THE EMPIRE DISTRICT ELECTRIC COMPANY
TO
HARRIS TRUST AND SAVINGS BANK
AND
MERCANTILE BANK OF JOPLIN
Trustees
___________________
Twenty-Seventh Supplemental Indenture
Dated as of June 1, 1995
___________________
(Supplemental to Indenture dated as of September 1, 1944)
___________________
$30,000,000
First Mortgage Bonds, 7-3/4% Series due 2025
TABLE OF CONTENTS1
PAGE
PARTIES 1
RECITALS 1
FORM OF BOND 2
FORM OF PRINCIPAL TRUSTEE'S CERTIFICATE OF AUTHENTICATION 5
GRANTING CLAUSES 6
SUBSTATIONS AND SWITCHING STATIONS 6
PROPERTY NOW OWNED OR HEREAFTER ACQUIRED 6
SUBJECT TO PERMITTED ENCUMBRANCES, LIENS ON
AFTER-ACQUIRED PROPERTY AND CERTAIN VENDORS' LIENS 7
HABENDUM 7
GRANT IN TRUST 7
DEFEASANCE 7
GENERAL COVENANT 7
ARTICLE I
CREATION AND DESCRIPTION OF FIRST MORTGAGE BONDS,
7-3/4% SERIES DUE 2025
SECTION 1. New Series of Bonds 7
Bonds to be dated as of authentication date 7
Record Date 7
Denominations 8
Registrable and interchangeable, tax or government
charge 8
No service charge on exchange or transfer 8
Book-entry procedures 8
SECTION 2. Issue of Bonds of the New Series limited
to $30,000,000. All or a portion of the
Bonds of the New Series may be authenticated
prior to recording of this Supplemental
Indenture 10
ARTICLE II
REDEMPTION OF BONDS OF THE NEW SERIES
SECTION 1. Rights of Redemption 10
SECTION 2. Manner and Method of Redemption 10
SECTION 3. Bondholder agrees to accept payment upon terms of
this Article 10
(1) This Table of Contents is not a part of the annexed
Supplemental Indenture as executed.
ARTICLE III
NO SINKING AND IMPROVEMENT FUND FOR BONDS OF THE
NEW SERIES
There shall be no Sinking and Improvement Fund for
the Bonds of the New Series 10
ARTICLE IV
DIVIDEND COVENANTS
Covenants in Section 4.11 of the Original
Indenture to continue in effect so long as any
Bonds of the New Series are outstanding 10
ARTICLE V
THE TRUSTEES
The Trustees accept the trusts created by
this Supplemental Indenture and agree to perform
the same upon terms set forth in the Original
Indenture as supplemented 11
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 1. Provision regarding legal holidays 11
SECTION 2. Original Indenture, as supplemented and
amended, ratified and confirmed 11
SECTION 3. This Supplemental Indenture may be
executed in counterparts 11
SECTION 4. Rights conferred only on holder of bonds,
Company and Trustees 11
TESTIMONIUM 12
SIGNATURES AND SEALS 12
ACKNOWLEDGMENTS 15
TWENTY-SEVENTH SUPPLEMENTAL INDENTURE, dated as of
June 1, 1995, between The Empire District Electric Company, a
corporation organized and existing under the laws of the State of
Kansas (hereinafter called the "Company"), party of the first
part, and Harris Trust and Savings Bank, a corporation organized
and existing under the laws of the State of Illinois and having
its principal place of business at 111 West Monroe Street, in the
City of Chicago, Illinois, and Mercantile Bank of Joplin
(successor to The Joplin National Bank and Trust Company), a bank
organized and existing under the laws of the State of Missouri
and having its principal place of business in the City of Joplin,
Missouri (hereinafter sometimes called respectively the
"Principal Trustee" and the "Missouri Trustee" and together the
"Trustees" and each thereof a "Trustee"), as Trustees, parties of
the second part.
