to be given or
served by being deposited in a post office letter box in the form
and manner provided in this Section 15.10.
In Witness Whereof, Kansas City Power & Light Company
has caused this Indenture to be signed and acknowledged by its
Senior Vice President-Finance and Business Development, and its
corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or an Assistant Secretary, and The Bank
of New York has caused this Indenture to be signed and acknowl-
edged by one of its Assistant Vice Presidents and its corporate
seal to be affixed hereunto, and the same to be attested by one
of its Assistant Treasurers, as of the day and year first written
above.
KANSAS CITY POWER & LIGHT COMPANY
By_______________________________
Bernard J. Beaudoin
Senior Vice President-Finance
and Business Development
Attest:
__________________________
Jeanie Sell Latz
Secretary
[Seal)
THE BANK OF NEW YORK, as Trustee
By_________________________
Assistant Vice President
Attest:
__________________________
Assistant Treasurer
[Seal]
STATE OF MISSOURI )
) ss:
COUNTY OF JACKSON )
I, ________________________, a Notary Public in and for
said County and State aforesaid, do hereby certify that Bernard
J. Beaudoin of Kansas City Power & Light Company, a Missouri
corporation and Jeanie Sell Latz of said corporation, who are
personally known to me to be the same persons whose names are
subscribed to the foregoing instrument and who are both
personally known to me to be Senior Vice President-Finance and
Business Development and Secretary of said corporation, appeared
before me this day in person and severally acknowledged that they
this day signed, sealed and delivered the said instrument as
their free and voluntary act as such Senior Vice President-
Finance and Business Development and Secretary, respectively, of
said corporation and as the free and voluntary act of said
corporation, for the uses and purposes therein set forth, and
that the seal affixed to said instrument is the corporate seal of
said corporation and that the said instrument was executed,
signed, sealed and delivered on behalf of said corporation by
authority of its Board of Directors, and acknowledged said
instrument to be the free and voluntary act and deed of said
corporation.
GIVEN under my hand and notarial seal this __________
day of November, 1994.
_______________________________
My commission expires:
STATE OF _______ )
) ss:
COUNTY OF ______ )
I, _____________________________, a Notary Public in
and for said County and State aforesaid, do hereby certify that
_________________________________ of The Bank of New York, a
corporation organized and existing under the laws of the State of
New York, and ____________________, of said corporation, who are
personally known to me to be the same persons whose names are
subscribed to the foregoing instrument and who are both
personally known to me to be an Assistant Vice President and
Assistant Treasurer of said corporation, appeared before me this
day in person and severally acknowledged that they this day
signed, sealed and delivered the said instrument as their free
and voluntary act as such an Assistant Vice President and
Assistant Treasurer, respectively, of said corporation, and as
the free and voluntary act of said corporation, for the uses and
purposes therein set forth, and that the seal affixed to said
instrument is the corporate seal of said corporation and that the
said instrument was executed, signed, sealed and delivered on
behalf of said corporation by authority of its By-laws, and
acknowledged said instrument to be the free and voluntary act and
deed of said corporation.
GIVEN under my hand and notarial seal this _____ day of
November, 1994.
_____________________________
Notary Public
My commission expires:
EXHIBIT A
Bond of Tenth Series
See attached.
EXHIBIT B
Global Fixed Rate Note
Registered REGISTERED
NO.
KANSAS CITY POWER & LIGHT COMPANY
Fixed Rate
Secured Medium-Term Note
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE
DEPOSITARY (REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
NOTES REPRESENTED HEREBY, THIS GLOBAL NOTE 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
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
CUSIP: PRINCIPAL AMOUNT:
$
ORIGINAL ISSUE DATES: MATURITY DATE:
INTEREST RATE: REDEMPTION DATE:
INTEREST PAYMENT DATES:
Kansas City Power & Light Company, a Missouri
corporation (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse
hereof) for value received hereby promises to pay to
or registered assigns the principal sum of
DOLLARS
on the Maturity Date set forth above and to pay interest thereon
from the Original Issue Date (or if this Global Note has two or
more Original Issue Dates, interest shall, beginning on each such
Original Issue Date, begin to accrue for that part of the
principal amount to which such Original Issue Date is applicable)
set forth above, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually
in arrears on the Interest Payment Dates set forth above in each
year commencing on (a) the first such Interest Payment Date next
succeeding the earliest Original Issue Date or Dates set forth
above, or (b) if such Original Issue Date is after a Record Date
and prior to the first Interest Payment Date, on the second
Interest Payment Date, at the per annum Interest Rate set forth
above until the principal hereof is paid or made available for
payment. 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 Person in whose name this Note is
registered at the close of business on the Record Date for such
Interest Payment Date, which shall be the date fifteen calendar
days (whether or not a Business Day) preceding such Interest
Payment Date, provided, however, that if an Original Issue Date
falls between a Record Date and an Interest Payment Date, the
first payment of interest with respect to such Original Issue
Date will be paid on the second Interest Payment Date subsequent
to such Original Issue Date to the Person in whose name this Note
is registered at the close of business on the Record Date for
such second Interest Payment Date, and provided further, that
interest payable on the Maturity date or, if applicable, upon
redemption, shall be payable to the Person to whom principal
shall be payable. Except as otherwise provided in the Indenture,
any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the holder on such Record
Date and shall be paid to the Person in whose name this Note is
registered at the close of business on a Record Date for the
payment of such defaulted interest to be fixed by the Company,
notice whereof shall be given to Noteholders not less than
fifteen days prior to such Record Date. Payment of the principal
of and any premium and interest on this Note will be made at the
Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York, or such other office or agency
of the Company as may be designated by it for such purpose, 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, provided, however, that at the option of the Company,
payment of interest may be made by United States dollar check
mailed to the address of the Person entitled thereto as such
address shall appear in the Note Register.
Under certain circumstances, this Global Note is
exchangeable in whole or from time to time in part for a
definitive Note or Notes, with the same Original Issue Date or
Dates, Maturity Date, Interest Rate and redemption provisions as
provided herein or in the Indenture.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS GLOBAL NOTE SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH
FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has
executed by the Trustee referred to on the reverse hereof,
directly or through an Authenticating Agent, by manual signature
of an authorized signatory, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated
[SEAL]
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
Kansas City Power & Light
Company
This is one of the notes designated
therein referred to in the within- By
mentioned Indenture President
THE BANK OF NEW YORK, as Trustee
By Attest
Authorized Signatory Secretary
KANSAS CITY POWER & LIGHT COMPANY
SECURED MEDIUM-TERM NOTE
This Global Note is one of, and a global security which
represents Notes which are part of, a duly authorized issue of
Notes of the Company (herein called the "Notes"), issued and to
be issued under an Indenture dated as of November 1, 1994 (herein
called the "Indenture") between the Company and The Bank of New
York, 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 Noteholders, and of the terms upon which the
Notes are, and are to be, authenticated and delivered. The Notes
are limited to $125,000,000 aggregate principal amount.
This Global Note is secured by a Mortgage Bond pledged
by the Company to the Trustee for the benefit of the holders of
the Notes. The Mortgage Bond is issued by the Company under, and
the Mortgage Bond is secured by, a General Mortgage Indenture and
Deed of Trust dated as of December 1, 1986, duly executed by the
Company to United Missouri Bank of Kansas City, N.A., Trustee, to
which General Mortgage Indenture and Deed of Trust and all
indentures supplemental thereto reference is hereby made for a
description of the property mortgaged and pledged, the nature and
extent of the security, the terms and conditions upon which the
Mortgage Bond is issued and secured and the prior liens to which
the security for the Mortgage Bond is junior.
Each Note shall be dated the date of its authentication
by the Trustee. Each Note shall also bear an Original Issue Date
or Dates which with respect to this Global Note (or any portion
thereof), shall mean the date or dates of the original issue of
the Notes represented hereby as specified on the face hereof, and
such Original Issue Date or Dates shall remain the same for all
Notes subsequently issued upon transfer, exchange, or
substitution of such original Note (or such subsequently issued
Notes) regardless of their dates of authentication.
This Global Note may not be redeemed prior to the
Redemption Date set forth on the face hereof. If no Redemption
Date is so set forth, this Global Note is not redeemable prior to
its maturity. On or after the Redemption Date set forth on the
face hereof this Note is redeemable in whole or in part in
increments of $1,000 (provided that any remaining principal
amount of this note shall be at least $1,000) at the option of
the Company at the following redemption prices (expressed as
percentages of the principal amount to be redeemed) together with
interest thereon payable to the date of redemption:
Redemption Periods Redemption Prices
Notice of redemption will be given by mail to Holders of Notes
not less than 30 nor more than 60 days prior to the date fixed
for redemption all as provided in the Indenture. In the event of
redemption of this Global Note in part only, a new Global Note or
Notes and of like tenor for the unredeemed portion hereof will be
issued in the name of the Noteholder hereof upon the surrender
hereof.
This Global Note will not be entitled to the benefit of
a sinking fund.
Interest payments on this Global Note will include
Accrued Interest to but excluding the Interest Payment Date.
Interest payments on this Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months.
The Company at its option, subject to the terms and
conditions provided in the Indenture, will be discharged from any
and all obligations in respect of the Notes (except for certain
obligations including obligations to register the transfer or
exchange of Notes, replace stolen, lost or mutilated Notes,
maintain paying agencies and hold monies for payment in trust),
91 days after the Company deposits with the Trustee money or U.S.
Government Obligations which through the payment of interest
thereon and principal thereof in accordance with their terms will
provide money, or a combination of money and U.S. Government
Obligations, in an amount sufficient to pay all the principal of
and any premium and interest on the Notes on the dates such
payments are due in accordance with the terms of the Notes.
If an Event of Default with respect to Notes shall
occur and be continuing, the principal of the Notes 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
Noteholders 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 a majority in principal amount of the outstanding Notes
affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority in principal
amount of the outstanding Notes affected thereby, on behalf of
the holders of all Notes, to waive compliance by the Company with
certain provisions of the Indenture. The Indenture also provides
that the holders of not less than a majority in principal amount
of the outstanding Notes may waive certain past defaults and
their consequences on behalf of the holders of all Notes. Any
such consent or waiver by the holder of this Global Note shall be
conclusive and binding upon such holder and upon all future
holders of this Global Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Global Note or such Note.
As set forth in, and subject to, the provisions of the
Indenture, no holder of any Notes will have any right to
institute any proceeding with respect to the Indenture or for any
remedy thereunder, unless such holder shall have previously given
to the Trustee written notice of a continuing Event of Default
with respect to the Notes, the holders of not less than a
majority in principal amount of the outstanding Notes shall have
made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as Trustee, and the Trustee
shall have failed to institute such proceeding within 60 days,
provided, however, that such limitations do not apply to a suit
instituted by the holder hereof for the enforcement of payment of
the principal of and any premium or interest on this Global Note
on or after the respective due dates expressed herein.
As provided in the Indenture and subject to certain
limitations therein set forth, this Global Note may be
transferred, in whole but not in part, only by the Depositary to
a nominee of the Depositary, or by a nominee of the Depositary to
another nominee or the Depositary or by the Depositary or any
such nominee to a successor Depositary for this Global Note
selected or approved by the Company or to a nominee of such
successor Depositary.
If at any time the Depositary for this Global Note
notifies the Company that it is unwilling or unable to continue
as Depositary for this Global Note or if at any time the
Depositary for this Global Note shall no longer be eligible or in
good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to this Global
Note. If a successor Depositary for this Global Note is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the
Company's election to issue this Note in global form shall no
longer be effective with respect to this Global Note and the
Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Notes in
exchange for this Global Note, will authenticate and deliver
individual Notes of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such
Global Note or Notes in exchange for such Global Note or Notes.
If specified by the Company and agreed by the
Depositary with respect to Notes issued in the form of a Global
Note, the Depositary for such Global Note shall surrender such
Global Note in exchange in whole or in part for individual Notes
of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depositary. Thereupon the
Company shall execute, and the Trustee shall authenticate and
deliver, without service charge, (1) to each Person specified by
such Depositary, a new Note or Notes of like tenor and terms and
of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for
beneficial interest of such Person in such Global Note; and (2)
to such Depositary a new Global Note of like tenor and terms and
in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Note and the aggregate
principal amount of Notes delivered to Holders thereof.
