Exhibit 4(c)2
[CONFORMED]
======================================================================
KANSAS GAS AND ELECTRIC COMPANY
TO
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
(formerly Guaranty Trust Company of New York)
AND
W. A. SPOONER
(successor to Henry A. Theis, Oliver R. Brooks,
Wesley L. Baker, Edwin F. McMichael and R. Amundsen)
as Trustees under Kansas Gas and Electric Company's
Mortgage and Deed of Trust, Dated as of April 1, 1940
_______________________
THIRTY-NINTH SUPPLEMENTAL INDENTURE, as corrected*
Providing, among other things, for
First Mortgage Bonds, 7-1/2% Series A Due 2032
and
First Mortgage Bonds, 7-1/2% Series B Due 2027
and
First Mortgage Bonds, 7-1/2% Series C Due 2032
Dated as of April 15, 1994
======================================================================
* Correcting Article I, Section 1, paragraphs (II) and (III); Section
1, paragraphs (II) and (III); and, Article III, Section 1, paragraphs
(II) and (III) by deleting references to the term "Bond Fund" from,
and correcting certain typographical errors in, the Thirty-Ninth
Supplemental Indenture filed in the office of the Register of Deeds of
Sedgwick County, Kansas (filed on April 21, 1994, Film 1438, pages
1663-1686), and Office of Secretary of the State of Kansas (filed on
April 22, 1994 and indexed at No. 2015521).
THIRTY-NINTH SUPPLEMENTAL INDENTURE
INDENTURE, dated as of April 15, 1994, between KANSAS GAS AND
ELECTRIC COMPANY, a corporation of the State of Kansas (formerly named
KCA Corporation and successor by merger to Kansas Gas and Electric
Company, a corporation of the State of Kansas, hereinafter sometimes
called the ``Company-Kansas''), whose post office address is 120 East
First Street, Wichita, Kansas 67202 (hereinafter sometimes called the
``Company''), and MORGAN GUARANTY TRUST COMPANY OF NEW YORK (formerly
Guaranty Trust Company of New York), a corporation of the State of New
York, whose post office address is 60 Wall Street, New York, New York
10260-0060 (hereinafter sometimes called the ``Corporate Trustee''),
and W. A. SPOONER (successor to Henry A. Theis, Oliver R. Brooks,
Wesley L. Baker, Edwin F. McMichael and R. Amundsen, and being
hereinafter sometimes called the ``Individual Trustee''), whose post
office address is 1 Juliet Court, Old Bridge, New Jersey 08857 (the
Corporate Trustee and the Individual Trustee being hereinafter
together sometimes called the ``Trustees''), as Trustees under the
Mortgage and Deed of Trust, dated as of April 1, 1940 (hereinafter
called the ``Mortgage''), which Mortgage was executed and delivered by
Kansas Gas and Electric Company, a corporation of the State of West
Virginia to which the Company-Kansas was successor by merger
(hereinafter sometimes called the ``Company-West Virginia''), to
secure the payment of bonds issued or to be issued under and in
accordance with the provisions of the Mortgage, reference to which
Mortgage is hereby made, this Indenture (hereinafter sometimes called
the ``Thirty-ninth Supplemental Indenture'') being supplemental
thereto;
WHEREAS, the Company-West Virginia caused the Mortgage to be
filed for record as a mortgage of real property and as a chattel
mortgage in the offices of the Registers of Deeds in various counties
in the State of Kansas, and on April 25, 1940 paid to the Register of
Deeds of Sedgwick County, Kansas, that being the County in which the
Mortgage was first filed for record, the sum of $40,000 in payment of
the Kansas mortgage registration tax as provided by Section 79-3101 et
seq., General Statutes of Kansas 1935; and
WHEREAS, by the Mortgage, the Company-West Virginia covenanted
that it would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts as
might be necessary or proper to carry out more effectually the
purposes of the Mortgage and to make subject to the lien of the
Mortgage any property thereafter acquired, intended to be subject to
the lien thereof; and
WHEREAS, an instrument, dated May 31, 1949, was executed by the
Company-West Virginia appointing Oliver R. Brooks as Individual
Trustee in succession to said Henry A. Theis, resigned, under the
Mortgage, and by Oliver R. Brooks accepting the appointment as
Individual Trustee under the Mortgage in succession to said Henry A.
Theis, which instrument was filed for record in the offices of the
Registers of Deeds in various counties in the State of Kansas; and
WHEREAS, an instrument, dated March 3, 1958, was executed by the
Company-West Virginia appointing Wesley L. Baker as Individual Trustee
in succession to said Oliver R. Brooks, resigned, under the Mortgage,
and by Wesley L. Baker accepting the appointment as Individual Trustee
under the Mortgage in succession to said Oliver R. Brooks, which
instrument was filed for record in the offices of the Registers of
Deeds in various counties in the State of Kansas; and
WHEREAS, an instrument, dated November 20, 1969, was executed by
the Company-West Virginia appointing Edwin F. McMichael as Individual
Trustee in succession to said Wesley L. Baker, resigned, under the
Mortgage, and by Edwin F. McMichael accepting the appointment as
Individual Trustee under the Mortgage in succession to said Wesley L.
Baker, which instrument was filed for record in the offices of the
Registers of Deeds in various counties in the State of Kansas; and
WHEREAS, by the Twenty-seventh Supplemental Indenture mentioned
below, the Company-Kansas, among other things, appointed R. Amundsen
as Individual Trustee in succession to said Edwin F. McMichael,
resigned, under the Mortgage, and by R. Amundsen accepting the
appointment as Individual Trustee under the Mortgage in succession to
said Edwin F. McMichael; and
WHEREAS, by the Thirty-second Supplemental Indenture mentioned
below, the Company-Kansas, among other things, appointed W. A. Spooner
as Individual Trustee in succession to said R. Amundsen, resigned,
under the Mortgage, and by W. A. Spooner accepting the appointment as
Individual Trustee under the Mortgage in succession to said R.