WHEREAS the Company has heretofore executed and
delivered to the Trustees its Indenture of Mortgage and Deed of
Trust, dated as of September 1, 1944 (hereinafter sometimes
referred to as the "Original Indenture"), to secure an issue of
First Mortgage Bonds of the Company, issuable in series, and
created thereunder a series of bonds designated as First Mortgage
Bonds, 3-1/2% Series due 1969, being the initial series of bonds
issued under the Original Indenture; and
WHEREAS the Company has heretofore executed and
delivered to the Trustees twenty-six Supplemental Indentures
supplemental to the Original Indenture as follows:
Title Dated
First Supplemental Indenture as of June 1, 1946
Second Supplemental Indenture as of January 1, 1948
Third Supplemental Indenture as of December 1, 1950
Fourth Supplemental Indenture as of December 1, 1954
Fifth Supplemental Indenture as of June 1, 1957
Sixth Supplemental Indenture as of February 1, 1968
Seventh Supplemental Indenture as of April 1, 1969
Eighth Supplemental Indenture as of May 1, 1970
Ninth Supplemental Indenture as of July 1, 1976
Tenth Supplemental Indenture as of November 1, 1977
Eleventh Supplemental Indenture as of August 1, 1978
Twelfth Supplemental Indenture as of December 1, 1978
Thirteenth Supplemental Indenture as of November 1, 1979
Fourteenth Supplemental Indenture as of September 15,
1983
Fifteenth Supplemental Indenture as of October 1, 1988
Sixteenth Supplemental Indenture as of November 1, 1989
Seventeenth Supplemental Indenture as of December 1, 1990
Eighteenth Supplemental Indenture as of July 1, 1992
Nineteenth Supplemental Indenture as of May 1, 1993
Twentieth Supplemental Indenture as of June 1, 1993
Twenty-First Supplemental Indenture as of October 1, 1993
Twenty-Second Supplemental Indenture as of November 1, 1993
Twenty-Third Supplemental Indenture as of November 1, 1993
Twenty-Fourth Supplemental Indenture as of March 1, 1994
Twenty-Fifth Supplemental Indenture as of November 1, 1994
Twenty-Sixth Supplemental Indenture as of April 1, 1995
some for the purpose of creating an additional series of bonds
and of conveying additional property of the Company, and some for
the purpose of modifying or amending provisions of the Original
Indenture (the Original Indenture, all said Supplemental
Indentures and this Supplemental Indenture are herein
collectively called the "Indenture"); and
WHEREAS the Company has acquired certain additional
property hereinafter described or mentioned and, in compliance
with its covenants in the Original Indenture, desires, by this
Twenty-Seventh Supplemental Indenture, to evidence the subjection
of such additional property to the lien of the Indenture; and
WHEREAS as provided by the Original Indenture, the
Board of Directors of the Company, by resolution, has authorized
a new series of bonds, to mature June 1, 2025, and to be
designated as "First Mortgage Bonds, 7-3/4% Series due 2025," and
has authorized provisions permitted by the Original Indenture in
respect of the bonds of said series; and
WHEREAS the Board of Directors of the Company has
authorized the Company to enter into this Twenty-Seventh
Supplemental Indenture (herein sometimes referred to as "this
Twenty-Seventh Supplemental Indenture" or "this Supplemental
Indenture") conveying to the Trustees and subjecting to the lien
of the Indenture the property hereinafter described or mentioned,
creating and designating the new series of bonds, and specifying
the form and provisions of the bonds of said series provided or
permitted by the Indenture; and
WHEREAS the texts of the First Mortgage Bonds, 7-3/4%
Series due 2025, and of the Principal Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in
the forms following, respectively:
[FORM OF BOND]
[FACE]
THE EMPIRE DISTRICT ELECTRIC COMPANY
FIRST MORTGAGE BOND
7-3/4% SERIES DUE 2025
DUE JUNE 1, 2025
No. $
THE EMPIRE DISTRICT ELECTRIC COMPANY, a corporation
organized and existing under the laws of the State of Kansas
(hereinafter sometimes called the "Company"), for value received,
hereby promises to pay to or
registered assigns, on June 1, 2025, Dollars
($ ) at its office or agency in the City of Chicago,
Illinois, and to pay interest thereon at said office or agency at
the rate per annum specified in the title hereof from June 7,
1995 or from the most recent interest payment date to which
interest has been paid or duly provided for on the bonds of this
series, semi-annually on June 1 and December 1 in each year,
commencing on December 1, 1995, until the Company's obligation
with respect to such principal sum shall be discharged. The
principal of and the interest on this bond shall be payable in
any coin or currency of the United States of America which at the
time of payment shall be legal tender for the payment of public
and private debts. The interest so payable on any June 1 or
December 1 will, subject to certain exceptions provided in the
Twenty-Seventh Supplemental Indenture referred to on the reverse
hereof, be paid to the person in whose name this bond is
registered at the close of business on the May 15 or November 15
next preceding such June 1 or December 1. Notwithstanding
anything in the Original Indenture or this Supplemental Indenture
to the contrary, so long as the bonds of this series are in a
book-entry only system, payment of principal of and interest on
this bond will be in accordance with arrangements with The
Depository Trust Company, a New York corporation ("DTC").
Reference is made to the further provisions of this
bond set forth on the reverse hereof. Such further provisions
shall for all purposes have the same effect as though fully set
forth at this place.
This bond shall not be valid or become obligatory for
any purpose until the certificate of authentication endorsed
hereon shall have been signed by Harris Trust and Savings Bank,
or its successor, as a Trustee under the Indenture referred to on
the reverse hereof.
IN WITNESS WHEREOF, THE EMPIRE DISTRICT ELECTRIC
COMPANY has caused this bond to be signed in its name by the
facsimile signature of its President or a Vice President, and its
corporate seal to be imprinted hereon and attested by the
facsimile signature of its Secretary or an Assistant Secretary.
Dated:
THE EMPIRE DISTRICT ELECTRIC
COMPANY,
By
President.
Attest:
Secretary.