Under certain circumstances specified in the Indenture,
the Depositary may be required to surrender any two or more
Global Notes which have identical terms (but which may have
differing Original Issue Dates) to the Trustee, and the Company
shall execute and the Trustee shall authenticate and deliver to,
or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all
terms identical to, the Global Notes surrendered thereto and
which shall indicate all Original Dates and the principal amount
applicable to each such Original Issue Date.
No reference herein to the Indenture and no provision
of this Global Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this Note
at the times, places and rates, and in the coin or currency,
herein prescribed.
Prior to due presentment of this Global Note for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
this Global Note is registered as the owner hereof for all
purposes, whether or not this Global Note is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in the Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the
face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIT GIFT
MIN ACT - _____Custodian_____
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common ___________________
State
Additional abbreviations may also be used though not in
the above list.
______________________
FOR VALUE RECEIVED the undersigned hereby sell(s)
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
_______________________________________
_________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_________________________________________________________________
the within note and all rights thereunder, hereby irrevocably
constituting and appointing _____________________________________
_______________________ attorney to transfer said note on the
books of the Company, with full power of substitution in the
premises.
Dated:____________________
___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
EXHIBIT C Fixed Rate Note
Registered REGISTERED
NO.
KANSAS CITY POWER & LIGHT COMPANY
Fixed Rate
Secured Medium-Term Note
CUSIP: PRINCIPAL AMOUNT:
$
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: REDEMPTION DATE:
INTEREST PAYMENT DATES:
Kansas City Power & Light Company, a Missouri
corporation (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse
hereof) for value received hereby promises to pay to
or registered assigns the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon
from the Original Issue Date set forth above, or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually in arrears on the Interest
Payment Dates set forth above in each year, commencing on (a) the
first such Interest Payment Date next succeeding the Original
Issue Date set forth above, or (b) if such Original Issue Date is
after a Record Date and prior to the first Interest Payment Date,
on the second Interest Payment Date, at the per annum Interest
Rate set forth above until the principal hereof is paid or made
available for payment. 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 Person in whose name
this Note is registered at the close of business on the Record
Date for such Interest Payment Date, which shall be the date
fifteen calendar days (whether or not a Business Day) preceding
such Interest Payment Date, provided, however that if the
Original issue Date falls between a Record Date and an Interest
Payment Date, the first payment of interest will be paid on the
second Interest Payment Date subsequent to such Original Issue
Date to the Person in whose name this Note is registered at the
close of business on the Record Date for such second Interest
Payment Date, and provided further, that interest payable on the
Maturity Date, or if applicable, upon redemption, shall be
payable to the Person to whom principal shall be payable. Except
as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for will forthwith cease to be
payable to the holder on such Record Date and shall be paid to
the Person in whose name this Note is registered at the close of
business on a Record Date for the payment of such defaulted
interest to be fixed by the Company, notice whereof shall be
given to Noteholders not less than fifteen days prior to such
Record Date. Payment of the principal of and any premium and
interest on this Note will be made at the Corporate Trust Office
of the Trustee in the Borough of Manhattan, The City of New York,
or such other office or agency of the Company as may be
designated by it for such purpose, in such coin or currency of
the United States of America as at the time of payment is legal
lender for payment of public and private debts, provided,
however, that at the option of the Company, payment of interest
may be made by United States dollar check mailed to the address
of the Person entitled thereto as such address shall appear in
the Security Register.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS NOTE SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET
FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has
executed by the Trustee referred to on the reverse hereof,
directly or through an Authenticating Agent, by manual signature
of an authorized signatory, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal
Dated
[SEAL]
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
Kansas City Power & Light
Company
This is one of the notes designated
therein referred to in the within- By
mentioned Indenture President
THE BANK OF NEW YORK, as Trustee
By Attest
Authorized Signatory Secretary
KANSAS CITY POWER & LIGHT COMPANY
SECURED MEDIUM-TERM NOTE
This Note is one of a duly authorized issue of Notes of
the Company (herein called the "Notes"), issued and to be issued
under an Indenture dated as of November 1, 1994 (herein called
the "Indenture") between the Company and The Bank of New York, 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 Noteholders, and of the terms upon which the Notes are, and
are to be, authenticated and delivered. The Notes are limited to
$125,000,000 aggregate principal amount.
This Note is secured by a Mortgage Bond pledged by the
Company to the Trustee for the benefit of the holders of the
Notes. The Mortgage Bond is issued by the Company under, and the
Mortgage Bond is secured by, a General Mortgage Indenture and
Deed of Trust dated as of December 1, 1986, duly executed by the
Company to United Missouri Bank of Kansas City, N.A., Trustee, to
which General Mortgage Indenture and Deed of Trust and all
indentures supplemental thereto reference is hereby made for a
description of the property mortgaged and pledged, the nature and
extent of the security, the terms and conditions upon which the
Mortgage Bond is issued and secured and the prior liens to which
the security for the Mortgage Bond is junior.
Each Note shall be dated the date of its authentication
by the Trustee. Each Note shall also bear an Original Issue Date
which with respect to this Note (or any portion thereof), shall
mean the date of its original issue as specified on the face
hereof, and such Original Issue Date shall remain the same for
all Notes subsequently issued upon transfer, exchange or
substitution of such original Note (or such subsequently issued
Notes) regardless of their dates of authentication.
This Note may not be redeemed prior to the Redemption
Date set forth on the face hereof. If no Redemption Date is so
set forth, this Note is not redeemable prior to its maturity. On
or after the Redemption Date set forth on the face hereof this
Note is redeemable in whole or in part in increments of $1,000
(provided that any remaining principal amount of this note shall
be at least $1,000) at the option of the Company at the following
redemption prices (expressed as percentages of the principal
amount to be redeemed) together with interest thereon payable to
the date of redemption:
Redemption Periods Redemption Prices
Notice of redemption will be given by mail to Holders of Notes
not less than 30 nor more than 60 days prior to the date fixed
for redemption, all as provided in the Indenture. In the event
of redemption of this Note in part only, a new Note or Notes and
of like tenor for the unredeemed portion hereof will be issued in
the name of the Noteholder hereof upon the surrender hereof.
This Note will not be entitled to the benefit of a
sinking fund.
Interest payments on this Note will include Accrued
Interest to but excluding the Interest Payment Date. Interest
payments on this Note shall be computed and paid on the basis of
a 360-day year of twelve 30-day months.
The Company at its option, subject to the terms and
conditions provided in the Indenture, will be discharged from any
and all obligations in respect of the Notes (except for certain
obligations including obligations to register the transfer or
exchange of Notes, replace stolen, lost or mutilated Notes,
maintain paying agencies and hold monies for payment in trust),
91 days after the Company deposits with the Trustee money or U.S.
Government Obligations which through the payment of interest
thereon and principal thereof in accordance with their terms will
provide money, or a combination of money and U.S. Government
Obligations, in an amount sufficient to pay all the principal of
and any premium and interest on the Notes on the dates such
payments are due in accordance with the terms of the Notes.
If an Event of Default with respect to Notes shall
occur and be continuing, the principal of the Notes 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
Noteholders 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 a majority in principal amount of the outstanding Notes
affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority in principal
amount of the outstanding Notes affected thereby, on behalf of
the holders of all Notes, to waive compliance by the Company with
certain provisions of the Indenture. The Indenture also provides
that the holders of not less than a majority in principal amount
of the outstanding Notes may waive certain past defaults and
their consequences on behalf of the holders of all Notes. Any
such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future
holders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon
this Note or such Note.
As set forth in, and subject to, the provisions of the
Indenture, no holder of any Notes will have any right to
institute any proceeding with respect to the Indenture or for any
remedy thereunder, unless such holder shall have previously given
to the Trustee written notice of a continuing Event of Default
with respect to the Notes, the holders of not less than a
majority in principal amount of the outstanding Notes shall have
made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as Trustee, and the Trustee
shall have failed to institute such proceeding within 60 days,
provided, however, that such limitations do not apply to a suit
instituted by the holder hereof for the enforcement of payment of
the principal of and any premium or interest on this Note on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this Note
at the times, places and rates, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registrable in the Note Register. Upon surrender of this Note
for registration of transfer at the Corporate Trust Office of the
Trustee or such other office or agency as may be designated by it
in the Borough of Manhattan, The City of New York, duly endorsed
by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note registrar duly executed
by the holder hereof or the attorney of such holder duly
authorized in writing, and thereupon one or more new Notes of
like tenor,of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple of
$1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of
like tenor of a different authorized donomination, 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 Note for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether
or not this Note is overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in the Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the
face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIT GIFT
MIN ACT - _____Custodian_____
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common ___________________
State
Additional abbreviations may also be used though not in
the above list.
______________________
FOR VALUE RECEIVED the undersigned hereby sell(s)
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
_______________________________________
_________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_________________________________________________________________
the within note and all rights thereunder, hereby irrevocably
constituting and appointing _____________________________________
_______________________ attorney to transfer said note on the
books of the Company, with full power of substitution in the
premises.
Dated:____________________
___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
EXHIBIT D
Global Floating Rate Note
Registered REGISTERED
NO.
KANSAS CITY POWER & LIGHT COMPANY
Floating Rate
Secured Medium-Term Note
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE
DEPOSITARY (REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
NOTES REPRESENTED HEREBY, THIS GLOBAL NOTE 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
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
CUSIP: Principal Amount: $
Original Issue Dates: Maturity Date:
Base Rate: Maximum Interest Rate:
Index Maturity: Minimum Interest Rate:
Interest Payment Dates: Redemption Date:
Initial Interest Rate: Spread:
Initial Interest Reset Date: Spread Multiplier: + or -
Interest Reset Dates:
Kansas City Power & Light Company, a Missouri
corporation (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse
hereof) for value received hereby promises to pay to
or registered assigns the principal sum of
DOLLARS
on the Maturity Date set forth above and to pay interest thereon
from the Original Issue Date (or if this Global Note has two or
more Original Issue Dates, interest shall, beginning on each such
Original Issue Date, begin to accrue for that part of the
principal amount to which such Original Issue Date is applicable)
set forth above, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, monthly,
quarterly, semiannually or annually as specified above under
Interest Payment Period, on the Interest Payment Dates specified
above, commencing on (a) the first such Interest Payment Date
next succeeding the earliest Original Issue Date or Dates set
forth above, or (b) if such Original Issue Date is after a Record
Date and prior to the first Interest Payment Date, on the second
Interest Payment Date, and at Maturity, at a rate per annum equal
to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above, and thereafter at a rate per
annum determined in accordance with the provisions in the
Indenture for calculating the Interest Rate for Notes having the
Base Rate specified above, until the principal hereof is paid or
made available for payment. 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 Person in
whose name this Note is registered at the close of business on
the Record Date for such Interest Payment Date, which shall be
the fifteenth day (whether or not a Business Day) next preceding
such Interest Payment Date provided, however, that if an Original
Issue Date falls between a Record Date and an Interest Payment
Date, the first payment of interest with respect to such Original
Issue Date will be paid on the second Interest Payment Date
subsequent to such Original Issue Date to the Person in whose
name this Note is registered at the close of business on the
Record Date for such second Interest Payment Date, and provided
further, that interest payable on the Maturity Date or, if
applicable, upon redemption, shall be payable to the Person to
whom principal shall be payable. Except as otherwise provided in
the Indenture, any such interest not so punctually paid or dully
provided for will forthwith cease to be payable to the holder on
such Record Date and shall be paid to the Person in whose name
this Note is registered at the close of business on a Record Date
for the payment of such defaulted interest to be fixed by the
Company, notice whereof shall be given to Noteholders not less
than fifteen days prior to such Record Date. Payment of the
principal of and any premium and interest on this Note will be
made at the Corporate Trust Office of the Trustee in the Borough
of Manhattan, The City of New York, or such other office or
agency of the Company as may be designated by it for such
purpose, in such coin or currency of the United States of America
as at the time of payment is legal lender for payment of public
and private debts, provided, however, that at the option of the
Company, payment of interest may be made by United States dollar
check mailed to the address of the Person entitled thereto as
such address shall appear in the Note Register.