Amundsen; and
WHEREAS, the Company-West Virginia executed and delivered to the
Trustees a First Supplemental Indenture, dated as of June 1, 1942
(which supplemental indenture is hereinafter sometimes called the
``First Supplemental Indenture''); and
WHEREAS, the Company-West Virginia caused the First Supplemental
Indenture to be filed for record as a mortgage of real property and as
a chattel mortgage in the offices of the Registers of Deeds in various
counties in the State of Kansas, but paid no mortgage registration tax
in connection with the recordation of the First Supplemental
Indenture, no such tax having been payable in connection with such
recordation; and
WHEREAS, the Company-West Virginia executed and delivered to the
Trustees the following supplemental indentures:
Designation Dated as of
Second Supplemental Indenture. . . . . . . March 1, 1948
Third Supplemental Indenture . . . . . . . December 1, 1949
Fourth Supplemental Indenture. . . . . . . June 1, 1952
Fifth Supplemental Indenture . . . . . . . October 1, 1953
Sixth Supplemental Indenture . . . . . . . March 1, 1955
Seventh Supplemental Indenture . . . . . . February 1, 1956
Eighth Supplemental Indenture. . . . . . . January 1, 1961
Ninth Supplemental Indenture . . . . . . . May 1, 1966
Tenth Supplemental Indenture . . . . . . . March 1, 1970
Eleventh Supplemental Indenture. . . . . . May 1, 1971
Twelfth Supplemental Indenture . . . . . . March 1, 1972
which supplemental indentures are hereinafter sometimes called the
Second through Twelfth Supplemental Indentures, respectively; and
WHEREAS, the Company-West Virginia caused the Second through
Eighth Supplemental Indentures to be filed for record as a mortgage of
real property and as a chattel mortgage in the offices of the
Registers of Deeds in various counties in the State of Kansas, and
caused the Ninth through Twelfth Supplemental Indentures to be filed
for record as a mortgage of real property in the offices of the
Registers of Deeds in various counties in the State of Kansas and as a
chattel mortgage in the Office of the Secretary of State of Kansas,
and on the following dates paid to the Register of Deeds of Sedgwick
County, Kansas, that being the County in which the Second through
Twelfth Supplemental Indentures were first filed for record as a
mortgage of real property, the following amounts:
Date Amount
March 30, 1948. . . . . . . . . . . $12,500
December 7, 1949. . . . . . . . . . 7,500
June 17, 1952 . . . . . . . . . . . 30,000
October 21, 1953. . . . . . . . . . 25,000
March 22, 1955. . . . . . . . . . . 25,000
March 5, 1956 . . . . . . . . . . . 17,500
January 24, 1961. . . . . . . . . . 17,500
May 17, 1966. . . . . . . . . . . . 40,000
March 10, 1970. . . . . . . . . . . 87,500
May 19, 1971. . . . . . . . . . . . 87,500
March 23, 1972. . . . . . . . . . . 62,500
such amounts being in payment of the Kansas mortgage registration tax
as provided by the then currently applicable sections of the statutes
of the State of Kansas in effect on those dates; and
WHEREAS, the Company-West Virginia was merged into the Company-
Kansas on May 31, 1973; and
WHEREAS, in order to evidence the succession of the Company-
Kansas to the Company-West Virginia and the assumption by the Company-
Kansas of the covenants and conditions of the Company-West Virginia in
the bonds and in the Mortgage contained, and to enable the Company-
Kansas to have and exercise the powers and rights of the Company-West
Virginia under the Mortgage in accordance with the terms thereof, the
Company-Kansas executed and delivered to the Trustees a Thirteenth
Supplemental Indenture, dated as of May 31, 1973 (which supplemental
indenture is hereinafter sometimes called the ``Thirteenth
Supplemental Indenture''); and
WHEREAS, the Company-Kansas caused the Thirteenth Supplemental
Indenture to be filed for record as a mortgage of real property in the
offices of the Registers of Deeds in various counties in the State of
Kansas and as a chattel mortgage in the Office of the Secretary of
State of Kansas, but paid no mortgage registration tax in connection
with the recordation of the Thirteenth Supplemental Indenture, no such
tax having been payable in connection with such recordation; and
WHEREAS, the Company-Kansas executed and delivered to the
Trustees the following supplemental indentures:
Designation Dated as of
Fourteenth Supplemental Indenture. . . . . . . July 1, 1975
Fifteenth Supplemental Indenture . . . . . . . December 1, 1975
Sixteenth Supplemental Indenture . . . . . . . September 1, 1976
Seventeenth Supplemental Indenture . . . . . . March 1, 1977
Eighteenth Supplemental Indenture. . . . . . . May 1, 1977
Nineteenth Supplemental Indenture. . . . . . . August 1, 1977
Twentieth Supplemental Indenture . . . . . . . March 15, 1978
Twenty-first Supplemental Indenture. . . . . . January 1, 1979
Twenty-second Supplemental Indenture . . . . . April 1, 1980
Twenty-third Supplemental Indenture. . . . . . July 1, 1980
Twenty-fourth Supplemental Indenture . . . . . August 1, 1980
Twenty-fifth Supplemental Indenture. . . . . . June 1, 1981
Twenty-sixth Supplemental Indenture. . . . . . December 1, 1981
Twenty-seventh Supplemental Indenture. . . . . May 1, 1982
Twenty-eighth Supplemental Indenture . . . . . March 15, 1984
Twenty-ninth Supplemental Indenture. . . . . . September 1, 1984
Thirtieth Supplemental Indenture . . . . . . . September 1, 1984
Thirty-first Supplemental Indenture. . . . . . February 1, 1985
Thirty-second Supplemental Indenture . . . . . April 15, 1986
Thirty-third Supplemental Indenture. . . . . . June 1, 1991
Thirty-fourth Supplemental Indenture . . . . . March 31, 1992
Thirty-fifth Supplemental Indenture. . . . . . December 17, 1992
Thirty-sixth Supplemental Indenture. . . . . . August 12, 1993
Thirty-seventh Supplemental Indenture. . . . . January 15, 1994
Thirty-eighth Supplemental Indenture . . . . . March 1, 1994
which supplemental indentures are hereinafter sometimes called the
Fourteenth through Thirty-eighth Supplemental Indentures,
respectively; and
WHEREAS, the Company-Kansas caused the Fourteenth Supplemental
Indenture to be filed for record as a mortgage of real property in the
offices of the Registers of Deeds in various counties in the State of
Kansas and as a chattel mortgage in the Office of the Secretary of
State of Kansas; and
WHEREAS, the Company-Kansas caused the Fifteenth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
December 10, 1975, Film 169, page 363), and as a chattel mortgage in
the Office of the Secretary of State of Kansas (filed on December 10,