[FORM OF BOND]
[REVERSE]
This bond is one of an issue of bonds of the Company,
known as its First Mortgage Bonds, issued and to be issued in one
or more series under and equally and ratably secured (except as
any sinking, amortization, improvement or other fund, established
in accordance with the provisions of the indenture hereinafter
mentioned may afford additional security for the bonds of any
particular series) by a certain indenture of mortgage and deed of
trust, dated as of September 1, 1944, made by the Company to
Harris Trust and Savings Bank and The Joplin National Bank and
Trust Company (now Mercantile Bank of Joplin), as Trustees
(hereinafter called the "Trustees"), and certain indentures
supplemental thereto, including a Third Supplemental Indenture, a
Sixth Supplemental Indenture, a Seventh Supplemental Indenture,
an Eighth Supplemental Indenture, a Fourteenth Supplemental
Indenture, a Twenty-Fourth Supplemental Indenture and a
Twenty-Seventh Supplemental Indenture (dated respectively as of
December 1, 1950, February 1, 1968, April 1, 1969, May 1, 1970,
September 15, 1983, March 1, 1994 and June 1, 1995) made by the
Company to the Trustees (said indenture of mortgage and deed of
trust and all indentures supplemental thereto being hereinafter
collectively called the "Indenture"), to which Indenture
reference is hereby made for a description of the property
mortgaged, the nature and extent of the security, the rights and
limitations of rights of the Company, the Trustees, and the
holders of said bonds, and the terms and conditions upon which
said bonds are secured, to all of the provisions of which
Indenture, including the provisions permitting the issuance of
bonds of any series for property which, under the restrictions
and limitations therein specified, may be subject to liens prior
to the lien of the Indenture, the holder, by accepting this bond,
assents. To the extent permitted by, and as provided in, the
Indenture, the rights and obligations of the Company and of the
holders of said bonds may be changed and modified, with the
consent of the Company, by the holders of at least 60% in
aggregate principal amount of the bonds then outstanding, such
percentage being determined as provided in the Indenture, or in
the event that one or more but less than all of the series of
bonds then outstanding are affected by such change or
modification, by the holders of 60% in aggregate principal amount
of the outstanding bonds of such one or more series so affected.
Without the consent of the holder hereof no change or
modification of the rights and obligations of the Company and of
the holders of the bonds shall be made which will extend the time
of payment of the principal of or the interest on this bond or
reduce the principal amount hereof or the rate of interest hereon
or will otherwise modify the terms of payment of such principal
or interest (other than changes in any sinking or other fund) or
will permit the creation of any lien ranking prior to or on a
parity with the lien of the Indenture on any of the mortgaged
property, or will deprive any non-assenting bondholder of a lien
upon the mortgaged property for the security of such bondholder's
bonds, subject to certain exceptions, or will reduce the
percentage of bonds required for the aforesaid action under the
Indenture. This bond is one of a series of bonds designated as
the First Mortgage Bonds, 7-3/4% Series due 2025, of the Company.
The bonds of this series are subject to redemption
prior to maturity, upon not less than 30 nor more than 60 days'
prior notice, all as more fully provided in the Indenture, at the
option of the Company, at any time on and after June 1, 2005, as
a whole or from time to time in part, at the principal amount
thereof, with accrued interest to the date fixed for redemption
and the applicable premium (expressed as a percentage of the
principal amount) set forth in the table below for the twelve-
month period beginning June 1 in the appropriate year under the
heading "Redemption Premium":
Redemption
Redemption
Year Premium Year Premium
2005 3.8750% 2010 1.9375%
2006 3.4875 2011 1.5500
2007 3.1000 2012 1.1625
2008 2.7125 2013 0.7750
2009 2.3250 2014 0.3875
; and without premium if redeemed on or after June 1, 2015.
If this bond shall be called for redemption in whole or
in part, and payment of the redemption price shall be duly
provided by the Company as specified in the Indenture, interest
shall cease to accrue hereon (or on the portion hereof to be
redeemed) from and after the date of redemption fixed in the
notice thereof.
The principal of this bond may be declared or may
become due before the maturity hereof, on the conditions, in the
manner and at the times set forth in the Indenture, upon the
happening of a default as therein defined.
This bond is transferable by the registered owner
hereof in person or by his duly authorized attorney at the office
or agency of the Company in the City of Chicago, Illinois, upon
surrender and cancellation of this bond, and thereupon a new bond
of this series, for a like principal amount, will be issued to
the transferee in exchange therefor, as provided in the
Indenture. If this bond is transferred or exchanged between a
record date, as defined in the aforementioned Twenty-Seventh
Supplemental Indenture, and the interest payment date in respect
thereof, the new bond or bonds will bear interest from such
interest payment date unless the interest payable on such date is
not duly paid or provided for on such date. The Company and the
Trustees and any paying agent may deem and treat the person in
whose name this bond is registered as the absolute owner hereof
for the purpose of receiving payment as herein provided and for
all other purposes. This bond, alone or with other bonds of this
series, may in like manner be exchanged at such office or agency
for one or more new bonds of this series in authorized
denominations, of the same aggregate principal amount, all as
provided in the Indenture. Upon each such transfer or exchange
the Company may require the payment of any stamp or other tax or
governmental charge incident thereto.