Under certain circumstances, this Global Note is
exchangeable in whole or from time to time in part for a
definitive Note or Notes, with the same Original Issue Date or
Dates, Maturity Date, Interest Rate and redemption provisions as
provided herein or in the Indenture.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS GLOBAL NOTE SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH
FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has
executed by the Trustee referred to on the reverse hereof,
directly or through an Authenticating Agent, by manual signature
of an authorized signatory, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated
[SEAL]
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
Kansas City Power & Light
Company
This is one of the notes designated
therein referred to in the within- By
mentioned Indenture President
THE BANK OF NEW YORK, as Trustee
By Attest
Authorized Signatory Secretary
KANSAS CITY POWER & LIGHT COMPANY
SECURED MEDIUM-TERM NOTE
This Global Note is one of, and a global security which
represents Notes which are part of, a duly authorized issue of
Notes of the Company (herein called the "Notes"), issued and to
be issued under an Indenture dated as of November 1, 1994 (herein
called the "Indenture") between the Company and The Bank of New
York, 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 Noteholders, and of the terms upon which the
Notes are, and are to be, authenticated and delivered. The Notes
are limited to $125,000,000 aggregate principal amount.
This Global Note is secured by a Mortgage Bond pledged
by the Company to the Trustee for the benefit of the holders of
the Notes. The Mortgage Bond is issued by the Company under, and
the Mortgage Bond is secured by, a General Mortgage Indenture and
Deed of Trust dated as of December 1, 1986, duly executed by the
Company to United Missouri Bank of Kansas City, N.A., Trustee, to
which General Mortgage Indenture and Deed of Trust and all
indentures supplemental thereto reference is hereby made for a
description of the property mortgaged and pledged, the nature and
extent of the security, the terms and conditions upon which the
Mortgage Bond is issued and secured and the prior liens to which
the security for the Mortgage Bond is junior.
Each Note shall be dated the date of its authentication
by the Trustee. Each Note shall also bear an Original Issue Date
or Dates which with respect to this Global Note (or any portion
thereof), shall mean the date or dates of the original issue of
the Notes represented hereby as specified on the face hereof, and
such Original Issue Date or Dates shall remain the same for all
Notes subsequently issued upon transfer, exchange, or
substitution of such original Note (or such subsequently issued
Notes) regardless of their dates of authentication.
This Global Note may not be redeemed prior to the
Redemption Date set forth on the face hereof. If no Redemption
Date is so set forth, this Global Note is not redeemable prior to
its maturity. On or after the Redemption Date set forth on the
face hereof this Note is redeemable in whole or in part in
increments of $1,000 (provided that any remaining principal
amount of this note shall be at least $1,000) at the option of
the Company at the following redemption prices (expressed as
percentages of the principal amount to be redeemed) together with
interest thereon payable to the date of redemption:
Redemption Periods Redemption Prices
Notice of redemption will be given by mail to Holders of Notes
not less than 30 nor more than 60 days prior to the date fixed
for redemption all as provided in the Indenture. In the event of
redemption of this Global Note in part only, a new Global Note or
Notes and of like tenor for the unredeemed portion hereof will be
issued in the name of the Noteholder hereof upon the surrender
hereof.
This Global Note will not be entitled to the benefit of
a sinking fund.
The Company at its option, subject to the terms and
conditions provided in the Indenture, will be discharged from any
and all obligations in respect of the Notes (except for certain
obligations including obligations to register the transfer or
exchange of Notes, replace stolen, lost or mutilated Notes,
maintain paying agencies and hold monies for payment in trust),
91 days after the Company deposits with the Trustee money or U.S.
Government Obligations which through the payment of interest
thereon and principal thereof in accordance with their terms will
provide money, or a combination of money and U.S. Government
Obligations, in an amount sufficient to pay all the principal of
and any premium and interest on the Notes on the dates such
payments are due in accordance with the terms of the Notes.
If an Event of Default with respect to Notes shall
occur and be continuing, the principal of the Notes 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
Noteholders 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 a majority in principal amount of the outstanding Notes
affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority in principal
amount of the outstanding Notes affected thereby, on behalf of
the holders of all Notes, to waive compliance by the Company with
certain provisions of the Indenture. The Indenture also provides
that the holders of not less than a majority in principal amount
of the outstanding Notes may waive certain past defaults and
their consequences on behalf of the holders of all Notes. Any
such consent or waiver by the holder of this Global Note shall be
conclusive and binding upon such holder and upon all future
holders of this Global Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Global Note or such Note.
As set forth in, and subject to, the provisions of the
Indenture, no holder of any Notes will have any right to
institute any proceeding with respect to the Indenture or for any
remedy thereunder, unless such holder shall have previously given
to the Trustee written notice of a continuing Event of Default
with respect to the Notes, the holders of not less than a
majority in principal amount of the outstanding Notes shall have
made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as Trustee, and the Trustee
shall have failed to institute such proceeding within 60 days,
provided, however, that such limitations do not apply to a suit
instituted by the holder hereof for the enforcement of payment of
the principal of and any premium or interest on this Global Note
on or after the respective due dates expressed herein.
As provided in the Indenture and subject to certain
limitations therein set forth, this Global Note may be
transferred, in whole but not in part, only by the Depositary to
a nominee of the Depositary, or by a nominee of the Depositary to
another nominee or the Depositary or by the Depositary or any
such nominee to a successor Depositary for this Global Note
selected or approved by the Company or to a nominee of such
successor Depositary.
If at any time the Depositary for this Global Note
notifies the Company that it is unwilling or unable to continue
as Depositary for this Global Note or if at any time the
Depositary for this Global Note shall no longer be eligible or in
good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to this Global
Note. If a successor Depositary for this Global Note is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the
Company's election to issue this Note in global form shall no
longer be effective with respect to this Global Note and the
Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Notes in
exchange for this Global Note, will authenticate and deliver
individual Notes of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such
Global Note or Notes in exchange for such Global Note or Notes.
If specified by the Company and agreed by the
Depositary with respect to Notes issued in the form of a Global
Note, the Depositary for such Global Note shall surrender such
Global Note in exchange in whole or in part for individual Notes
of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depositary. Thereupon the
Company shall execute, and the Trustee shall authenticate and
deliver, without service charge, (1) to each Person specified by
such Depositary, a new Note or Notes of like tenor and terms and
of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for
beneficial interest of such Person in such Global Note; and (2)
to such Depositary a new Global Note of like tenor and terms and
in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Note and the aggregate
principal amount of Notes delivered to Holders thereof.
Under certain circumstances specified in the Indenture,
the Depositary may be required to surrender any two or more
Global Notes which have identical terms (but which may have
differing Original Issue Dates) to the Trustee, and the Company
shall execute and the Trustee shall authenticate and deliver to,
or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all
terms identical to, the Global Notes surrendered thereto and
which shall indicate all Original Dates and the principal amount
applicable to each such Original Issue Date.
No reference herein to the Indenture and no provision
of this Global Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this Note
at the times, places and rates, and in the coin or currency,
herein prescribed.
Prior to due presentment of this Global Note for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
this Global Note is registered as the owner hereof for all
purposes, whether or not this Global Note is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in the Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the
face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIT GIFT
MIN ACT - _____Custodian_____
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common ___________________
State
Additional abbreviations may also be used though not in
the above list.
______________________
FOR VALUE RECEIVED the undersigned hereby sell(s)
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
_______________________________________
_________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_________________________________________________________________
the within note and all rights thereunder, hereby irrevocably
constituting and appointing _____________________________________
_______________________ attorney to transfer said note on the
books of the Company, with full power of substitution in the
premises.
Dated:____________________
___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
EXHIBIT E
Floating Rate Note
Registered REGISTERED
NO.
KANSAS CITY POWER & LIGHT COMPANY
Floating Rate
Secured Medium-Term Note
CUSIP: Principal Amount: $
Original Issue Dates: Maturity Date:
Base Rate: Maximum Interest Rate:
Index Maturity: Minimum Interest Rate:
Interest Payment Dates: Redemption Date:
Initial Interest Rate: Spread:
Initial Interest Reset Date: Spread Multiplier: + or -
Interest Reset Dates:
Kansas City Power & Light Company, a Missouri
corporation (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse
hereof) for value received hereby promises to pay to
or registered assigns the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon
from the Original Issue Date set forth above, or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for, monthly, quarterly, semiannually or annually
as specified above under Interest Payment Period, on the Interest
Payment Dates specified above, commencing on (a) the first such
Interest Payment Date next succeeding the Original Issue Date or
Dates set forth above or (b) if such Original Issue Date is after
a Record Date and prior to the first Interest Payment Date, on
the second Interest Payment Date, and at maturity, at a rate per
annum equal to the Initial Interest Rate specified above until
the Initial Interest Rate Reset Date specified above, and
thereafter at a rate per annum determined in accordance with the
provisions in the Indenture for calculating the Interest Rate for
Notes having the Base Rate specified above, until the principal
hereof is paid or made available for payment. 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
Person in whose name this Note is registered at the close of
business on the Record Date for such interest which shall be the
fifteenth day (whether or not a Business Day), next preceding
such Interest Payment Date provided, however that if the Original
Issue Date falls between a Record Date and an Interest Payment
Date, the first payment of interest will be paid on the second
Interest Payment Date subsequent to such Original Issue Date to
the Person in whose name this Note is registered at the close of
business on the Record Date for such second Interest Payment
Date, and provided further, that interest payable on the Maturity
Date, or, if applicable, upon redemption, shall be payable to the
Person to whom principal shall be payable. Except as otherwise
provided in the Indenture, any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to
the holder on such Record Date and shall be paid to the Person in
whose name this Note is registered at the close of business on a
Record Date for the payment of such defaulted interest to be
fixed by the Company, notice whereof shall be given to
Noteholders not less than fifteen days prior to such Record Date.
Payment of the principal of and any premium and interest on this
Note will be made at the Corporate Trust Office of the Trustee in
the Borough of Manhattan, The City of New York, or such other
office or agency of the Company as may be designated by it for
such purpose, 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, provided, however, that at the option
of the Company, payment of interest may be made by United States
dollar check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS NOTE SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET
FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has
executed by the Trustee referred to on the reverse hereof,
directly or through an Authenticating Agent, by manual signature
of an authorized signatory, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal
Dated
[SEAL]
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
Kansas City Power & Light
Company
This is one of the notes designated
therein referred to in the within- By
mentioned Indenture President
THE BANK OF NEW YORK, as Trustee
By Attest
Authorized Signatory Secretary
KANSAS CITY POWER & LIGHT COMPANY
SECURED MEDIUM-TERM NOTE
This Note is one of a duly authorized issue of Notes of
the Company (herein called the "Notes"), issued and to be issued
under an Indenture dated as of November 1, 1994 (herein called
the "Indenture") between the Company and The Bank of New York, 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 Noteholders, and of the terms upon which the Notes are, and
are to be, authenticated and delivered. The Notes are limited to
$125,000,000 aggregate principal amount.
This Note is secured by a Mortgage Bond pledged by the
Company to the Trustee for the benefit of the holders of the
Notes. The Mortgage Bond is issued by the Company under, and the
Mortgage Bond is secured by, a General Mortgage Indenture and
Deed of Trust dated as of December 1, 1986, duly executed by the
Company to United Missouri Bank of Kansas City, N.A., Trustee, to
which General Mortgage Indenture and Deed of Trust and all
indentures supplemental thereto reference is hereby made for a
description of the property mortgaged and pledged, the nature and
extent of the security, the terms and conditions upon which the
Mortgage Bond is issued and secured and the prior liens to which
the security for the Mortgage Bond is junior.
Each Note shall be dated the date of its authentication
by the Trustee. Each Note shall also bear an Original Issue Date
which with respect to this Note (or any portion thereof), shall
mean the date of its original issue as specified on the face
hereof, and such Original Issue Date shall remain the same for
all Notes subsequently issued upon transfer, exchange or
substitution of such original Note (or such subsequently issued
Notes) regardless of their dates of authentication.
This Note may not be redeemed prior to the Redemption
Date set forth on the face hereof. If no Redemption Date is so
set forth, this Note is not redeemable prior to its maturity. On
or after the Redemption Date set forth on the face hereof this
Note is redeemable in whole or in part in increments of $1,000
(provided that any remaining principal amount of this note shall
be at least $1,000) at the option of the Company at the following
redemption prices (expressed as percentages of the principal
amount to be redeemed) together with interest thereon payable to
the date of redemption:
Redemption Periods Redemption Prices
Notice of redemption will be given by mail to Holders of Notes
not less than 30 nor more than 60 days prior to the date fixed
for redemption, all as provided in the Indenture. In the event
of redemption of this Note in part only, a new Note or Notes and
of like tenor for the unredeemed portion hereof will be issued in
the name of the Noteholder hereof upon the surrender hereof.