1975 and indexed as No. 325,911); and
WHEREAS, the Company-Kansas caused the Sixteenth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
September 29, 1976, Film 211, page 363), and as a chattel mortgage in
the Office of the Secretary of State of Kansas (filed on September 29,
1976 and indexed as No. 363,835); and
WHEREAS, the Company-Kansas caused the Seventeenth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
March 16, 1977, Film 234, page 492), and as a chattel mortgage in the
Office of the Secretary of State of Kansas (filed on March 1, 1977 and
indexed as No. 384,759); and
WHEREAS, the Company-Kansas caused the Eighteenth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
May 26, 1977, Film 246, page 655), and as a chattel mortgage in the
Office of the Secretary of State of Kansas (filed on May 26, 1977 and
indexed as No. 394,573); and
WHEREAS, the Company-Kansas caused the Nineteenth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
August 31, 1977, Film 263, page 882), and as a chattel mortgage in the
Office of the Secretary of State of Kansas (filed on September 1, 1977
and indexed as No. 406,577); and
WHEREAS, the Company-Kansas caused the Twentieth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
March 29, 1978, Film 297, pages 635-656), and as a chattel mortgage in
the Office of the Secretary of State of Kansas (filed on March 30,
1978 and indexed as No. 434,072); and
WHEREAS, the Company-Kansas caused the Twenty-first Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
January 9, 1979, Film 345, page 648), and as a chattel mortgage in the
Office of the Secretary of State of Kansas (filed on January 10, 1979
and indexed as No. 470,851); and
WHEREAS, the Company-Kansas caused the Twenty-second Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
April 2, 1980, Film 413, page 1,468), and as a chattel mortgage in the
Office of the Secretary of State of Kansas (filed on April 3, 1980 and
indexed as No. 533,415); and
WHEREAS, the Company-Kansas caused the Twenty-third Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
July 1, 1980, Film 425, page 1,003), and as a chattel mortgage in the
Office of the Secretary of State of Kansas (filed on July 2, 1980 and
indexed as No. 546,185); and
WHEREAS, the Company-Kansas caused the Twenty-fourth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
August 28, 1980, Film 435, page 266), and as a chattel mortgage in the
Office of the Secretary of State of Kansas (filed on August 29, 1980
and indexed as No. 554,543); and
WHEREAS, the Company-Kansas caused the Twenty-fifth Supplemental
Indenture to be filed for record as a mortgage of real property in
the office of the Register of Deeds of Sedgwick County, Kansas (filed
on June 30, 1981, Film 483, page 1,512), and as a chattel mortgage in
the Office of the Secretary of State of Kansas (filed on June 30, 1981
and indexed as No. 601,270); and
WHEREAS, the Company-Kansas caused the Twenty-sixth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
December 30, 1981, Film 510, page 300), and as a chattel mortgage in
the Office of the Secretary of State of Kansas (filed on December 31,
1981 and indexed as No. 628,293); and
WHEREAS, the Company-Kansas caused the Twenty-seventh
Supplemental Indenture to be filed for record as a mortgage of real
property in the office of the Register of Deeds of Sedgwick County,
Kansas (filed on May 6, 1982, Film 526, page 1,141), and as a chattel
mortgage in the Office of the Secretary of State of Kansas (filed on
May 7, 1982 and indexed as No. 650,115); and
WHEREAS, the Company-Kansas caused the Twenty-eighth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
March 22, 1984, Film 645, page 1,524), and as a chattel mortgage in
the Office of the Secretary of State of Kansas (filed on March 23,
1984 and indexed as No. 796,449); and
WHEREAS, the Company-Kansas caused the Twenty-ninth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
September 5, 1984, Film 681, page 763), and as a chattel mortgage in
the Office of the Secretary of State of Kansas (filed on September 6,
1984 and indexed as No. 852,425); and
WHEREAS, the Company-Kansas caused the Thirtieth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
September 12, 1984, Film 682, page 1,087), and as a chattel mortgage
in the Office of the Secretary of State of Kansas (filed on September
13, 1984 and indexed as No. 854,284); and
WHEREAS, the Company-Kansas caused the Thirty-third Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
June 18, 1991, Film 1177, page 0876), and as a security agreement in
the Office of Secretary of State of Kansas (filed on June 18, 1991 and
indexed as No. 1,693,446); and
WHEREAS, the Company on the following dates paid to the Register
of Deeds of Sedgwick County, Kansas, that being the County in which
the Fourteenth through Thirtieth Supplemental Indentures and the
Thirty-third Supplemental Indenture were first filed for record as a
mortgage of real property, the following amounts:
Date Amount
July 2, 1975. . . . . . . . . . . $100,000
December 10, 1975 . . . . . . . . 48,750
September 29, 1976. . . . . . . . 62,500
March 16, 1977. . . . . . . . . . 62,500
May 26, 1977. . . . . . . . . . . 25,000
August 31, 1977 . . . . . . . . . 6,100
March 29, 1978. . . . . . . . . . 62,500
January 9, 1979 . . . . . . . . . 36,250
April 2, 1980 . . . . . . . . . . 67,500
July 1, 1980. . . . . . . . . . . 37,500
August 28, 1980 . . . . . . . . . 63,750
June 30, 1981 . . . . . . . . . . 75,000
December 30, 1981 . . . . . . . . 62,500
May 6, 1982 . . . . . . . . . . . 100,000
March 22, 1984. . . . . . . . . . 93,750
September 5, 1984 . . . . . . . . 75,000
September 12, 1984. . . . . . . . 50,000
June 18, 1991 . . . . . . . . . . 334,100
such amounts being in payment of the Kansas mortgage registration tax
as provided by the then currently applicable sections of the statutes
of the State of Kansas in effect on those dates; and
WHEREAS, the Company-Kansas caused the Thirty-first Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
February 1, 1985, Film 707, page 378), and as a chattel mortgage in
the Office of the Secretary of State of Kansas (filed on February 4,
1985 and indexed as No. 895,468), but paid no mortgage registration
tax in connection with the recordation of the Thirty-first
Supplemental Indenture, no such tax having been payable in connection
with such recordation; and
WHEREAS, the Company-Kansas caused the Thirty-second Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
April 16, 1986, Film 791, page 1,336), and as a chattel mortgage in