No recourse under or upon any covenant or obligation of
the Indenture, or of any bonds thereby secured, or for any claim
based thereon, or otherwise in any manner in respect thereof,
shall be had against any incorporator, subscriber to the capital
stock, stockholder, officer or director, as such, of the Company,
whether former, present or future, either directly, or indirectly
through the Company or the Trustees or either of them, by the
enforcement of any subscription to capital stock, assessment or
otherwise, or by any legal or equitable proceeding by virtue of
any statute or otherwise (including, without limiting the
generality of the foregoing, any proceeding to enforce any
claimed liability of stockholders of the Company based upon any
theory of disregarding the corporate entity of the Company or
upon any theory that the Company was acting as the agent or
instrumentality of the stockholders), any and all such liability
of incorporators, stockholders, subscribers, officers and
directors, as such, being released by the holder hereof, by the
acceptance of this bond, and being likewise waived and released
by the terms of the Indenture under which this bond is issued.
Whenever the beneficial ownership of this Bond is
determined by a book-entry at a securities depository for the
Bonds, the foregoing requirements of holding, delivering or
transferring this Bond shall be modified to require the
appropriate person or entity to meet the requirements of the
securities depository as to registering or transferring the book-
entry to produce the same effect.
[FORM OF PRINCIPAL TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This bond is one of the bonds, of the series designated
therein, described in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
As Trustee,
By
Authorized Officer
and
WHEREAS the Company represents that all acts and things
necessary have happened, been done, and been performed, to make
the First Mortgage Bonds, 7-3/4% Series due 2025, when duly
executed by the Company and authenticated by the Principal
Trustee, and duly issued, the valid, binding and legal
obligations of the Company, and to make the Original Indenture,
the aforementioned twenty-six Supplemental Indentures and this
Supplemental Indenture valid and binding instruments for the
security thereof, in accordance with their terms;
NOW, THEREFORE, THIS TWENTY-SEVENTH SUPPLEMENTAL
INDENTURE WITNESSETH: That The Empire District Electric Company,
the Company herein named, in consideration of the premises and of
One Dollar ($1.00) to it duly paid by the Trustees at or before
the ensealing and delivery of these presents, the receipt whereof
is hereby acknowledged, and in order to secure the payment of the
principal of and the interest on all bonds from time to time
outstanding under the Indenture, according to the terms of said
bonds and of the coupons attached thereto, has granted,
bargained, sold, warranted, aliened, remised, released, conveyed,
assigned, transferred, mortgaged, pledged, set over and
confirmed, and by these presents does grant, bargain, sell,
warrant, alien, remise, release, convey, assign, transfer,
mortgage, pledge, set over and confirm unto Harris Trust and
Savings Bank and Mercantile Bank of Joplin, as Trustees, and
their respective successor or successors in the trust, and its or
their assigns forever, the following property, with the same
force and effect and subject to the same reservations and
exceptions, as though specifically described in the granting
clauses of the Original Indenture, that is to say:
SUBSTATIONS AND SWITCHING STATIONS
Taney County, Missouri
1. Land for New Riverside Substation #438:
Land located in the County of Taney, State of Missouri:
ALL THAT PART OF THE N 1/2 OF THE NE 1/4 OF SECTION 24,
TOWNSHIP 22, RANGE 22, DESCRIBED AS BEGINNING AT THE NE CORNER OF
SAID N 1/2 NE 1/4, THENCE SOUTH ALONG THE EAST LINE THEREOF 400
FEET; THENCE WEST 300 FEET; THENCE NORTH 400 FEET TO THE NORTH
LINE OF SAID NE 1/4; THENCE EAST 300 FEET ALONG SAID NORTH LINE
TO THE POINT OF BEGINNING.
ALSO all other property, whether real, personal or
mixed (except as in the Original Indenture expressly excepted) of
every nature and kind and wheresoever situated now owned or
hereafter acquired by the Company;
TOGETHER with all and singular the tenements,
hereditaments and appurtenances belonging or in anywise
appertaining to the aforesaid mortgaged property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of 8.01 of the
Original Indenture) the tolls, rents, revenues, issues, earnings,
income, products and profits thereof, and all the estate, right,
title and interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and
to the aforesaid mortgaged property, and every part and parcel
thereof;
SUBJECT, HOWEVER, to permitted encumbrances as defined
in the Original Indenture and, as to any property hereafter
acquired by the Company, to any lien thereon existing, and to any
liens for unpaid portions of the purchase money placed thereon at
the time of such acquisition, and also subject to the provisions
of Article 12 of the Original Indenture.