This Note will not be entitled to the benefit of a
sinking fund.
The Company at its option, subject to the terms and
conditions provided in the Indenture, will be discharged from any
and all obligations in respect of the Notes (except for certain
obligations including obligations to register the transfer or
exchange of Notes, replace stolen, lost or mutilated Notes,
maintain paying agencies and hold monies for payment in trust),
91 days after the Company deposits with the Trustee money or U.S.
Government Obligations which through the payment of interest
thereon and principal thereof in accordance with their terms will
provide money, or a combination of money and U.S. Government
Obligations, in an amount sufficient to pay all the principal of
and any premium and interest on the Notes on the dates such
payments are due in accordance with the terms of the Notes.
If an Event of Default with respect to Notes shall
occur and be continuing, the principal of the Notes 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
Noteholders 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 a majority in principal amount of the outstanding Notes
affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority in principal
amount of the outstanding Notes affected thereby, on behalf of
the holders of all Notes, to waive compliance by the Company with
certain provisions of the Indenture. The Indenture also provides
that the holders of not less than a majority in principal amount
of the outstanding Notes may waive certain past defaults and
their consequences on behalf of the holders of all Notes. Any
such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future
holders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon
this Note or such Note.
As set forth in, and subject to, the provisions of the
Indenture, no holder of any Notes will have any right to
institute any proceeding with respect to the Indenture or for any
remedy thereunder, unless such holder shall have previously given
to the Trustee written notice of a continuing Event of Default
with respect to the Notes, the holders of not less than a
majority in principal amount of the outstanding Notes shall have
made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as Trustee, and the Trustee
shall have failed to institute such proceeding within 60 days,
provided, however, that such limitations do not apply to a suit
instituted by the holder hereof for the enforcement of payment of
the principal of and any premium or interest on this Note on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this Note
at the times, places and rates, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registrable in the Note Register. Upon surrender of this Note
for registration of transfer at the Corporate Trust Office of the
Trustee or such other office or agency as may be designated by it
in the Borough of Manhattan, The City of New York, duly endorsed
by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note registrar duly executed
by the holder hereof or the attorney of such holder duly
authorized in writing, and thereupon one or more new Notes of
like tenor,of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple of
$1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of
like tenor of a different authorized donomination, 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 Note for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether
or not this Note is overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in the Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the
face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIT GIFT
MIN ACT - _____Custodian_____
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common ___________________
State
Additional abbreviations may also be used though not in
the above list.
______________________
FOR VALUE RECEIVED the undersigned hereby sell(s)
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
_______________________________________
_________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_________________________________________________________________
the within note and all rights thereunder, hereby irrevocably
constituting and appointing _____________________________________
_______________________ attorney to transfer said note on the
books of the Company, with full power of substitution in the
premises.
Dated:____________________
___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
November 3, 1994
Kansas City Power & Light Company
1201 Walnut Street
Kansas City, MO 64106
Ladies and Gentlemen:
I refer to the proposed issuance and sale by you of up to $125,000,000 of
Secured Medium-Term Notes (the "Notes") under the Registration Statement
(Form S-3) filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended. The Notes will be secured by the
issuance of the Company's mortgage bond in an amount which will at all
times be equal to the outstanding principal amount of the Notes (the "Pledged
Bond").
I am familiar with the proceedings to date with respect to such records,
documents and matters of law and satisfied myself as to such matters of fact as
I have considered relevant for purposes of this opinion.
I am of the opinion that
1. Kansas City Power & Light Company (the "Company") is a corporation
duly organized and existing under the laws of the State of
Missouri, and duly authorized and qualified to transact the
business in which it is engaged in the States of Missouri and Kansas.
2. The (a) Supplemental Indenture to the General Mortgage Indenture and
Deed of Trust creating the Pledged Bond to secure the Notes
(Exhibit 4-i); and (b) Indenture between the Company and The Bank
of New York creating the Notes (Exhibit 4-j are in due legal form.
3. The proposed forms of (a) the Pledged Bond in Exhibit 4-i and
(b) the Notes in Exhibit 4-j are in due legal form.
Kansas City Power & Light Company
November 3, 1994
Page 2
4. When (a) appropriate regulatory authority has been issued; (b) the
Registration Statement shall have become effective; (c) the
issuance of the Notes and Pledged Bond have been duly authorized
by the Board of Directors of the Company; (d) the indenture for the
Notes and supplemental indenture for the Pledged Bond have
been executed by the proper parties and have been duly recorded;
and (e) the Notes and Pledged Bond have been authenticated and
issued for money paid, labor due, or property actually received,
all in accordance with appropriate regulatory authorizations:
(i) the Notes and Pledged Bond will be legally issued, fully paid,
non-assessable and binding obligations of the Company, with
the express terms and provisions as set forth in the
appropriate indenture and supplemental indenture,
respectively; and
(ii) no approvals, other than those referred to above, will be
required in connection with the creation and issuance of the
Notes and Pledged Bond.
I hereby consent to the use of this opinion as an exhibit to the above-
mentioned Registration Statement.
Sincerely,
/s/ Jeanie Sell Latz
Jeanie Sell Latz
KANSAS CITY POWER & LIGHT COMPANY Exhibit 12
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
Twelve Months Ended Year Ended December 31
September 30, 1994 1993 1992 1991 1990 1989
(Thousands)
Income from continuing
operations $ 104,087 $105,772 $ 86,334 $103,893 $102,732 $108,618
Add:
Taxes on income 63,675 67,953 52,196 60,278 57,062 65,885
Kansas City earnings tax 687 495 382 242 376 390
Total taxes on income 64,362 68,448 52,578 60,520 57,438 66,275
Interest on value of leased
property 7,273 7,273 6,366 5,075 4,357 3,787
Interest on long-term debt 43,247 50,118 54,266 63,057 68,853 78,570
Interest on short-term notes 1,102 750 2,749 3,299 6,199 6,531
Other interest expense
and amortization 4,410 4,113 2,173 2,665 2,492 1,985
Total fixed charges 56,032 62,254 65,554 74,096 81,901 90,873
Earnings before taxes on
income and fixed charges $ 224,481 $236,474 $204,466 $238,509 $242,071 $265,766
Ratio of earnings to
fixed charges 4.01 3.80 3.12 3.22 2.96 2.92
Exhibit 23-a
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
on Form S-3 of our report, which includes an explanatory paragraph on the
Company's change in its method of accounting for incremental nuclear
refueling outage costs in 1992, dated January 28, 1994, included in the
Annual Report on Form 10-K for the fiscal year ended December 31, 1993, on
our audits of the consolidated financial statements and financial statement
schedules of Kansas City Power & Light Company. We also consent to the
reference to our firm under the caption "Experts".
/s/Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Kansas City, Missouri
November 3, 1994
Exhibit 23-b
CONSENT OF COUNSEL
I refer to the Registration Statement of Kansas City Power &
Light Company to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, for the
registration of the Notes. I consent to the reference made to me
therein under "Legal Opinions."
____/s/ Jeanie Sell Latz___
(Jeanie Sell Latz)
November 3, 1994
Exhibit 25
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3; hereby granting unto such attorney and
agent full power of substitution and revocation in the premises;
and hereby ratifying and confirming all that such attorney and
agent may do or cause to be done by virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 13th day of September, 1994.
/s/ David L. Bodde
David L. Bodde
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 13th day of September, 1994, before me the
undersigned, a Notary Public, personally appeared David L. Bodde,
to me known to be the person described in and who executed the
foregoing instrument, and who, being by me first duly sworn,
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/ Janee C. Rosenthal
Notary Public for Clay County
State of Missouri
My Commission Expires:
February 25, 1995
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3; hereby granting unto such attorney and
agent full power of substitution and revocation in the premises;
and hereby ratifying and confirming all that such attorney and
agent may do or cause to be done by virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 13th day of September, 1994.
/s/ William H. Clark
William H. Clark
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 13th day of September, 1994, before me the
undersigned, a Notary Public, personally appeared William H.
Clark, to me known to be the person described in and who executed
the foregoing instrument, and who, being by me first duly sworn,
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/ Janee C. Rosenthal
Notary Public for Clay County
State of Missouri
My Commission Expires:
February 25, 1995
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3; hereby granting unto such attorney and
agent full power of substitution and revocation in the premises;
and hereby ratifying and confirming all that such attorney and
agent may do or cause to be done by virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 13th day of September, 1994.
/s/ Robert J. Dineen
Robert J. Dineen
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 13th day of September, 1994, before me the
undersigned, a Notary Public, personally appeared Robert J.
Dineen, to me known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that he executed the same as his free
act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/ Janee C. Rosenthal
Notary Public for Clay County
State of Missouri
My Commission Expires:
February 25, 1995
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3; hereby granting unto such attorney and
agent full power of substitution and revocation in the premises;
and hereby ratifying and confirming all that such attorney and
agent may do or cause to be done by virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 13th day of September, 1994.
/s/ Arthur J. Doyle
Arthur J. Doyle
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 13th day of September, 1994, before me the
undersigned, a Notary Public, personally appeared Arthur J.
Doyle, to me known to be the person described in and who executed
the foregoing instrument, and who, being by me first duly sworn,
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/ Janee C. Rosenthal
Notary Public for Clay County
State of Missouri
My Commission Expires:
February 25, 1995
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3; hereby granting unto such attorney and
agent full power of substitution and revocation in the premises;
and hereby ratifying and confirming all that such attorney and
agent may do or cause to be done by virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 13th day of September, 1994.
/s/ W. Thomas Grant II
W. Thomas Grant II
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 13th day of September, 1994, before me the
undersigned, a Notary Public, personally appeared W. Thomas Grant
II, to me known to be the person described in and who executed
the foregoing instrument, and who, being by me first duly sworn,
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/ Janee C. Rosenthal
Notary Public for Clay County
State of Missouri
My Commission Expires:
February 25, 1995
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3; hereby granting unto such attorney and
agent full power of substitution and revocation in the premises;
and hereby ratifying and confirming all that such attorney and
agent may do or cause to be done by virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 13th day of September, 1994.
/s/ George E. Nettels, Jr.
George E. Nettels, Jr.
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 13th day of September, 1994, before me the
undersigned, a Notary Public, personally appeared George E.
Nettels, Jr., to me known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that he executed the same as his free
act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/ Janee C. Rosenthal
Notary Public for Clay County
State of Missouri
My Commission Expires:
February 25, 1995
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3; hereby granting unto such attorney and
agent full power of substitution and revocation in the premises;
and hereby ratifying and confirming all that such attorney and
agent may do or cause to be done by virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 13th day of September, 1994.
/s/ Linda Hood Talbott
Linda Hood Talbott
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 13th day of September, 1994, before me the
undersigned, a Notary Public, personally appeared Linda Hood
Talbott, to me known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that she executed the same as her free
act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/ Janee C. Rosenthal
Notary Public for Clay County
State of Missouri
My Commission Expires:
February 25, 1995
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3; hereby granting unto such attorney and
agent full power of substitution and revocation in the premises;
and hereby ratifying and confirming all that such attorney and
agent may do or cause to be done by virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 13th day of September, 1994.
/s/ Robert H. West
Robert H. West
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 13th day of September, 1994, before me the
undersigned, a Notary Public, personally appeared Robert H. West,
to me known to be the person described in and who executed the
foregoing instrument, and who, being by me first duly sworn,
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/ Janee C. Rosenthal
Notary Public for Clay County
State of Missouri
My Commission Expires:
February 25, 1995
Exhibit 25-a
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
UMB BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
44-0201230
(I.R.S. Employer
Identification No.)
928 Grand Avenue, Kansas City, Missouri.............................64106
(Address of principal executive offices) (Zip Code)
Kansas City Power & Light Company
(Exact name of obligor as specified in its charter)
MISSOURI 44-0308720
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification No.)
1201 Walnut
Kansas City, Missouri 64106
(Address of principal executive offices) (Zip Code)
Mortgage Bond, Medium Term Series E
(Title of the indenture securities)
Item 1. General Information
(a) Name and address of each examining or supervising
authority to which the Trustee is subject is as follows:
The Comptroller of the Currency
Mid-Western District
2345 Grand Avenue, Suite 700
Kansas City, Missouri 64108
Federal Reserve Bank of Kansas City
Federal Reserve P.O. Station
Kansas City, Missouri 64198
Supervising Examiner
Federal Deposit Insurance Corporation
720 Olive Street, Suite 2909
St. Louis, Missouri 63101
(b) The Trustee is authorized to exercise corporate trust
powers.