the Office of the Secretary of State of Kansas (filed on April 17,
1986 and indexed as No. 1,048,212), but paid no mortgage registration
tax in connection with the recordation of the Thirty-second
Supplemental Indenture, no such tax having been payable in connection
with such recordation; and
WHEREAS, in order to evidence the succession of the Company to
the Company-Kansas and the assumption by the Company of the covenants
and conditions of the Company-Kansas in the bonds and in the Mortgage
contained, and to enable the Company to have and exercise the powers
and rights of the Company-Kansas under the Mortgage in accordance with
the terms thereof, the Company executed and delivered to the Trustees
a Thirty-fourth Supplemental Indenture, dated as of March 31, 1992
(which supplemental indenture is hereinafter sometimes called the
``Thirty-fourth Supplemental Indenture''); and
WHEREAS, the Company-Kansas caused the Thirty-fourth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
March 31, 1992, Film 1236, page 987), and as a security agreement in
the Office of Secretary of State of Kansas (filed on March 31, 1992
and indexed as No. 1,780,893), but paid no mortgage registration tax
in connection with the recordation of the Thirty-fourth Supplemental
Indenture, no such tax having been payable in connection with such
recordation; and
WHEREAS, the Company caused the Thirty-fifth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
December 16, 1992, Film 301, page 0104), and as a security agreement
in the Office of Secretary of State of Kansas (filed on December 16,
1992 and indexed as No. 1,861,886), but paid no mortgage registration
tax in connection with the recordation of the Thirty-fifth
Supplemental Indenture, no such tax having been payable in connection
with such recordation; and
WHEREAS, the Company-Kansas caused the Thirty-sixth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
August 10, 1993, Film 1364, page 0515), and as a security agreement
in the Office of Secretary of State of Kansas (filed on August 11,
1993 and indexed as No. 1,936,501), but paid no mortgage registration
tax in connection with the recordation of the Thirty-sixth
Supplemental Indenture, no such tax having been payable in connection
with such recordation; and
WHEREAS, the Company-Kansas caused the Thirty-seventh
Supplemental Indenture to be filed for record as a mortgage of real
property in the office of the Register of Deeds of Sedgwick County,
Kansas (filed on January 18, 1994, Film 1411, page 0710), and as a
security agreement in the Office of Secretary of State of Kansas
(filed on January 18, 1994 and indexed as No. 1,985,104), but paid no
mortgage registration tax in connection with the recordation of the
Thirty-seventh Supplemental Indenture, no such tax having been payable
in connection with such recordation; and
WHEREAS, the Company-Kansas caused the Thirty-eighth Supplemental
Indenture to be filed for record as a mortgage of real property in the
office of the Register of Deeds of Sedgwick County, Kansas (filed on
February 28, 1994, Film 1422, page 1046), and as a security agreement
in the Office of Secretary of State of Kansas (filed on February 28,
1994, and indexed as No. 1,997,743), but paid no mortgage restriction
tax in connection with the recordation of the Thirty-eighth
Supplemental Indenture, no such tax having been payable in connection
with such recordation; and
WHEREAS, the Company-West Virginia, the Company-Kansas or the
Company has from time to time caused to be filed in the respective
offices of the above-mentioned Registers of Deeds and Secretary of
State affidavits executed by the Trustees under the Mortgage,
preserving and continuing the lien thereof either as a chattel
mortgage in accordance with the provisions of K.S.A. 58-303
(Section 58-303 of the General Statutes of Kansas 1935) or as a
security agreement under the provisions of K.S.A. 84-9-401 et seq.;
and
WHEREAS, in addition to the aforesaid filings for record in the
respective offices of the above-mentioned Registers of Deeds, the
Company-West Virginia, the Company-Kansas or the Company has filed
copies of the Mortgage and the First through Thirty-eighth
Supplemental Indentures, certified as true by it, with the Secretary
of State of Kansas; and
WHEREAS, the Company-West Virginia, the Company-Kansas or the
Company has heretofore issued, in accordance with the provisions of
the Mortgage, as heretofore supplemented, the following series of
First Mortgage Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
3-3/8% Series due 1970. . . $16,000,000 None
3-1/8% Series due 1978. . . 5,000,000 None
2-3/4% Series due 1979. . . 3,000,000 None
3-3/8% Series due 1982. . . 12,000,000 None
3-5/8% Series due 1983. . . 10,000,000 None
3-3/8% Series due 1985. . . 10,000,000 None
3-3/8% Series due 1986. . . 7,000,000 None
4-5/8% Series due 1991. . . 7,000,000 None
5-5/8% Series due 1996. . . 16,000,000 $16,000,000
8-1/2% Series due 2000. . . 35,000,000 None
8-1/8% Series due 2001. . . 35,000,000 None
7-3/8% Series due 2002. . . 25,000,000 None
9-5/8% Series due 2005. . . 40,000,000 None
6% Series due 1985. . . . . 7,000,000 None
7-3/4% Series due 2005. . . 12,500,000 None
8-3/8% Series due 2006. . . 25,000,000 None
8-1/2% Series due 2007. . . 25,000,000 None
6% Series due 2007. . . . . 10,000,000 10,000,000*
5-7/8% Series due 2007. . . 21,940,000 21,940,000*
8-7/8% Series due 2008. . . 30,000,000 None
6.80% Series due 2004 . . . 14,500,000 14,500,000*
16-1/4% Series due 1987 . . 30,000,000 None
6-1/2% Series due 1983. . . 15,000,000 None
7-1/4% Series due 1983. . . 25,500,000 None
14-7/8% Series due 1987-1991 30,000,000 None
16% Series due 1996 . . . . 25,000,000 None
15-3/4% Series due 1989 . . 40,000,000 None
13-1/2% Series due 1989 . . 100,000,000 None
14.05% Series due 1991. . . 30,000,000 None
14-1/8% Series due 1991 . . 20,000,000 None
10-7/8% Series due 1987 . . 30,000,000 None
9-3/4% Series due 2016. . . 50,000,000 None
7.00% Series A due 2031 . . 18,900,000 18,900,000
7.00% Series B due 2031 . . 308,600,000 308,600,000
7.60% Series due 2003 . . . 135,000,000 135,000,000
6-1/2% Series due 2005. . . 65,000,000 65,000,000
6.20% Series due 2006 . . . 100,000,000 100,000,000
5.10% Series due 2023 . . . 13,982,500 13,982,500
____________________
* Upon the issuance of the Thirty-ninth Series,
Fortieth Series and Forty-first Series pursuant
to this Supplemental Indenture and deposit of
the proceeds plus additional funds from the
Company with the St. Marys, La Cygne and Wamego
Trustees, these series will no longer be
Outstanding.