TO HAVE AND TO HOLD the same, unto the Trustees and
their and each of their respective successors and assigns
forever;
IN TRUST, NEVERTHELESS, upon the terms and trusts set
forth in the Indenture, so that the same shall be held
specifically by the Trustees under and subject to the terms of
the Indenture in the same manner and for the same trusts, uses
and purposes as if said properties had been specifically
contained and described in the Original Indenture;
PROVIDED, HOWEVER, and these presents are upon the
condition that, if the Company, its successors or assigns, shall
pay or cause to be paid unto the holders of the bonds the
principal and interest, and premium, if any, to become due in
respect thereof at the times and in the manner stipulated therein
and in the Indenture and shall keep, perform and observe all and
singular the covenants and promises in said bonds and in the
Indenture expressed to be kept, performed and observed by or on
the part of the Company, then the Indenture and the estate and
rights thereby granted shall cease, determine and be void,
otherwise to be and remain in full force and effect.
AND THE COMPANY, for itself and its successors, does
hereby covenant and agree to and with the Trustees, for the
benefit of those who shall hold the bonds and the coupons
appertaining thereto, or any of them, issued or to be issued
under the Indenture, as follows:
ARTICLE I
CREATION AND DESCRIPTION OF FIRST MORTGAGE BONDS,
7-3/4% SERIES DUE 2025
Section 1. A new series of bonds to be issued under
and secured by the Indenture is hereby created, to be designated
as First Mortgage Bonds, 7-3/4% Series due 2025 (hereinafter
sometimes called the "Bonds of the New Series" or "Bonds"). The
Bonds of the New Series shall be limited to an aggregate
principal amount of Thirty Million Dollars ($30,000,000),
excluding any Bonds of the New Series which may be authenticated
in lieu of or in substitution or exchange for other Bonds of the
New Series pursuant to the provisions of Article 2 or of 15.09
of the Original Indenture. Said Bonds and the certificate of
authentication of the Principal Trustee to be endorsed upon the
Bonds shall be substantially in the forms hereinbefore recited,
respectively. Each Bond shall be dated as of the date of its
authentication and all Bonds of the New Series shall mature
June 1, 2025 and shall bear interest at the rate of 7-3/4% per
annum, payable semi-annually on June 1 and December 1 in each
year, commencing December 1, 1995; both principal and interest
shall be payable at the office or agency of the Company in the
City of Chicago, Illinois, and in any coin or currency of the
United States of America which at the time of payment shall be
legal tender for the payment of public and private debts.
The holder of any Bond on any record date (as
hereinbelow defined) with respect to any interest payment date
shall be entitled to receive the interest payable on such
interest payment date notwithstanding the cancellation of such
Bond upon any exchange or transfer thereof subsequent to the
record date and prior to such interest payment date, except if
and to the extent that the Company shall default in the payment
of the interest due on such interest payment date, in which case
such defaulted interest shall be paid to the person in whose name
such Bond (or any Bond or Bonds issued upon transfer or exchange
thereof) is registered on a date fixed by the Company, which
shall be not more than 15 and not less than 10 days before the
date of payment of such defaulted interest. The term "record
date" as used in this Section with respect to any interest
payment date shall mean the close of business on the May 15 or
November 15, as the case may be, next preceding such interest
payment date, whether or not such May 15 or November 15 shall be
a legal holiday or a day on which banking institutions in the
City of Chicago, Illinois are authorized by law to remain closed.
Bonds of the New Series shall be registered Bonds in
book-entry form or in definitive form without coupons in
denominations of $1,000 and any integral multiple of $1,000 which
may be executed by the Company and delivered to the Principal
Trustee for authentication and delivery.
The Bonds of the New Series shall be registrable and
interchangeable at the office or agency of the Company in the
City of Chicago, Illinois, in the manner and upon the terms set
forth in 2.05 of the Original Indenture, upon payment of such
an amount as shall be sufficient to reimburse the Company for, or
to pay, any stamp or other tax or governmental charge incident
thereto.
Notwithstanding the provisions of 2.08 of the
Original Indenture, no service or other charge will be made for
any exchange or transfer of any Bond of the New Series.
If the Bonds of the New Series are to be issued in book-
entry form only, notwithstanding any provision of the Indenture
to the contrary, unless the Company shall otherwise direct (which
direction shall promptly be given at the written request of The
Depository Trust Company ("DTC")), all Bonds of the New Series
shall be registered in the name of Cede & Co., as nominee of DTC,
as registered owner of the Bonds of the New Series, and held in
the custody of DTC. Unless otherwise requested by DTC, a single
certificate will be issued and delivered to DTC. Beneficial
owners of Bonds of the New Series will not receive physical
delivery of Bond certificates except as hereinafter provided.
For so long as DTC shall continue to serve as securities
depository for the Bonds of the New Series as provided herein,
all transfers of beneficial ownership interests will be made by
book-entry only, and no investor or other party purchasing,
selling or otherwise transferring beneficial ownership of Bonds
of the New Series is to receive, hold or deliver any Bond
certificate.
With respect to Bonds of the New Series registered in
the name of Cede & Co., as nominee of DTC, the Trustees and the
Company shall have no responsibility or obligation to the
securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations on whose behalf DTC
was created to hold securities to facilitate the clearance and
settlement of securities transactions among DTC participants
("DTC Participants") or to any person on whose behalf a DTC
Participant holds an interest in the Bonds of the New Series.