Item 2. Affiliations with Obligor and Underwriters.
The Obligor is not affiliated with the Trustee.
Item 3. Voting securities of the Trustee.
The following information as to each class of voting securities
of the Trustee is furnished as of October 26, 1994:
Column A Column B
Title of Amount
Class Outstanding
Common 660,000
Item 4. Trusteeships under other indentures.
The Trustee is not a trustee under another indenture under which
any other securities, or certificates of interest or
participation in other securities, of the Obligor are
outstanding.
Item 5. Interlocking directorates and similar relationships with the
obligor or underwriters.
Neither the Trustee nor any of its directors or officers is a
director, officer, partner, employee, appointee, or represen-
tative of the Obligor.
Item 6. Voting securities of the Trustee owned by the Obligor or its
officials.
No voting securities of the Trustee are owned beneficially by the
Obligor or its directors and executive officers as of
October 26, 1994.
Item 7. Voting securities of the Trustee owned by underwriters or their
officials.
No voting securities of the Trustee and not more than 1% of the
voting securities of the Trustee's parent holding company are
owned beneficially by an Underwriter for the Obligor or its
directors, partners or executive officers as of October 26, 1994.
Item 8. Securities of the Obligor owned or held by the Trustee.
No securities of Obligor are owned beneficially or held as
collateral security for obligations in default by the Trustee as
of October 26, 1994.
Item 9. Securities of the underwriters owned or held by the Trustee.
No securities of an Underwriter for the Obligor are owned
beneficially or held as collateral security for Obligations in
default as of October 26, 1994.
Item 10. Ownership or holdings by the Trustee of voting securities of
certain affiliates or security holders of the Obligor.
The Trustee neither owns beneficially nor holds as collateral
security for obligations in default any voting securities of a
person who, to the knowledge of the Trustee, (1) owns 10 percent
or more of the voting securities of the Obligor, or (2) is an
affiliate, other than a subsidiary of Obligor, as of October 26,
1994.
Item 11. Ownership or holdings by the Trustee of any securities of a
person owning 50 percent or more of the voting securities of the
Obligor.
The Trustee neither owns beneficially nor holds as collateral
security for obligations in default any securities of a person
who, to the knowledge of the Trustee, owns 50 percent or more of
the voting shares of the Obligor as of October 26, 1994.
Item 12. Indebtedness of the Obligor to the Trustee.
Line of credit not to exceed $14,000,000, with an outstanding
balance of zero, as of October 28, 1994. Installment Loan
Authority not to exceeed $1,750,000, with an outstanding balance
of $1,331,721, as of October 28, 1994. Standby Letters of Credit
for $373,666, as of October 28, 1994.
Item 13. Defaults of the Obligor.
There has been no default with respect to the securities under
this Indenture.
Item 14. Affilitiations with the Underwriters.
Not Applicable
Item 15. Foreign Trustee.
Not Applicable
Item 16. List of exhibits.
Listed below are all exhibits filed as a part of this statement
of eligibility and qualification.
Exhibit No. Exhibit
1. Articles of Association of the Trustee, as now in effect.
2. Certificate of Authority from the Comptroller of the
Currency and evidence of subsequent changes in the
corporate title of the Association.
3. Certificate from the Comptroller of the Currency
evidencing authority to exercise corporate trust powers.
4. Bylaws, as amended, of the Trustee.
5. N/A
6. Consent of the Trustee required by Section 321 (b) of the
Act.
7. Report of Condition of the Trustee as of
June 30, 1994.
8. N/A
9. N/A
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
UMB Bank, National Association, a national bank organized and existing under
the laws of the United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Kansas City, and State of Missouri, on the
31st day of October 1994.
UMB BANK, NATIONAL ASSOCIATION
BY: /s/ Frank C. Bramwell
Frank C. Bramwell, Vice President
T-l Exhibit No. l
TO WHOM IT MAY CONCERN
The attached Articles of Association are the Articles of Association
for the UMB Bank, National Association and are current as of this date.
/s/ R. William Bloemker
Assistant Secretary
October 31, 1994
[SEAL]
UMB BANK, NATIONAL ASSOCIATION
RESTATED ARTICLES OF ASSOCIATION
FIRST: The title of this Association shall be "UMB Bank, National
Association" (amended as of October 1, 1994).
SECOND: The main office shall be in the City of Kansas City, County
of Jackson, State of Missouri. The general business of this Association,
and its operations of discount and deposit, shall be conducted at its
main office.
THIRD: The Board of Directors of this Association shall consist of
not less than five nor more than twenty-five shareholders, the exact
number of Directors within such minimum and maximum limits to be fixed
and determined from time to time by resolution of a majority of the full
Board of Directors or by resolution of the shareholders at any annual or
special meeting thereof. Unless otherwise provided by the laws of the
Untied States, any vacancy in the Board of Directors for any reason,
including an increase in the number thereof, may be filled by action of
the Board of Directors.
FOURTH: The regular annual meeting of the shareholders for the
election of directors and the transaction of whatever other business
which may be brought before said meeting shall be held at the main
office, or at such other place as the Board of Directors may designate,
on the day of each year specified therefor in the By-Laws of the
Association, but if no election be held on that day it may be held on any
subsequent day according to the provisions of law.
FIFTH: The amount of authorized capital stock of this Association
shall be Thirteen Million Two Hundred Fifty Thousand Dollars
($16,500,000), divided into 660,000 shares of common stock of the par
value of Twenty-Five Dollars ($25) each; but said capital stock may be
increased or decreased from time to time in accordance with the
provisions of the laws of the United States.
If the capital stock is increased by the sale of additional shares
thereof, each shareholder shall be entitled to subscribe for such
additional shares in proportion to the number of shares of said capital
stock owned by him at the time the increase is authorized by the
shareholders, unless another time subsequent to the date of the
shareholders' meeting is specified in a resolution adopted by the
shareholders at the time the increase is authorized. The Board of
Directors shall have the power to prescribe a reasonable period of time
within which the pre-emptive rights to subscribe to the new shares of
capital stock must be exercised.
If the capital stock is increased by a stock dividend, each
shareholder shall be entitled to his proportion of the amount of such
increase in accordance with the number of shares of capital stock owned
by him at the time the increase is authorized by the shareholders, unless
another time subsequent to the date of the shareholders' meeting is
specified in a resolution adopted by the shareholders at the time the
increase is authorized.
SIXTH: The Board of Directors shall appoint one of its members to be
President of this Association. The Board of Directors may appoint one of
its members to be Chairman of the Board, who shall perform such duties as
the Board of Directors may designate.
The Board of Directors shall have the power to appoint one or more Vice
Presidents and to appoint a Cashier and such other officers and employees
as may be required to transact the business of the Association.
The Board of Directors shall have the power to define the duties of
the officers and employees of the Association; to fix the salaries to be
paid to them; to dismiss them; to require bonds from them and to fix the
penalty thereof; to regulate the manner in which any increase in the
capital of the Association shall be made; to manage and administer the
business and affairs of the Association; to make all By-Laws that it may
be lawful for them to make; and generally to do and perform all acts that
it may be legal for the Board of Directors to do and perform.
The Board of Directors, without the approval of the shareholders, but
subject to the approval of the Comptroller of the Currency, shall have
the power to change the location of the main office of the Association to
any other place within the limits of Kansas City, Missouri and to
establish or change the location of any branch or branches to any other
location permitted under applicable law.
SEVENTH: The corporate existence of this Association shall continue
until terminated in accordance with the laws of the United States.
EIGHTH: The Board of Directors of this Association, or any three or
more shareholders owning, in the aggregate, not less than ten percentum
(10%) of the stock of this Association, may call a special meeting of the
shareholders at any time; provided, however, that unless otherwise
provided by law, not less than ten (10) days prior to the date fixed for
any such meeting, a notice of the time, place and purpose of the meeting
shall be given by first class mail, postage prepaid, to all shareholders
of record at their respective addresses as shown upon the books of the
Association.
Subject to the provisions of the laws of the United States, these
Articles of Association may be amended at any meeting of the
shareholders, for which adequate notice has been given, by the
affirmative vote of the owners of two-thirds of the stock of this
Association, voting in person or by proxy.
NINTH: Any person, his heirs, executors, or administrators, may be
indemnified or reimbursed by the Association for reasonable expenses
actually incurred in connection with any action, suit, or proceeding,
civil or criminal, to which he or they shall be made a party by reason of
his being or having been a director, officer, or employee of the
Association or any firm, corporation, or organization which he served in
any capacity at the request of the Association; provided, however, that
no person shall be so indemnified or reimbursed in relation to any matter
in such action, suit, or proceeding as to which he shall finally be
adjudged to have been guilty of or liable for gross negligence or willful
misconduct or criminal acts in the performance of his duties to the
Association; and, provided further, that no person shall be so
indemnified or reimbursed in relation to any matter in such action, suit,
or proceeding which has been made the subject of a compromise settlement
except with the approval of a court of competent jurisdiction, or the
holders of record of a majority of the outstanding shares of the
Association, or the Board of Directors, acting by vote of directors not
parties to the same or substantially the same action, suit, or
proceeding, constituting a majority of the whole number of the directors.
The foregoing right of indemnification or reimbursement shall not be
exclusive of other rights to which such person, his heirs, executors, or
administrators, may be entitled as a matter of law.
T-1 Exhibit 2
[Certificate, dated January 10th, 1934, of the Office of Comptroller of the
Currency authorizing the City National Bank and Trust Company of Kansas City
to Commence the business of Banking.]
No. 13936
__________
Treasury Department
Office of Comptroller of the Currency
Washington, D.C., January 10, 1934
WHEREAS, by satisfactory evidence presented to the undersigned, it has
been made to appear that "The City National Bank and Trust Company of
Kansas City" in the City of Kansas City in the County of Jackson and State
of Missouri has complied with all the provisions of the Statutes of the
United States, required to be complied with before an association shall be
authorized to commence the business of Banking:
NOW, THEREFORE, I, J. F. T. O'Connor, Comptroller of the Currency, do
hereby certify that "The City National Bank and Trust Company of Kansas
City" in the City of Kansas City in the County of Jackson and State of
Missouri is authorized to commence the business of Banking as provided in
Section Fifty-one hundred and sixty-nine of the Revised Statutes of the
United States. Conversion of The City Bank and Trust Company, Kansas City,
Missouri.
IN TESTIMONY WHEREOF, witness my hand and seal of office this 10th day of
January, 1934.
/s/ J. T. O'Connor
Comptroller of the Currency
C E R T I F I C A T E
For and on behalf of UMB Bank, National Association, a national banking
association organized under the laws of the United States of America
(formerly named The City National Bank and Trust Company of Kansas City and the
United Missouri Bank of Kansas City, National Association and United Missouri
Bank, National Association), the undersigned, R. William Bloemker, Assistant
Secretary of said Association, hereby certifies that attached hereto are the
following:
1) A true and correct copy of the certificate of the
Comptroller of the Currency, dated December 19,
1972, evidencing a change in corporate title from
The City National Bank and Trust Company of Kansas
City to United Missouri Bank of Kansas City,
National Association;
2) A true and correct copy of the letter of
authorization from the Comptroller of the Currency,
dated April 9, 1991, authorizing the Association to
adopt the name United Missouri Bank, National
Association; and
3) Certified Resolution evidencing recordation of
change of the name of the Association to UMB Bank,
National Association.
Certified under the corporate seal of said Association this 31st day of
October, 1994.
/s/ R. William Bloemker
Assistant Secretary
[Certificate, dated December 19, 1972, of the Comptroller of the Currency
evidencing change in corporate title from the City National Bank and Trust
Company of Kansas City to United Missouri Bank of Kansas City, National
Association.]
Comptroller of the Currency
Treasury Department of the United States
Washington, D.C.
Whereas, satisfactory notice has been transmitted to the Comptroller
of the Currency evidencing that all requisite legal and corporate
action has been taken by
The City National Bank and Trust Company of Kansas City
located in Kansas City, State of Missouri, in accordance with the statutes
of the United States, to authorize a change of the name of that
association to
United Missouri Bank of Kansas City, National Association
Now, Therefore, it is hereby certified that such change of name of
said association is approved, effective December 31, 1972.
In Testimony Whereof, witness my signature and seal of office this
nineteenth day of December, 1972.