hereinafter sometimes called Bonds of the First through Thirty-eighth
Series; and
WHEREAS, Section 8 of the Mortgage provides that the form of each
series of bonds (other than the First Series) issued thereunder and of
the coupons to be attached to the coupon bonds of such series shall be
established by Resolution of the Board of Directors of the Company and
that the form of such series, as established by said Board of
Directors, shall specify the descriptive title of the bonds and
various other terms thereof, and may also contain such provisions not
inconsistent with the provisions of the Mortgage as the Board of
Directors may, in its discretion, cause to be inserted therein
expressing or referring to the terms and conditions upon which such
bonds are to be issued and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other
things, that any power, privilege or right expressly or impliedly
reserved to or in any way conferred upon the Company by any provision
of the Mortgage whether such power, privilege or right is in any way
restricted or is unrestricted, may be in whole or in part waived or
surrendered or subjected to any restriction if at the time
unrestricted or to additional restriction if already restricted, and
the Company may enter into any further covenants, limitations or
restrictions for the benefit of any one or more series of bonds issued
thereunder, or the Company may cure any ambiguity contained therein or
in any supplemental indenture, or may establish the terms and
provisions of any series of bonds other than said First Series, by an
instrument in writing executed and acknowledged by the Company in such
manner as would be necessary to entitle a conveyance of real estate to
record in all of the states in which any property at the time subject
to the lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to create a new series of bonds;
and
WHEREAS, the execution and delivery by the Company of this
Thirty-ninth Supplemental Indenture, and the terms of the bonds of the
Thirty-ninth Series, Fortieth Series, and Forty-first Series,
hereinafter referred to, have been duly authorized by the Board of
Directors of the Company by appropriate Resolutions of said Board of
Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That Kansas Gas and Electric Company, in consideration of the
premises and of One Dollar ($1) 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 further evidence of assurance
of the estate, title and rights of the Trustees and in order further
to secure the payment both of the principal of and interest and
premium, if any, on the bonds from time to time issued under the
Mortgage, according to their tenor and effect and the performance of
all the provisions of the Mortgage (including any instruments
supplemental thereto and any modification made as in the Mortgage
provided) and of said bonds, hereby grants, bargains, sells, releases,
conveys, assigns, transfers, mortgages, pledges, sets over and
confirms (subject, however, to Excepted Encumbrances as defined in
Section 6 of the Mortgage) unto Morgan Guaranty Trust Company of New
York and to W. A. Spooner, as Trustees under the Mortgage, and to
their successor or successors in said trust, and to said Trustees and
their successors and assigns forever, all property, real, personal
and mixed, acquired by the Company after the date of the execution and
delivery of the Mortgage, in addition to property covered by the First
through the Thirty-eighth Supplemental Indentures (except any herein
or in the Mortgage, as heretofore supplemented, expressly excepted),
now owned or, subject to the provisions of Section 87 of the Mortgage,
hereafter acquired by the Company and wheresoever situated, including
(without in anywise limiting or impairing by the enumeration of the
same the scope and intent of the foregoing or of any general
description contained in this Thirty-ninth Supplemental Indenture) all
lands, flowage rights, water rights, flumes, raceways, dams, rights of
way and roads; all steam and power houses, gas plants, street lighting
systems, standards and other equipment incidental thereto, telephone,
radio and television systems, air-conditioning systems and equipment
incidental thereto, water works, steam heat and hot water plants,
lines, service and supply systems, bridges, culverts, tracks, rolling
stock, ice or refrigeration plants and equipment, street and
interurban railway systems, offices, buildings and other structures
and the equipment thereof; all machinery, engines, boilers, dynamos,
electric and gas machines, regulators, meters, transformers,
generators, motors, electrical, gas and mechanical appliances,
conduits, cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, wires, cables, tools, implements, apparatus,
furniture, chattels and chooses in action; all municipal and other
franchises; all lines for the transmission and distribution of
electric current, gas, steam heat or water for any purpose, including
poles, wires, cables, pipes, conduits, ducts and all apparatus for use
in connection therewith; all real estate, lands, easements,
servitudes, licenses, permits, franchises, privileges, rights of way
and other rights in or relating to real estate or the occupancy of the
same and (except as herein or in the Mortgage, as heretofore
supplemented, expressly excepted), all the right, title and interest
of the Company in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed in
connection with any property hereinbefore or in the Mortgage, as
heretofore supplemented, described.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid
property or any part thereof, with the reversion and reversions,
remainder and remainders and (subject to the provisions of Section 57
of the Mortgage) the tolls, rents, revenues, issues, earnings, income,
product 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
property and franchises and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 87 of the Mortgage, all the property, rights and
franchises acquired by the Company after the date hereof (except any
herein or in the Mortgage, as heretofore supplemented, expressly
excepted), shall be as fully embraced within the lien hereof and the
lien of the Mortgage, as if such property, rights and franchises were
now owned by the Company and were specifically described herein and
conveyed hereby.
PROVIDED that the following are not and are not intended to be
now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, pledged, set over or confirmed
hereunder and are hereby expressly excepted from the lien and
operation of this Thirty-ninth Supplemental Indenture and from the
lien and operation of the Mortgage, viz.: (1) cash, shares of stock
and obligations (including bonds, notes and other securities) not
hereafter specifically pledged, paid, deposited or delivered under the
Mortgage or covenanted so to be; (2) merchandise, equipment, materials
or supplies held for the purpose of sale in the usual course of
business and fuel, oil and similar materials and supplies consumable
in the operation of any properties of the Company; vehicles and
automobiles; (3) bills, notes and accounts receivable, and all
contracts, leases and operating agreements not specifically pledged
under the Mortgage or covenanted so to be; and (4) electric energy,
and other materials or products generated, manufactured, produced or
purchased by the Company for sale, distribution or use in the ordinary
course of its business; provided, however, that the property and
rights expressly excepted from the lien and operation of the Mortgage
and this Thirty-ninth Supplemental Indenture in the above subdivisions
(2) and (3) shall (to the extent permitted by law) cease to be so
excepted in the event that either or both of the Trustees or a
receiver or trustee shall enter upon and take possession of the
Mortgaged and Pledged Property in the manner provided in Article XII
of the Mortgage by reason of the occurrence of a Default as defined in
said Article XII.
THERE is expressly excepted from the lien of the Mortgage and
from the lien hereof all property of the Company located in the State
of Missouri now owned or hereafter acquired unless such property in
the State of Missouri shall be subjected to the lien of the Mortgage
by an indenture or indentures supplemental thereto, pursuant to
authorization by the Board of Directors of the Company.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed by the Company
as aforesaid, or intended so to be, unto the Trustees, their
successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same
terms, trusts and conditions and subject to and with the same provisos
and covenants as are set forth in the Mortgage, as supplemented, this
Thirty-ninth Supplemental Indenture being supplemental thereto.
AND IT IS HEREBY COVENANTED by the Company that all the terms,
conditions, provisos, covenants and provisions contained in the
Mortgage, as supplemented, shall affect and apply to the property
hereinbefore described and conveyed and to the estate, rights,
obligations and duties of the Company and Trustees and the
beneficiaries of the trust with respect to said property, and to the
Trustees and their successors as Trustees of said property in the same
manner and with the same effect as if the said property had been owned
by the Company at the time of the execution of the Mortgage, and had
been specifically and at length described in and conveyed to the
Trustees by the Mortgage as a part of the property therein stated to
be conveyed.