Without limiting the immediately preceding sentence, the Trustees
and the Company shall have no responsibility or obligation with
respect to (i) the accuracy of the records of DTC, Cede & Co. or
any DTC Participant with respect to any ownership interest in the
Bonds of the New Series, (ii) the delivery to any DTC Participant
or any other person, other than the registered owner of the
Bonds of the New Series, of any notice with respect to the Bonds
of the New Series, including any notice of redemption, or
(iii) the payment to any DTC Participant or any other person,
other than the registered owner of the Bonds of the New Series,
of any amount with respect to principal of or premium, if any, or
interest on the Bonds of the New Series.
If the Bonds of the New Series are to be issued in book-
entry form only, replacement Bonds may be issued directly to
beneficial owners of Bonds of the New Series other than DTC, or
its nominee, but only in the event that (i) DTC determines not to
continue to act as securities depository for the Bonds of the New
Series (which determination shall become effective by the giving
of reasonable notice to the Company or the Principal Trustee); or
(ii) the Company has advised DTC of its determination (which
determination is conclusive as to DTC and beneficial owners of
the Bonds of the New Series) to terminate the services of DTC as
securities depository for the Bonds of the New Series; or
(iii) the Company has determined (which determination is
conclusive as to DTC and the beneficial owners of the Bonds of
the New Series) that the interests of the beneficial owners of
the Bonds of the New Series might be adversely affected if such
book-entry only system of transfer is continued. Upon occurrence
of the event set forth in (i) above, the Company shall use its
best efforts to attempt to locate another qualified securities
depository. If the Company fails to locate another qualified
securities depository to replace DTC, the Company shall direct
the Principal Trustee to cause to be authenticated and delivered
replacement Bonds of the New Series, in certificated form, to the
beneficial owners of the Bonds of the New Series. In the event
that the Company makes the determination described in (ii) or
(iii) above (provided that the Company undertakes no obligation
to make any investigation to determine the occurrence of any
events that would permit the Company to make any such
determination), and has made provisions to notify the beneficial
owners of Bonds of the New Series of such determination by
mailing an appropriate notice to DTC, the Company shall cause to
be issued replacement Bonds of the New Series in certificated
form to beneficial owners of the Bonds of the New Series as shown
on the records of DTC provided to the Trustee and the Company.
Whenever, during the term of the Bonds of the New
Series, the beneficial ownership thereof is determined by a book-
entry at DTC, the requirements in the Original Indenture or this
Supplemental Indenture relating to holding, delivering or
transferring Bonds or selection of Bonds to be redeemed shall be
deemed modified to require the appropriate person or entity to
meet the requirements of DTC as to registering or transferring
the book-entry to produce the same effect.
If the Bonds of the New Series are to be issued in book-
entry form only, notwithstanding any provision of the Original
Indenture or this Supplemental Indenture to the contrary, all
Bonds of the New Series issued hereunder, if DTC so requires,
shall bear a legend substantially to the following effect:
Unless this certificate is presented by an
authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to the Company
or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative
of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
If the Bonds of the New Series are to be issued in book-
entry form only, the Company and the Principal Trustee shall
enter into a letter of representations with DTC to implement the
book-entry only system of Bond registration described above.
If at any time DTC ceases to hold the Bonds of the New
Series, all references herein to DTC shall be of no further force
or effect.
Section 2. The Bonds of the New Series described in
Section 1 of this Article, in the aggregate principal amount of
Thirty Million Dollars ($30,000,000), shall be executed by the
Company and delivered to the Principal Trustee and, upon
compliance with all the provisions and requirements of the
Original Indenture in respect thereof, all or any portion of the
Bonds of the New Series may, from time to time, be authenticated
by the Principal Trustee and delivered (without awaiting the
filing or recording of this Supplemental Indenture) in accordance
with the written order or orders of the Company.
ARTICLE II
Redemption of Bonds of the New Series
Section 1. The Bonds of the New Series, in the manner
provided in Article 5 of the Original Indenture, shall be
redeemable at any time on or after June 1, 2005, and prior to
maturity, in whole or in part, at the option of the Company, at
the principal amount of the Bonds so to be redeemed and accrued
interest to the date fixed for redemption together with any
applicable premium as specified under the heading "Redemption
Premium" in the form of Bond set forth in this Supplemental
Indenture. The Bonds of the New Series shall not be redeemable
through the operation of any sinking fund.
Section 2. The provisions of 5.03, 5.04 and 5.05
of the Original Indenture shall be applicable to Bonds of the New
Series. The principal amount of Bonds of the New Series
registered in the name of any holder and to be redeemed on any
partial redemption shall be $1,000, or a multiple thereof.
Section 3. The holder of each and every Bond of the
New Series issued hereunder hereby, and by accepting the Bond,
agrees to accept payment thereof prior to maturity on the terms
and conditions provided for in this Article II.
ARTICLE III
No Sinking and Improvement Funds for Bonds
of the New Series
There shall be no Sinking and Improvement Fund for the
Bonds of the New Series.