/s/ Comptroller of the Currency
[Letter, dated April 9, 1991, from the Comptroller of the Currency, authorizing
the Association to adopt the name United Missouri Bank, National Association.]
Comptroller of the Currency
Administrator of National Banks
Midwestern District Office
2345 Grand Avneue, Suite 700
Kansas City, Missouri 64108
April 9, 1991
Mr. Marshall D. Hendrickson
Senior Vice President
United Missouri Bancshares, Inc.
P. O. Box 419226
Kansas City, Missouri 64141-6226
Dear Mr. Hendrickson:
This letter is the official certification of the Office of the
Comptroller of the Currency (OCC) for the merger of United Missouri City
Bank, Kansas City, Missouri; United Missouri Bank South, Kansas City,
Missouri and United Missouri Bank of Hickman Mills, Kansas City, Missouri
into United Missouri Bank of Kansas City, National Association, Kansas
City, Missouri under the charter of United Missouri Bank of Kansas City,
National Association and with the title "United Missouri Bank, National
Association", effective as of March 29, 1991.
This letter is also the official authorization of the Comptroller of the
Currency allowing United Missouri Bank, National Association, Charter No.
13936, the receiving institution, to operate the presently existing
branches and CBCT branches of United Missouri Bank of Kansas City,
National Association, and to establish the following branches and CBCT
branch:
2401 Grand Avenue, Kansas City, MO, Certificate NO, 84049A
1800 Grand Avenue, Kansas City, MO, Certificate No, 84050A
6400 Independence Avenue, Kansas City, MO, Certificate NO. 84051A
I-70 and Blue Ridge Cutoff, Kansas City, MO, Certificate No. 84052A
I-435 and Front Street, Kansas City, MO, Certificate No. 84053A
3500 South Outer Road, Blue Springs, MO, Certificate No. 84054A
301 North 7 Highway, Blue Springs, MO, Certificate no. 84055A
6515 Independence Avenue, Kansas City, MO, Certificate No. 84056A
9201 Ward Parkway, Kansas City, MO, Certificate NO. 84057A
7901 Wornall Road, Kansas City, MO, Certificate No. 84058A
11702 Hickman Mills Drive, Kansas City, MO, Certificate No. 84059A
10321 Blue Ridge Extension, Kansas City, MO, Certificate No. 84060A
14664 Colorado Avenue, Kansas City, MO, Certificate No. 84061A
9051 Hillcrest, Kansas City, MO, Certificate No. 84062A
1833 E. North Avenue, Belton, MO, Certificate No. 79337C
We note that the popular names of these branches will be Crown Center,
Town Bank, Independence Avenue, Stadium, Front Street, Outer Road, 7
Highway, Independence Avenue #2, Ward Parkway, Wornall Road, Hickman
Mills, Blue Ridge Extension, Colorado Avenue, Hypermart, and Belton Price
Chopper ATM, respectively.
This letter is also the official OCC certification of the approval of the
Comptroller of the Currency given to United Missouri Bank, National
Association to increase its common stock to $16,500,000 as of March 29,
1991.
The shareholders' meetings of the respective banks may be finally
adjourned.
Sincerely,
/s/ Thomas C. McAllister
Director for Analysis
Charter No. 13936
CERTIFIED RESOLUTION
I hereby certify that the following is an excerpt from a
letter dated October 3, 1994 from the Office of the
Comptroller of the Currency (OCC) confirming the Bank's change
of name:
The OCC has recorded that as of October 1, 1994, the title
of United Missouri Bank, National Association, Charter No.
13936, was changed to "UMB Bank, National Association."
/s/ R. William Bloemker
Assistant Secretary
[SEAL]
C E R T I F I C A T E
For and on behalf of UMB Bank, National Association, a
national banking association under the laws of the United
States of America, the undersigned, R. William Bloemker,
Assistant Secretary of said Association, hereby certifies that
the attached document is a true and correct copy of the
certificate issued by the Comptroller of the Currency of the
United States evidencing its authority to exercise fiduciary
powers under the statutes of the United States.
Certified under the corporate seal of said Association this
5th day of October, 1994.
/s/ R. William Bloemker
Assistant Secretary
[Certificate, dated December 31, 1972, of the Comptroller of
the Currency evidencing the authority of the Association to
exercise fiduciary powers under the statutes of the United
States.]
Comptroller of the Currency
Treasury Department of the United States
Washington, D.C.
WHEREAS, UNITED MISSOURI BANK OF KANSAS CITY,
NATIONAL ASSOCIATION, located in Kansas City, State of
Missouri, being a Naitonal Banking Association, organized
under the statutes of the United States, has made
application for authority to act as fiduciary
AND WHEREAS, applicable provisions of the statutes
of the United States authorize the grant of such
authority;
NOW THEREFORE, I hereby certify that the necessary
approval has been given and that the said association is
authorized to act in all fiduciary capacities permitted
by such statutes.
IN TESTIMONY WHEREOF, witness my signature and seal
of office this thirty first dayof December, 1972.
/s/ Acting Comptroller of the Currency
Charter No. 13936
T-l Exhibit No. 4
TO WHOM IT MAY CONCERN
The attached ByLaws are the ByLaws for the UMB Bank,
National Association and are current as of this date.
/s/ R. William Bloemker
Assistant Secretary
October 31, 1994
[SEAL]
UMB BANK, NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I
Meetings of Shareholders
Section 1.1 - Where Held. All meetings of shareholders of
this Association shall be held at its main banking house in
Kansas City, Jackson County, Missouri, or at such other place
as the Board of Directors may from time to time designate.
Section 1.2 - Annual Meeting. The annual meeting of
shareholders shall be held at 11 o'clock in the forenoon, or
at such other time as shall be stated in the notice thereof,
on the third Wednesday of January in each year or, if that day
be a legal holiday, on the next succeeding banking day, for
the purpose of electing a Board of Directors and transacting
such other business as may properly come before the meeting.
Section 1.3 - Special Meetings. Except as otherwise provided
by law, special meetings of shareholders may be called for any
purpose, at any time, by the Board of Directors or by any
three or more shareholders owning, in the aggregate, not less
than ten percent (10%) of the outstanding stock in the
Association.
Section 1.4 - Notice of Meetings. Written notice of the time,
place, and purpose of any meeting of shareholders shall be
given to each shareholder (a) by delivering a copy thereof in
person to the shareholder, or (b) by depositing a copy thereof
in the U.S. mails, postage prepaid, addressed to the
shareholder at his address appearing on the books of the
Association, in either case at least ten (10) days prior to
the date fixed for the meeting.
Section 1.5 - Quorum. A majority of the outstanding capital
stock, represented in person or by proxy, shall constitute a
quorum for the transaction of business at any meeting or
shareholders, unless otherwise provided by law. A majority of
the votes cast shall decide every question or matter submitted
to the shareholders at any meeting, unless otherwise provided
by law or by the Articles of Association.
Section 1.6 - Adjournment. Any meeting of shareholders may,
by majority vote of the shares represented at such meeting, in
person or by proxy, though less than a quorum, be adjourned
from day to day or from time to time, not exceeding, in the
case of elections of directors, sixty (60) days from such
adjournment, without further notice, until a quorum shall
attend or the business thereof shall be completed. At any
such adjourned meeting, any business may be transacted which
might have been transacted at the meeting as originally
called.
Section 1.7 - Voting. Each shareholder shall be entitled to
one (1) vote on each share of stock held, except that in the
election of directors each shareholder shall have the right to
cast as many votes, in the aggregate, as shall equal the
number of shares owned by him, multiplied by the number of
directors to be elected, and said votes may be cast for one
director or distributed among two (2) or more candidates.
Voting may be in person or by proxy, but no officer or
employee of this Association shall act as proxy. Authority to
vote by proxy shall be by written instrument, dated and filed
with the records of the meeting, and shall be valid only for
one meeting, to be specified therein, and any adjournments of
such meeting.
ARTICLE II
Directors
Section 2.1 - Number and Qualifications. The Board of
Directors (hereinafter sometimes referred to as the "Board")
shall consist of not less than five (5) nor more than
twenty-five (25) shareholders, the exact number, within such
limits, to be fixed and determined from time to time by
resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any meeting thereof;
provided, however, that a majority of the full Board of
Directors shall not increase the number of directors to a
number which: (a) exceeds by more than two (2) the number of
directors last elected by shareholders where such number was
fifteen (15) or less; or (b) exceeds by more than four (4) the
number of directors last elected by shareholders where such
number was sixteen (16) or more. No person who has attained
the age of seventy (70) shall be eligible for election to the
Board of Directors unless such person is actively engaged in
business at the time of his election, but any person not so
disqualified at the time of his election as a director shall
be entitled to serve until the end of his term. All directors
shall hold office for one (1) year and until their successors
are elected and qualified.
Section 2.2 - Advisory Directors. The Board of Directors may
appoint Advisory Directors, chosen from former directors of
the Association or such other persons as the Board shall
select. The Advisory Directors shall meet with the Board at
all regular and special meetings of the Board and may
participate in such meetings but shall have no vote. They
shall perform such other advisory functions and shall render
such services as may from time to time be directed by the
Board.
Section 2.3 - Powers. The Board shall manage and administer
the business and affairs of the Association. Except as
expressly limited by law, all corporate powers of the
Association shall be vested in and may be exercised by said
Board. It may not delegate responsibility for its duties to
others, but may assign the authority and responsibility for
various functions to such directors, committees and officers
or other employees as it shall see fit.
Section 2.4 - Vacancies. In case of vacancy occurring on the
Board through death, resignation, disqualification, disability
or any other cause, such vacancy may be filled at any regular
or special meeting of the Board by vote of a majority of the
surviving or remaining directors then in office. Any director
elected to fill a vacancy shall hold office for the unexpired
term of the director whose place was vacated and until the
election and qualification of his successor.
Section 2.5 - Organization Meeting. Following the annual
meeting of shareholders, the Corporate Secretary shall notify
the directors elect of their election and of the time and
place of the next regular meeting of the Board, at which the
new Board will be organized and the members of the Board will
take the oath required by law, after which the Board will
appoint committees and the executive officers of the
Association, and transact such other business as may properly
come before the meeting; provided, however, that if the
organization meeting of the Board shall be held immediately
following the annual meeting of shareholders, no notice
thereof shall be required except an announcement thereof at
the meeting of directors.
Section 2.6 - Regular Meetings. The regular meetings of the
Board of Directors shall be held, without notice except as
provided for the organization meeting, on the third Wednesday
of each month at the main banking house in Kansas City,
Jackson County, Missouri. When any regular meeting of the
Board falls upon a holiday, the meeting shall be held on the
next banking day, unless the Board shall designate some other
day. A regular monthly meeting of the Board may, by action of
the Board at its preceding meeting, be postponed to a later
day in the same month.
Section 2.7 - Special Meetings. Special meetings of the Board
may be called by the Corporate Secretary on direction of the
President or of the Chairman of the Board, or at the request
of three (3) or more directors. Each member of the Board
shall be given notice, by telegram, letter, or in person,
stating the time, place and purpose of such meeting.
Section 2.8 - Quorum. Except when otherwise provided by law,
a majority of the directors shall constitute a quorum for the
transaction of business at any meeting, but a lesser number
may adjourn any meeting, from time to time, and the meeting
may be held, as adjourned, without further notice.
Section 2.9 - Voting. A majority of the directors present and
voting at any meeting of the Board shall decide each matter
considered. A director may not vote by proxy.
Section 2.10 - Compensation of Directors. The compensation to
be paid the directors of the Association for their services
shall be determined from time to time by the Board.
ARTICLE III
Committees Appointed by the Board
Section 3.1 - Standing Committees. The standing committees of
this Association shall be the Management Committee, Executive
Committee, the Officers' Salary Committee, the Discount
Committee, the Bond Investment Committee, the Trust Policy
Committee, the Bank Examining Committee and the Trust Auditing
Committee. The members of the standing committees shall be
appointed annually by the Board of Directors at its
organization meeting, or, on notice, at any subsequent meeting
of the Board, to serve until their respective successors shall
have been appointed. The President and the Chairman of the
Board shall be, ex officio, members of all standing committees
except the Bank Examining Committee and the Trust Auditing
Committee. Each standing committee shall keep minutes of its
meetings, showing the action taken on all matters considered.
A report of all action so taken shall be made to the Board,
and a copy of such minutes shall be available for examination
by members of the Board.