The Company further covenants and agrees to and with the Trustees
and their successors in said trust under the Mortgage, as follows:
ARTICLE I.
THIRTY-NINTH SERIES OF BONDS
SECTION 1. (I) There shall be a series of bonds designated ``7-
1/2% Series A due 2032'' (herein sometimes referred to as the
``Thirty-ninth Series''), each of which shall also bear the
descriptive title, First Mortgage Bond, and the form thereof, which is
established by Resolution of the Board of Directors of the Company,
shall contain suitable provisions with respect to the matters
hereinafter in this Article I specified. Bonds of the Thirty-ninth
Series shall be limited to $14,500,000 in aggregate principal amount,
except as provided in Section 16 of the Mortgage, shall mature on
April 15, 2032, and shall be issued as fully registered bonds in
denominations of Five Thousand Dollars and in any multiple or
multiples of Five Thousand Dollars. Bonds of the Thirty-ninth Series
shall bear interest at the rate of 7-1/2% per annum, payable on the
Interest Payment Date for the 1994 St. Marys Bonds, commencing
June 21, 1994, on which date interest from April 28, 1994 will be
payable, and thereafter, the Bonds of the Thirty-ninth Series shall
bear interest from the Business Day following the preceding Interest
Payment Date for the 1994 St. Marys Bonds. The principal of and
interest on bonds of the Thirty-ninth Series shall be payable at the
office or agency of the Company in the Borough of Manhattan, The City
of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for public and private
debts. Bonds of the Thirty-ninth Series shall be dated as in Section
10 of the Mortgage provided.
(II) Upon the redemption, in whole or in part, of the City of
St. Marys, Kansas, Pollution Control Revenue Refunding Bonds (Kansas
Gas and Electric Company Project) Series 1994 (hereinafter referred to
as the ``1994 St. Marys Bonds''), issued under the Indenture of Trust,
dated as of April 15, 1994 (hereinafter referred to as the ``St. Marys
Indenture''), of the City of St. Marys, Kansas, bonds of the Thirty-
ninth Series shall be redeemed in whole or in like part. To effect
the redemption of bonds of the Thirty-ninth Series, the trustee under
the St. Marys Indenture (hereinafter referred to as the ``St. Marys
Trustee'') shall deliver to the Corporate Trustee (and mail a copy
thereof to the Company) a written demand (hereinafter referred to as a
``St. Marys Redemption Demand'') for the redemption of bonds of the
Thirty-ninth Series equal in principal amount to the principal amount
of the 1994 St. Marys Bonds to be redeemed. The St. Marys Redemption
Demand shall be signed by the President, a Vice President, an
Assistant Vice President or a Trust Officer of the St. Marys Trustee
and shall state: (1) the aggregate principal amount of the 1994 St.
Marys Bonds then outstanding under the St. Marys Indenture; (2) the
principal amount of the 1994 St. Marys Bonds to be redeemed; (3) the
interest thereon to be payable on the redemption date; (4) the
redemption date and that notice thereof has been given as
required in the St. Marys Indenture; (5) in the case of an optional
redemption of the 1994 St. Marys Bonds, that the Company has informed
the St. Marys Trustee that the Company intends to deposit sufficient
available funds with the St. Marys Trustee to effect such redemption;
and (6) that the Corporate Trustee is thereby instructed to call for
redemption bonds of the Thirty-ninth Series equal in principal amount
to the principal amount of the 1994 St. Marys Bonds specified in (2)
above. The St. Marys Redemption Demand shall also contain a waiver of
notice of such redemption by the St. Marys Trustee, as holder of all
bonds of the Thirty-ninth Series then outstanding. The Corporate
Trustee may conclusively presume the statements contained in the St.
Marys Redemption Demand to be correct.
Except as provided in the next sentence, redemption of bonds of
the Thirty-ninth Series shall be at the principal amount of the bonds
to be redeemed, together with accrued interest to the redemption date,
and such amount shall become and be due and payable on the redemption
date. In the event the 1994 St. Marys Bonds bear interest at a Long-
Term Interest Rate (as defined in the St. Marys Indenture), the bonds
of the Thirty-ninth Series will be redeemable as follows: If the 1994
St. Marys Bonds bear interest at the Long-Term MATES Rate (as defined
in the St. Marys Indenture), the bonds of the Thirty-ninth Series
shall be redeemable at the same percentages of their principal amount
and during the same call periods as are established under the St.
Marys Indenture with respect to the 1994 St. Marys Bonds, plus accrued
interest to the date of redemption. If, on the date the 1994 St.
Marys Bonds begin to bear a Long-Term Interest Rate ("Effective
Date"), the length of the Long-Term Interest Rate Period falls within
one of the entries in the Long-Term Interest Rate Period column, the
bonds of the Thirty-ninth Series will not be redeemable for the number
of years after the Effective Date shown in the No-call Period column.
After the No-call Period, the bonds of the Thirty-ninth Series may be
redeemed at the percentage of the principal amount shown in the
Initial Premium column. The premium will decline every six months by
one-half of one percentage point until the bonds of the Thirty-ninth
Series are redeemable without premium.
Long-Term Interest Rate Period
But Less Than No-Call Initial
Greater Than Or Equal To Period Premium
15 years N/A 10 years 102%
10 years 15 years 7 years 101.5
7 years 10 years 5 years 101
4 years 7 years 3 years 101
3 years 4 years 2 years 100.5
2 years 3 years 1 year 100.5
1 year 2 years 1 year 100
The Company hereby covenants that it shall notify the Corporate
Trustee no later than thirty days after the date, if any, on which the
1994 St. Marys Bonds commence bearing a Long-Term Interest Rate, such
notice to set forth the Long-Term Interest Rate Period then in effect
for the 1994 St. Marys Bonds; and of any change to the redemption
table if different from above.
The Company hereby covenants that if a St. Marys Redemption
Demand shall be delivered to the Trustee, the Company, except as
otherwise provided in paragraph (III) of this Section 1, will deposit,
on or before the redemption date, with the Corporate Trustee, in
accordance with Article X of the Mortgage, an amount in cash
sufficient to redeem the bonds of the Thirty-ninth Series so called
for redemption.