ARTICLE IV
Dividend Covenants
The Company hereby covenants that, so long as any of
the Bonds of the New Series shall remain outstanding, the
covenants and agreements of the Company set forth in Section 4.11
of the Original Indenture as heretofore supplemented shall be and
remain in full force and effect and be duly observed and complied
with by the Company, notwithstanding that no First Mortgage
Bonds, 3-1/2 % Series due 1969, remain outstanding.
ARTICLE V
The Trustees
The Trustees accept the trusts created by this
Supplemental Indenture upon the terms and conditions hereof and
agree to perform such trusts upon the terms and conditions set
forth in the Original Indenture as heretofore supplemented and in
this Supplemental Indenture set forth. In general, each and every
term and condition contained in Article 13 of the Original
Indenture shall apply to this Supplemental Indenture with the
same force and effect as if the same were herein set forth in
full, with such omissions, variations and modifications thereof
as may be appropriate to make the same conform to this
Supplemental Indenture.
ARTICLE VI
Miscellaneous Provisions
Section 1. If the date for making any payment of
principal or interest or premium or the last date for performance
of any act or the exercising of any right, as provided in this
Supplemental Indenture, shall be a legal holiday or a day on
which banking institutions in the City of Chicago, Illinois, are
authorized by law to remain closed, such payment may be made or
act performed or right exercised on the next succeeding day not a
legal holiday or a day on which such banking institutions are
authorized by law to remain closed, with the same force and
effect as if done on the nominal date provided in this
Supplemental Indenture, and no interest shall accrue for the
period after such nominal date.
Section 2. The Original Indenture as heretofore and
hereby supplemented and amended is in all respects ratified and
confirmed; and the Original Indenture, this Supplemental
Indenture and all other indentures supplemental to the Original
Indenture shall be read, taken and construed as one and the same
instrument. Neither the execution of this Supplemental Indenture
nor anything herein contained shall be construed to impair the
lien of the Original Indenture as heretofore supplemented on any
of the property subject thereto, and such lien shall remain in
full force and effect as security for all bonds now outstanding
or hereafter issued under the Indenture. All terms defined in
Article 1 of the Original Indenture, as heretofore supplemented,
for all purposes of this Supplemental Indenture, shall have the
meanings therein specified, unless the context otherwise
requires.
Section 3. This Supplemental Indenture may be
simultaneously executed in any number of counterparts, and all
said counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
Section 4. Nothing in this Supplemental Indenture
contained, shall, or shall be construed to, confer upon any
person other than a holder of bonds issued under the Indenture,
the Company and the Trustees any right or interest to avail
himself of any benefit under any provision of the Indenture, as
heretofore supplemented and amended, or of this Supplemental
Indenture.
IN WITNESS WHEREOF, The Empire District Electric
Company, party of the first part, has caused its corporate name
to be hereunto affixed and this instrument to be signed by its
President or a Vice President, and its corporate seal to be
hereunto affixed and attested by its Secretary or an Assistant
Secretary for and in its behalf; and Harris Trust and Savings
Bank and Mercantile Bank of Joplin, parties of the second part,
have each caused its corporate name to be hereunto affixed, and
this instrument to be signed by its President or a Vice President
and its corporate seal to be hereunto affixed and attested by its
Secretary or an Assistant Secretary for and in its behalf, all as
of the day and year first above written.
The Empire District Electric
Company
By /s V.E. Brill
Name: V.E. Brill
Title: Vice President-Finance
[Corporate Seal]
Attest:
/s/ G.C. Hunter
Name: G.C. Hunter
Title: Secretary-Treasurer
Signed, sealed and delivered by
The Empire District Electric
Company in the presence of:
/s/ D.W. Gibson
Name: D.W. Gibson
/s/ K.S. Walters
Name: K.S. Walters
Harris Trust and Savings
Bank,
as Trustee,
By /s/ F.A. Pierson
Name: F.A. Pierson
Title: Vice President
[Corporate Seal]
Attest:
/s/ C. Potter
Name: C. Potter
Title: Assistant Secretary
Signed, sealed and delivered by
Harris Trust and Savings
Bank in the presence of:
/s/ F. Daguinsin
Name: F. Daguinsin
/s/ R. Johnson
Name: R. Johnson
Mercantile Bank of
Joplin,
as Trustee,
By /s/ Douglas Hauser
Name: Douglas Hauser
Title: Vice President
[Corporate Seal]
Attest:
/s/ C.E. Jardon
Name: C.E. Jardon
Title: Secretary
Signed, sealed and delivered by
Mercantile Bank of Joplin
in the presence of:
/s/ D.W. Gibson
Name: D.W. Gibson
/s/ K.S. Walters
Name: K.S. Walters
State of Missouri
} SS.:
County of Jasper
Be It Remembered, and I do hereby certify, that on this
1st day of June, 1995, before me, a Notary Public in and for the
County and State aforesaid, personally appeared V.E. Brill, the
Vice President-Finance of The Empire District Electric Company, a
Kansas corporation, and G.C. Hunter, the Secretary-Treasurer of
said corporation, who are both to me personally known, and both
personally known to me to be such officers and to be the
identical persons whose names are subscribed to the foregoing
instrument as such Vice President-Finance and
Secretary-Treasurer, respectively, and as the persons who
subscribed the name and affixed the seal of said The Empire
District Electric Company, one of the makers thereof, to the
foregoing instrument as its Vice President-Finance and
Secretary-Treasurer, and they each acknowledged to me that they,
being thereunto duly authorized, executed the same for the uses,
purposes and consideration therein set forth and expressed, and
in the capacities therein stated, as their free and voluntary act
and deed, and as the free and voluntary act and deed of said
corporation.