Section 3.2 - Management Committee. The Management Committee
shall consist of such executive officers of the Association as
shall be designated by the Board. One of the members of the
Committee shall be designated by the Board as Chairman. The
Committee may adopt policies (not inconsistent with policies
and delegations of authority prescribed by these By-Laws or by
the Board) with respect to the executive and administrative
functions of the Association, and in general, it shall
coordinate the performance of such functions in and among
the various departments of the Association, assisting and
advising the executive officers or department heads upon
matters referred to it by such officers or department heads.
The Committee shall make reports and recommendations to the
Board upon such policies or other matters as it deems
advisable or as may be referred to it by the Board, and shall
have such other powers and duties as may be delegated or
assigned to it by the Board from time to time. The secretary
of the Committee may be designated by the Board, or, in
default thereof, by the Committee, and may but need not be a
member thereof.
Section 3.3 - Executive Committee. The Executive Committee
shall consist of such executive officers of the Association as
shall be designated by the Board. One of the members of the
Committee shall be designated by the Board as Chairman. The
Committee shall carry out such responsibilities and duties as
the Management Committee shall delegate to it, from time to
time.
Section 3.4 - Officers' Salary Committee. The Officers'
Salary Committee shall consist of such directors and officers
of the Association as may be designated by the Board. It
shall study and consider the compensation to be paid to
officers of the Association and shall make recommendations to
the Board with respect thereto and with respect to such other
matters as may be referred to it by the Board.
Section 3.5 - Discount Committee. The Discount Committee
shall consist of such directors and officers as shall be
designated by the Board of Directors. It shall have the power
to discount and purchase bills, notes and other evidences of
debt; to buy and sell bills of exchange; to examine and
approve loans and discounts; and to exercise authority
regarding loans and discounts held by the Association. At
each regular meeting of the Board, the Board shall approve or
disapprove the report filed with it by the Discount Committee
and record its actions in the minutes of its meeting. The
powers and authority conferred upon the Discount Committee by
this Section may, with the approval of the Board of Directors,
be assigned or delegated by it, to officers of the
Association, subject to such limits and controls as the
Committee may deem advisable.
Section 3.6 - Bond Investment Committee. The Bond Investment
Committee shall consist of such directors and officers as
shall be designated by the Board of Directors. It shall have
power to buy and sell bonds, to examine and approve the
purchase and sale of bonds, and to exercise authority
regarding bonds held by the Association. At each regular
meeting of the Board, the Board shall approve or disapprove
the report iled with it by the Bond Investment Committee and
record its action in the minutes of its meeting.
Section 3.7 - Trust Policy Committee. The Trust Policy
Committee shall consist of such directors and officers of the
Association as shall be designated by the Board of Directors.
Such committee shall have and exercise such of the Bank's
fiduciary powers as may be assigned to it by the Board, with
power to further assign, subject to its control, the exercise
of such powers to other committees, officers and employees.
The action of the Trust Policy Committee shall, at all times,
be subject to control by the Board.
Section 3.8 - Bank Examining Committee. The Bank Examining
Committee shall consist of such directors of the Association
as shall be designated by the Board, none of whom shall be an
active officer of the Association. It shall make suitable
examinations at least once during each period of twelve (12)
months of the affairs of the Association or cause a suitable
audit to be made by auditors responsible only to the Board of
Directors. The result of such examinations shall be reported
in writing, to the Board at the next regular meeting
thereafter and shall state whether the Association is in a
sound and solvent condition, whether adequate internal
controls and procedures are being maintained, and shall
recommend to the Board such changes as the Committee shall
deem advisable. The Bank Examining Committee, with the
approval of the Board of Directors, may employ a qualified
firm of certified public accountants to make an examination
and audit of the Association. If such a procedure is
followed, the annual examination of directors, will be deemed
sufficient to comply with the requirements of this section of
the By-Laws.
Section 3.9 - Trust Auditing Committee. The Trust Auditing
Committee shall consist of such directors of the Association
as shall be designated by the Board, none of whom shall be an
active officer of the Association. At least once during each
calendar year, and within fifteen (15) months of the last such
audit, the Trust Auditing Committee shall make suitable audits
of the Trust Departments or cause suitable audit to be made by
auditors responsible only to the Board of Directors, and at
such time shall ascertain whether the Departments have been
administered in accordance with law, the Regulations of the
Comptroller and sound fiduciary practices. As an alternative,
in lieu of such periodic audits, the Board may elect to adopt
an adequate continuous audit system.
Section 3.10 - Other Committees. The Board may appoint, from
time to time, from its own members or from officers of the
Association, or both, other committees of one or more persons
for such purposes and with such powers as the Board may
determine.
Section 3.11 - Compensation of Committee Members. The Board
shall determine the compensation to be paid to each member of
any committee appointed by it for services on such committee,
but no such compensation shall be paid to any committee member
who shall at the time be receiving a salary from the
Association as an officer thereof.
ARTICLE IV
Officers and Employees
Section 4.1 - Chairman of the Board. The Board of Directors
shall appoint one of its members (who may, but need not, be
President of the Association) as Chairman of the Board. He
shall preside at all meeting of the Board of Directors and
shall have general executive powers and such further powers
and duties as from time to time may be conferred upon, or
assigned to, him by the Board of Directors. He shall be, ex
officio, a member of all standing committees except the Bank
Examining Committee and the Trust Auditing Committee.
Section 4.2 - President. The Board of Directors shall appoint
one of its members to be the President of this Association.
The President shall be the chief executive officer of the
Association, except as the Board of Directors may otherwise
provide, and shall have and may exercise any and all other
powers and duties pertaining to such office. He shall also
have and may exercise such further powers and duties as from
time to time may be conferred upon, or assigned to, him by the
Board of Directors. He shall be, ex officio, a member of all
standing committees except the Bank Examining Committee and
the Trust Auditing Committee.
Section 4.3 - Chairman of the Executive Committee. The Board
of Directors may appoint a Chairman of the Executive
Committee, who shall have general executive powers and shall
have and may exercise such further powers and duties as from
time to time may be conferred upon, or assigned to, him by the
Board of Directors.
Section 4.4 - Vice Presidents. The Board of Directors shall
appoint one or more Vice Presidents. Each Vice President
shall have such powers and duties as may be assigned to him by
the Board and may be given such descriptive or functional
titles as the Board may designate.
Section 4.5 - Trust Officers. The Board of Directors shall
appoint one or more Trust Officers. Each Trust Officer shall
have such powers and duties as may be assigned to him by the
Board of Directors in accordance with the provisions of
Article V. The Trust Officers may be given such descriptive
or functional titles as the Board may designate.
Section 4.6 - Corporate Secretary. The Board of Directors
shall appoint a Corporate Secretary. The Corporate Secretary
shall be responsible for the minutes book of the Association,
in which he shall maintain and preserve the organization
papers of the Association, the Articles of Association, the
By-Laws, minutes of regular and special meetings of the
shareholders and of the Board of Directors, and reports by
officers and committees of the Association to the shareholders
and to the Board of Directors. He shall attend all meetings
of the shareholders and of the Board of Directors and shall
act as the clerk of such meetings and shall prepare and sign
the minutes of such meetings. He shall have custody of the
corporate seal of the Association and of the stock transfer
books, except as given to the Comptroller's Department or the
Corporate Trust Department to act as transfer agent and
registrar of the Association's capital stock, and of such
other documents and records as the Board of Directors shall
entrust to him. The Secretary shall give such notice of
meetings of the shareholders and of the Board of Directors as
is required by law, the Articles of the Association and the
By-Laws. In addition, he shall perform such other duties as
may be assigned to him from time to time by the Board of
Directors. The Assistant Secretaries shall render the
Corporate Secretary such assistance as he shall require in the
performance of his office. During his absence or inability to
act, the Assistant Secretaries shall be vested with the powers
and perform the duties of the Corporate Secretary.
Section 4.7 - Cashier. The Board of Directors may appoint a
Cashier. He shall have such powers and shall perform such
duties as may be assigned to him by resolution of the Board of
Directors.
Section 4.8 - Comptroller. The Board of Directors shall
appoint a Comptroller. The Comptroller shall institute and
maintain the accounting policies and practices established by
the Board of Directors. He shall maintain, or cause to be
maintained, adequate records of all transactions of the
Association. He shall be responsible for the preparation of
reports and returns to taxing and regulatory authorities, and
at meetings of the Board of Directors shall furnish true and
correct statements of condition and statements of operations
of the Association and such further information and data, and
analyses thereof, as the Board of Directors may require. He
shall have custody of the Association's insurance policies.
In addition, the Comptroller shall perform such other duties
as may be assigned to him, from time to time by the Board of
Directors. The Assistant Comptroller(s) shall render the
Comptroller such assistance as he shall require in the
performance of the duties of his office and, during his
absence or inability to act, the Assistant Comptroller(s), in
the order designated by the Board of Directors, shall be
vested with the powers and perform the duties of the
Comptroller.
Section 4.9 - Auditor. The Board of Directors shall appoint
an Auditor of the Association. He shall see that adequate
audits of the Association are currently and regularly made and
that adequate audit systems and controls are established and
maintained. He shall examine each department and activity of
the Association and may inquire into transactions affecting
the Association involving any officer or employee thereof.
The Board, however, may, in lieu of appointing an Auditor,
assign the duties thereof to the Auditor of the parent company
of the Association.
Section 4.10 - Other Officers. The Board of Directors may
appoint one or more Assistant Vice Presidents, one or more
Assistant Trust Officers, one or more Assistant Secretaries,
one or more Assistant Cashiers, and such other officers and
Attorneys-In-Fact as from time to time may appear to the Board
of Directors to be required or desirable to transact the
business of the Association. The power to appoint such
assistant or the additional officers may be delegated to the
Chairman of the Board or the President, or to such other
executive officer or officers as the Board may designate, but
the power to appoint any officer of the Audit Department or
any Assistant Secretary may not be so delegated. Any officer
and Attorney-In-Fact appointed as herein provided shall
exercise such powers and perform such duties as pertain to his
office or as may be conferred upon or assigned to him by the
Board of Directors of by the officer authorized to make such
appointment.
Section 4.11 - Tenure of Office. The Chairman of the Board
and the President shall hold office for the current year for
which Board of Directors of which they are members was
elected, unless either of them shall resign, become
disqualified or be removed, and any vacancy occurring in
either of such offices shall be filled promptly by the Board
of Directors. All other officers of the Association shall
serve at the pleasure of the Board of Directors.
Section 4.12 - Compensation of Officers. The compensation of
the officers of the Association shall be fixed and may be
altered, from time to time, by the Board of Directors or, in
the case of officers appointed by another officer, as
authorized by Section 4.10 of this Article, by the officer or
officers making such appointment, subject to the supervisory
control of, and in accordance with the policies established
by, the Board.
Section 4.13 - Combining Offices. The Board of Directors, in
its discretion, may combine two or more offices and direct
that they be filled by the same individual, except that (a)
the office of Corporate Secretary shall not be combined with
that of the Chairman of the Board or of the President and (b)
the office of Auditor shall not be combined with any other
office.
Section 4.14 - Succession. During the absence of the Chairman
of the Board, or such other officer designated as Chief
Executive Officer, all of the duties pertaining to his office
under these By-Laws and the resolutions of the Board of
Directors shall, subject to the supervisory control of the
Board, devolve upon, and be performed by, the officers,
successively, who are next in the order of authority as
established by the Board of Directors from time to time, or,
in the absence of an order of authority so established, in the
order of Chairman of the Board, President and Chairman of the
Executive Committee as may be applicable in the particular
case.
Section 4.15 - Clerks and Agents. Any one of the Chairman of
the Board, President or Chairman of the Executive Committee,
or any officer of the Association authorized by them, may
appoint and dismiss all or any clerks, agents and employees
and prescribe their duties and the conditions of their
employment, and from time to time fix their compensation.
Section 4.16 - Requiring Bond. The Board of Directors shall
require such officers and employees of the Association as it
shall designate to give bond, of suitable amount, with
security to be approved by the Board, conditioned for the
honest and faithful discharge by each such officer or employee
of his respective duties. In the discretion of the Board,
such bonds may be in blanket form and the premiums may be paid
by the Association. The amount of such bonds, form of
coverage, and the company acting as surety therefor, shall be
reviewed by the Board of Directors each year.