(III) All bonds of the Thirty-ninth Series shall be pledged
by the Company with the St. Marys Trustee to secure the payment of the
principal of, and interest on, the 1994 St. Marys Bonds. The
obligation of the Company to make payments with respect to the
principal of and up to 7 1/2% per annum of the interest on bonds of
the Thirty-ninth Series shall be fully or partially, as the case may
be, satisfied and discharged to the extent that, at the time that any
such payment shall be due, the then due principal of and interest on
the 1994 St. Marys Bonds shall have been fully or partially paid, or
there shall be held by the St. Marys Trustee pursuant to the St. Marys
Indenture sufficient available funds to fully or partially pay the
then due principal of and interest on the 1994 St. Marys Bonds. The
Corporate Trustee may conclusively presume that the obligation of the
Company to make payments with respect to the principal of and interest
on bonds of the Thirty-ninth Series shall have been fully satisfied
and discharged unless and until the Corporate Trustee shall have
received a written notice from the St. Marys Trustee, signed by its
President, a Vice President or a Trust Officer, stating (i) that
timely payment of the principal of or interest on the 1994 St. Marys
Bonds required to be made by the Company has not been made, (ii) that
there are not sufficient available funds held by the St. Marys Trustee
pursuant to the St. Marys Indenture to make such payment, and
(iii) the amount of funds, in addition to available funds held by the
St. Marys Trustee pursuant to the St. Marys Indenture, required to
make such payment. Notwithstanding any other provisions of this
Supplemental Indenture, interest on the bonds of the Thirty-ninth
Series shall be deemed fully satisfied and discharged as provided
herein even if the interest rate on bonds of the Thirty-ninth Series
may be higher or lower than the interest rate on the 1994 St. Marys
Bonds at the time interest on the 1994 St. Marys Bonds is paid.
(IV) At the option of the registered owner, any bonds of the
Thirty-ninth Series, upon surrender thereof, for cancellation, at the
office or agency of the Company in the Borough of Manhattan, The City
of New York, shall be exchangeable for a like aggregate principal
amount of bonds of the same series of other authorized denominations.
The bonds of the Thirty-ninth Series may bear such legends as may be
necessary to comply with any law or with any rules or regulations made
pursuant thereto or with the rules or regulations of any stock
exchange or to conform to usage with respect thereto.
(V) Bonds of the Thirty-ninth Series shall be transferable
upon the surrender thereof, for cancellation together with a written
instrument of transfer in form approved by the registrar duly executed
by the registered owner or by his duly authorized attorney, at the
office or agency of the Company in the Borough of Manhattan, The City
of New York.
ARTICLE II.
FORTIETH SERIES OF BONDS
SECTION 1. (I) There shall be a series of bonds designated ``7-
1/2% Series B due 2027'' (herein sometimes referred to as the
``Fortieth Series''), each of which shall also bear the descriptive
title, First Mortgage Bond, and the form thereof, which is established
by Resolution of the Board of Directors of the Company, shall contain
suitable provisions with respect to the matters hereinafter in this
Article II specified. Bonds of the Fortieth Series shall be limited
to $21,940,000 in aggregate principal amount, except as provided in
Section 16 of the Mortgage, shall mature on April 15, 2027, and shall
be issued as fully registered bonds in denominations of Five Thousand
Dollars and in any multiple or multiples of Five Thousand Dollars.
Bonds of the Fortieth Series shall bear interest at the rate of 7-1/2%
per annum, payable on the Interest Payment Date for the 1994 La Cygne
Bonds (as defined below), commencing June 21, 1994, on which date
interest from April 28, 1994 will be payable, and thereafter, the
Bonds of the Fortieth Series shall bear interest from the Business Day
following the preceding Interest Payment Date for the 1994 La Cygne
Refunding Bonds. The principal of and interest on bonds of the
Fortieth Series shall be payable at the office or agency of the
Company in the Borough of Manhattan, The City of New York, in such
coin or currency of the United States of America as at the time of
payment is legal tender for public and private debts. Bonds of the
Fortieth Series shall be dated as in Section 10 of the Mortgage
provided.
(II) Upon the redemption, in whole or in part, of the City of La
Cygne, Kansas, Pollution Control Revenue Refunding Bonds (Kansas Gas
and Electric Company Project) Series 1994B (hereinafter referred to as
the ``1994 La Cygne Bonds''), issued under the Indenture of Trust,
dated as of April 15, 1994 (hereinafter referred to as the ``La Cygne
Indenture''), of the City of La Cygne, Kansas, Bonds of the Fortieth
Series shall be redeemed in whole or in like part. To effect the
redemption of bonds of the Fortieth Series, the trustee under the La
Cygne Indenture (hereinafter referred to as the ``La Cygne Trustee'')
shall deliver to the Corporate Trustee (and mail a copy thereof to the
Company) a written demand (hereinafter referred to as a ``La Cygne
Redemption Demand'') for the redemption of bonds of the Fortieth
Series equal in principal amount to the principal amount of the 1994
La Cygne Bonds to be redeemed. The La Cygne Redemption Demand shall
be signed by the President, a Vice President, an Assistant Vice
President or a Trust Officer of the La Cygne Trustee and shall state:
(1) the aggregate principal amount of the 1994 La Cygne Bonds then
outstanding under the La Cygne Indenture; (2) the principal amount of
the 1994 La Cygne Bonds to be redeemed; (3) the interest thereon to be
payable on the redemption date; (4) the redemption date and that
notice thereof has been given as required in the La Cygne Indenture;
(5) in the case of an optional redemption of the 1994 La Cygne Bonds,
that the Company has informed the La Cygne Trustee that the Company
intends to deposit sufficient available funds with the La Cygne
Trustee to effect such redemption; and (6) that the Corporate Trustee
is thereby instructed to call for redemption bonds of the Fortieth
Series equal in principal amount to the principal amount of the 1994
La Cygne Bonds specified in (2) above. The La Cygne Redemption Demand
shall also contain a waiver of notice of such redemption by the La
Cygne Trustee, as holder of all bonds of the Fortieth Series then
outstanding. The Corporate Trustee may conclusively presume the
statements contained in the La Cygne Redemption Demand to be correct.