And the said V.E. Brill and G.C. Hunter, being each
duly sworn by me, severally deposed and said: that they reside in
the City of Joplin, Missouri and Webb City, Missouri,
respectively; that they were at that time Vice President-Finance
and Secretary-Treasurer, of said corporation; that they knew the
corporate seal of said corporation, and that the seal affixed to
said instrument was such corporate seal, and was thereto affixed
by said Secretary-Treasurer, and the said instrument was signed
by said Vice President-Finance, in pursuance of the power and
authority granted them by the By-Laws of said corporation, and by
authority of the Board of Directors thereof.
In Testimony Whereof, I have hereunto set my hand and
affixed my official and notarial seal at my office in said County
and State the day and year last above written.
My commission expires February 3, 1998.
[Notary Seal]
/s/ Linda S. Johnson
Linda S. Johnson
Notary Public
State of Illinois
} SS.:
County of Cook
Be It Remembered, and I do hereby certify, that on the
1st day of June, 1995, before me, a Notary Public in and for the
County and State aforesaid, personally appeared F.A. Pierson,
Vice President of Harris Trust and Savings Bank, an Illinois
corporation, and C. Potter, Assistant Secretary of said
corporation, who are both to me personally known, and both
personally known to me to be such officers and to be the
identical persons whose names are subscribed to the foregoing
instrument as such Vice President and Assistant Secretary,
respectively, and as the persons who subscribed the name and
affixed the seal of said Harris Trust and Savings Bank, one of
the makers thereof, to the foregoing instrument as its Vice
President and Assistant Secretary, and they each acknowledged to
me that they, being thereunto duly authorized, executed the same
for the uses, purposes and consideration therein set forth and
expressed, and in the capacities therein stated, as their free
and voluntary act and deed, and as the free and voluntary act and
deed of said corporation.
And the said F.A. Pierson and C. Potter, being each
duly sworn by me, severally deposed and said: that they reside in
Chicago, Illinois, that they were at that time respectively Vice
President and Assistant Secretary, of said corporation; that they
knew the corporate seal of said corporation, and that the seal
affixed to said instrument was such corporate seal, and was
thereto affixed by said Assistant Secretary, and the said
instrument was signed by said Vice President, in pursuance of the
power and authority granted them by the By-Laws of said
corporation, and by authority of the Board of Directors thereof.
In Testimony Whereof, I have hereunto set my hand and
affixed my official and notarial seal at my office in said County
and State the day and year last above written.
My commission expires December 14, 1997.
[Notary Seal]
/s/ Kimberly Lange
Kimberly Lange
Notary Public
State of Missouri
} SS.:
County of Jasper
Be It Remembered, and I do hereby certify, that on this
1st day of June, 1995, before me, a Notary Public in and for the
County and State aforesaid, personally appeared Douglas Hauser,
Vice President of Mercantile Bank of Joplin, a bank organized
under the laws of the State of Missouri, and C.E. Jardon,
Secretary of said corporation, who are both to me personally
known, and both personally known to me to be such officers and to
be the identical persons whose names are subscribed to the
foregoing instrument as such Vice President and Secretary,
respectively, and as the persons who subscribed the name and
affixed the seal of said Mercantile Bank of Joplin, one of the
makers thereof, to the foregoing instrument as its Vice President
and Secretary, and they each acknowledged to me that they, being
thereunto duly authorized, executed the same for the uses,
purposes and consideration therein set forth and expressed, and
in the capacities therein stated, as their free and voluntary act
and deed, and as the free and voluntary act and deed of said
corporation.
And the said Douglas Hauser and C.E. Jardon, being each
duly sworn by me, severally deposed and said: that they reside in
the City of Joplin, Missouri; that they were at the time
respectively Vice President and Secretary of said corporation;
that they knew the corporate seal of said corporation, and that
the seal affixed to said instrument was such corporate seal, and
was thereto affixed by said Secretary, and the said instrument
was signed by said Vice President, in pursuance of the power and
authority granted them by the By-Laws of said corporation, and by
authority of the Board of Directors thereof.
In Testimony Whereof, I have hereunto set my hand and
affixed my official and notarial seal at my office in said County
and State the day and year last above written.
My commission expires March 10, 1997.
[Notary Seal]
/s/ Andrena W. Roark
Andrena W. Roark
Notary Public