ARTICLE V
Administration of Trust Powers
Section 5.1 - Trust Department. Organization. There shall be
one or more departments of the Association which shall perform
the fiduciary responsibilities of the Association.
Section 5.2 - Management of Department. The Board of
Directors shall be responsible for the management and
administration of the Trust Department or Departments, but is
may assign or delegate such of its powers and authority to the
Trust Policy Committee and to such other committees and
officers of the Association as it may deem advisable.
Section 5.3 - Department Heads. The Board of Directors shall
designate one of the Trust Officers as the chief executive of
each Trust Department. His duties shall be to manage,
supervise and direct all activities of such Department,
subject to such supervision as may be vested in the Trust
Policy and other committees. He shall do, or cause to be
done, all things necessary or proper in carrying on the
business of such Department in accordance with provisions of
law, applicable regulations and policies established by
authority of the Board. He shall act pursuant to opinions of
counsel where such opinion is deemed necessary. He shall be
responsible for all assets and documents held by the
Association in connection with fiduciary matters, in such
Department, except as otherwise provided in this Article V.
Section 5.4 - Custody of Securities. The Board of Directors
shall designate two or more officers or employees of the
Association to have joint custody of the investments of each
trust account administered by the Trust Department or
Departments.
Section 5.5 - Trust Department Files. There shall be
maintained in each Trust Department files containing all
fiduciary records necessary to assure that it fiduciary
responsibilities have been properly undertaken and discharged.
Section 5.6 - Trust Investments. Funds held in a fiduciary
capacity shall be invested in accordance with the instrument
establishing the fiduciary relationship and governing law.
Where such instrument does not specify the character and class
of investments to be made and does not vest in the Association
a discretion in the matter, funds held pursuant to such
instrument shall be invested in investments in which corporate
fiduciaries may invest under the laws of the State of Missouri
and the decisions of its courts.
ARTICLE VI
Stock and Stock Certificates
Section 6.1 - Transfers. Shares of the capital stock of the
Association shall be transferable only on the books of the
Association, and a transfer book shall be kept in which all
transfers of stock shall be recorded.
Section 6.2 - Stock Certificates. Certificates of stock shall
bear the signatures of (i) the Chairman of the Board, the
President or any Vice President, and (ii) the Secretary,
Cashier, any Assistant Secretary, or any other officer
appointed by the Board of Directors for that purpose; and the
seal of the Association shall be impressed, engraved, or
printed thereon. Such signatures may be manual or engraved,
printed or otherwise impressed by facsimile process; but if
both of the required signatures are by facsimile then such
certificates shall be manually countersigned by the person or
persons thereunto authorized by the Board of Directors.
Certificates bearing the facsimile signature of an authorized
officer may be validly issued even though the person so named
shall have ceased to hold such office at the time of issuance.
Each certificate shall recite on its face that the stock
represented thereby is transferable only upon the books of the
Association upon the surrender of such certificate properly
endorsed.
Section 6.3 - Closing Transfer Books or Fixing Record Date.
The Board of Directors shall have power to close the transfer
books of the Association for a period not exceeding thirty
(30) days preceding the date of any meeting of shareholders,
or the date of payment of any dividend, or the date of
allotment of rights, or the date when any change or conversion
of exchange of shares shall go into effect; provided, however,
that in lieu of closing the said transfer books, the Board of
Directors may fix, in advance, a date, not exceeding thirty
(30) days preceding the date of any such event, as record date
for the determination of the shareholders entitled to notice
of, and to vote at, any such meeting (and any adjournment
thereof), or entitled to receive payment of any such dividend
or allotment of such rights, or to exercise rights in respect
of any such change, conversion or exchange of shares, and in
such case, only such shareholders as shall be shareholders of
record at the close of business on the date of closing the
transfer books or on the record date so fixed shall be
entitled to notice of, and to vote at, such meeting (and any
adjournment thereof), or to receive payment of such dividend
or allotment of such rights, or to exercise such rights, as
the case may be.
ARTICLE VII
Corporate Seal
Section 7.1 - Authority to Affix. The President, the
Corporate Secretary, the Cashier, and any Assistant Secretary
or other officer designated by the Board of Directors, shall
have authority to affix the corporate seal on any document
requiring such seal, and to attest the same. The seal shall
be substantially in the following form:
ARTICLE VIII
Miscellaneous Provisions
Section 8.1 - Fiscal Year. The fiscal year of the Association
shall be the calendar year.
Section 8.2 - Execution of Instruments. All agreements,
indentures, mortgages, deeds, conveyances, transfers,
certificates, declarations, receipts, discharges, releases,
satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments
or documents may be signed, executed, acknowledged, verified,
delivered or accepted on behalf of the Association by the
Chairman of the Board, the President, any Vice President, or
the Cashier; and, if in connection with the exercise of
fiduciary powers of the Association, by any of said officers
or by any authorized officer of the Trust Department or
Departments. Any such instruments may also be executed,
acknowledged, verified, delivered, or accepted on behalf of
the Association in such other manner and by such other
officers as the Board of Directors may from time to time
direct. The provisions of this Section are supplementary to
any other provisions of these By-Laws.
Section 8.3 - Banking Hours. The Association shall be open
for business on such days and during such hours as may be
prescribed by resolution of the Board of Directors. Unless
and until the Directors shall prescribe other and different
banking hours, this Association's main office shall be open
for business from 9:30 o'clock a.m. to 2:00 o'clock p.m. of
each day, except Fridays when the hours shall be from 9:30
o'clock a.m. to 6:00 o'clock p.m., and except that the
Association shall be closed on Saturdays and Sundays, and,
with the approval of the Board on days recognized by the laws
of the State of Missouri as public holiday.
ARTICLE IX
By-Laws
Section 9.1. - Inspection. A copy of the By-Laws, with all
amendments thereto, shall at all times be kept in a convenient
place at the main office of the Association and shall be open
for inspection to all shareholders during banking hours.
Section 9.2 - Amendments. The By-Laws may be amended, altered
or repealed by vote of a majority of the entire Board of
Directors at any meeting of the Board, provided that ten (10)
days' written notice of the proposed change has been given to
each Director. No amendment may be made unless the By-Laws,
as amended, is consistent with the requirements of the laws of
the United States and with the provisions of the Articles of
the Association. A certified copy of all amendments to the
By-Laws shall be forwarded to the Comptroller of the Currency
immediately after adoption.
10-1-94
T-l Exhibit 6
Consent of Trustee
Pursuant to Section 32l(b) of the Trust
Indenture Act of l939, UMB Bank, National Association, a
national bank organized under the laws of the United States,
hereby consents that reports of examinations by the
Comptroller of the Currency, of the Federal Deposit Insurance
Corporation, and any other federal, state, territorial or
district authorities may be furnished by such authorities to
the Securities and Exchange Commission upon request therefor.
UMB BANK, NATIONAL ASSOCIATION
BY: /S/ Frank C. Bramwell
Frank C. Bramwell, Vice President
Date: October 31, 1994
T-1 Exhibit 7
This form is for use by National Banks only. It should be used for
publication purposes only, and should ot be returned to the FDIC.
- ------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- ------------------------------------------------------------------------
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
UNITED MISSOURI BANK, N.A. OF KANSAS CITY
Name of Bank City
in the state of Missouri , at the close of business on June 30, 1994,
published in response to call make by Comptroller of the Currency, under
title 12, United States Code, Section 161.
Charter Number 13936 Comptroller of the Currency Midwestern District
Statements of Resources and Liabilities
A S S E T S Thousands
of dollars
Cash and balances due from depository institutions:
Noninterest-beering balances and currency and coin. . . . . . . . . 414,720
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . 91,730
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . 1,051,760
Federal funds sold. . . . . . . . . . . . . . . . . . . . . . . . . . . 283,856
Securities purchased under agreements to resell . . . . . . . . . . . . 0
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . 1,083,818
LESS: Allowance for loan and lease losses. . . 9,753
LESS: Allocated transfer risk reserve. . . . . 0
Loans and leases, net of unearned income, allowance, and reserve. 1,074,065
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . 42,768
Premises and fixed assets (including capitalized leases). . . . . . . 75,061
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . 4,589
Investments in unconsolidated subsidiaries and associated companies . 0
Customers' liability to this bank on acceptances outstanding. . . . . 3,783
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . 2,564
Other assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58,644
Total assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,103,540
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . 2,667,344
Noninterest-bearing . . . . . . . . . . . . . . 1,088,112
Interest-bearing. . . . . . . . . . . . . . . . 1,579,232
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . 180,076
Securities sold under agreements to repurchase. . . . . . . . . . . . 0
Demand notes issued to the U. S. Treasury . . . . . . . . . . . . . . 0
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: ////////
With original maturity of one year or less. . . . . . . . . . . . 0
With original maturity of more than one year. . . . . . . . . . . 0
Mortgage indebtness and obligations under capitalized leases. . . . . 0
Bank's liability on acceptances executed and outstanding. . . . . . . 3,783
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . 0
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 25,636
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 2,876,839
Limited-life preferred stock and related surplus. . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . 0
Common stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,500
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,742
Undivided profits and capital reserves. . . . . . . . . . . . . . . . 194,332
Net unrealized holding gains (losses) on available-for-sale securities (6,873)
Total equity capital. . . . . . . . . . . . . . . . . . . . . . . . . 226,701
Total Liabilities, limited-life preferred stock, and equity capital . 3,103,540
We, the undersigned directors, attest to I, TIMOTHY C. CONNEALY
the correctness of this statement of Name
resources and liabilities. We declare
that it has been examined by us, and to
the best of our knowledge and belief has SENIOR VICE PRESIDENT
been prepared in conformance with the Title
instructions and is true and correct.
of the above-named bank do
hereby declare that this
Report of Condition is true and
correct to the best of my
knowledge and belief.
__________________________________
__________________________________ Directors
__________________________________
/s/ Timothy C. Connealy
Signature
7-26-94
Date
EXHIBIT 26-b
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
KANSAS CITY POWER & LIGHT COMPANY
(Exact name of obligor as specified in its charter)
Missouri 44-0308720
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1201 Walnut
Kansas City, Missouri 64106-2124
(Address of principal executive offices) (Zip code)
______________________
Medium-Term Notes
(Title of the indenture securities)
================================================================================
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
-------------------------------------------------------------------------------
Name Address
-------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affilia-
tion.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and
Exhibit 1 to Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of
New York, and State of New York, on the 24th day of October, 1994.
THE BANK OF NEW YORK
By: WALTER N. GITLIN
Name: Walter N. Gitlin
Title: Vice President
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
June 30, 1994, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 7,071,756
Interest-bearing balances .......... 695,722
Securities:
Held-to-maturity securities ........ 1,396,356
Available-for-sale securities ...... 1,495,522
Federal funds sold in domestic
offices of the bank ................ 874,129
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................25,607,366
LESS: Allowance for loan and
lease losses ..............688,226
LESS: Allocated transfer risk
reserve .....................29,781
Loans and leases, net of unearned
income, allowance, and reserve 24,889,359
Assets held in trading accounts ...... 2,427,515
Premises and fixed assets (including
capitalized leases) ................ 634,514
Other real estate owned .............. 51,996
Investments in unconsolidated
subsidiaries and associated
companies .......................... 164,558
Customers' liability to this bank on
acceptances outstanding ............ 1,212,402
Intangible assets .................... 80,153
Other assets ......................... 1,512,404
Total assets ......................... $42,506,386
LIABILITIES
Deposits:
In domestic offices ................ $19,454,858
Noninterest-bearing .......7,576,391
Interest-bearing .........11,878,467
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,753,958
Noninterest-bearing ..........51,653
Interest-bearing ..........10,702,305
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,150,270
Securities sold under agreements
to repurchase .................... 49,603
Demand notes issued to the U.S.
Treasury ........................... 300,000
Trading liabilities .................. 1,757,487
Other borrowed money:
With original maturity of one year
or less .......................... 2,452,009
With original maturity of more than
one year ......................... 33,969
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,212,877
Subordinated notes and debentures .... 1,062,320
Other liabilities .................... 1,348,031
Total liabilities .................... 39,575,382
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,495,590
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 26,172)
Cumulative foreign currency transla-
tion adjustments .................. ( 6,364)
Total equity capital ................ 2,931,004
Total liabilities and equity
capital ........................... $42,506,386
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
+
Alan R. Griffith |
Thomas A. Renyi | Directors
J. Carter Bacot |
+