Except as provided in the next sentence, redemption of bonds of
the Fortieth Series shall be at the principal amount of the bonds to
be redeemed, together with accrued interest to the redemption date,
and such amount shall become and be due and payable on the redemption
date. In the event the 1994 La Cygne Bonds bear interest at a Long-
Term Interest Rate (as defined in the La Cygne Indenture), the bonds
of the Fortieth Series will be redeemable as follows: If the 1994 La
Cygne Bonds bear interest at the Long-Term MATES Rate (as defined in
the La Cygne Indenture), the bonds of the Fortieth Series shall be
redeemable at the same percentages of their principal amount and
during the same call periods as are established under the La Cygne
Indenture with respect to the 1994 La Cygne Bonds, plus accrued
interest to the date of redemption. If, on the date the 1994 La Cygne
Bonds begin to bear a Long-Term Interest Rate ("Effective Date"), the
length of the Long-Term Interest Rate Period falls within one of the
entries in the Long-Term Interest Rate Period column, the bonds of the
Fortieth Series will not be redeemable for the number of years after
the Effective Date shown in the No-call Period column. After the No-
call Period, the bonds of the Fortieth Series may be redeemed at the
percentage of the principal amount shown in the Initial Premium
column. The premium will decline every six months by one-half of one
percentage point until the bonds of the Fortieth Series are redeemable
without premium.
Long-Term Interest Rate Period
But Less Than No-Call Initial
Greater Than Or Equal To Period Premium
15 years N/A 10 years 102%
10 years 15 years 7 years 101.5
7 years 10 years 5 years 101
4 years 7 years 3 years 101
3 years 4 years 2 years 100.5
2 years 3 years 1 year 100.5
1 year 2 years 1 year 100
The Company hereby covenants that it shall notify the Corporate
Trustee no later than thirty days after the date, if any, on which the
1994 La Cygne Bonds commence bearing a Long-Term Interest Rate, such
notice to set forth the Long-Term Interest Rate Period then in effect
for the 1994 La Cygne Bonds; and of any change in the redemption table
if different from above.
The Company hereby covenants that if a La Cygne Redemption Demand
shall be delivered to the Trustee, the Company, except as otherwise
provided in paragraph (III) of this Section 1, will deposit, on or
before the redemption date, with the Corporate Trustee, in accordance
with Article X of the Mortgage, an amount in cash sufficient to redeem
the bonds of the Fortieth Series so called for redemption.
(III) All bonds of the Fortieth Series shall be pledged by the
Company with the La Cygne Trustee to secure the payment of the
principal of, and up to 7 1/2% per annum of the interest on, the 1994
La Cygne Bonds. The obligation of the Company to make payments with
respect to the principal of and interest on bonds of the Fortieth
Series shall be fully or partially, as the case may be, satisfied and
discharged to the extent that, at the time that any such payment shall
be due, the then due principal of and interest on the 1994 La Cygne
Bonds shall have been fully or partially paid, or there shall be held
by the La Cygne Trustee pursuant to the La Cygne Indenture sufficient
available funds to fully or partially pay the then due principal of
and interest on the 1994 La Cygne Bonds. The Corporate Trustee may
conclusively presume that the obligation of the Company to make
payments with respect to the principal of and interest on bonds of the
Fortieth Series shall have been fully satisfied and discharged unless
and until the Corporate Trustee shall have received a written notice
from the La Cygne Trustee, signed by its President, a Vice President
or a Trust Officer, stating (i) that timely payment of the principal
of or interest on the 1994 La Cygne Bonds required to be made by the
Company has not been made, (ii) that there are not sufficient
available funds held by the La Cygne Trustee pursuant to the La Cygne
Indenture to make such payment, and (iii) the amount of funds, in
addition to available funds held by the La Cygne Trustee pursuant to
the La Cygne Indenture, required to make such payment.
Notwithstanding any other provisions of this Supplemental Indenture,
interest on the bonds of the Fortieth Series shall be deemed fully
satisfied and discharged as provided herein even if the interest rate
on bonds of the Fortieth Series may be higher or lower than the
interest rate on the 1994 La Cygne Bonds at the time interest on the
1994 La Cygne Bonds is paid.
(IV) At the option of the registered owner, any bonds of the
Fortieth Series, upon surrender thereof, for cancellation, at the
office or agency of the Company in the Borough of Manhattan, The City
of New York, shall be exchangeable for a like aggregate principal
amount of bonds of the same series of other authorized denominations.
The bonds of the Fortieth Series may bear such legends as may be
necessary to comply with any law or with any rules or regulations made
pursuant thereto or with the rules or regulations of any stock
exchange or to conform to usage with respect thereto.
(V) Bonds of the Fortieth Series shall be transferable upon the
surrender thereof, for cancellation together with a written instrument
of transfer in form approved by the registrar duly executed by the
registered owner or by his duly authorized attorney, at the office or
agency of the Company in the Borough of Manhattan, The City of New
York.
ARTICLE III.
FORTY-FIRST SERIES OF BONDS
SECTION 1. (I) There shall be a series of bonds designated ``7-
1/2% Series C due 2032'' (herein sometimes referred to as the ``Forty-
first Series''), each of which shall also bear the descriptive title,
First Mortgage Bond, and the form thereof, which is established by
Resolution of the Board of Directors of the Company, shall contain
suitable provisions with respect to the matters hereinafter in this
Article III specified. Bonds of the Forty-first Series shall be
limited to $10,000,000 in aggregate principal amount, except as
provided in Section 16 of the Mortgage, shall mature on April 15,
2032, and shall be issued as fully registered bonds in denominations
of Five Thousand Dollars and in any multiple or multiples of Five
Thousand Dollars. Bonds of the Forty-first Series shall bear interest
at the rate of 7-1/2% per annum, payable on the Interest Payment Date
for the 1994 Wamego Bonds, commencing June 21, 1994, on which date
interest from April 28, 1994 will be payable, and thereafter, the
Bonds of the Forty-first Series shall bear interest from the Business
day following the preceding Interest Payment Date for the 1994 Wamego
Bonds. The principal of and interest on bonds of the Forty-first
Series shall be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, in such coin or currency
of the United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Forty-first Series
shall be dated as in Section 10 of the Mortgage provided.
(II) Upon the redemption, in whole or in part, of the City of
Wamego, Kansas, Pollution Control Revenue Refunding Bonds (Kansas Gas
and Electric Company Project) Series 1994 (hereinafter referred to as
the ``1994 Wamego Bonds''), issued under the Indenture of Trust, dated
as of March 1, 1994 (hereinafter referred to as the ``Wamego
Indenture''), of the City of Wamego, Kansas, bonds of the Forty-first
Series shall be redeemed in whole or in like part. To effect the
redemption of bonds of the Forty-first Series, the trustee under the
Wamego Indenture (hereinafter referred to as the ``Wamego Trustee'')
shall deliver to the Corporate Trustee (and mail a copy thereof to the
Company) a written demand (hereinafter referred to as a ``Wamego
Redemption Demand'') for the redemption of bonds of the Forty-first
Series equal in principal amount to the principal amount of the 1994
Wamego Bonds to be redeemed. The Wamego Redemption Demand shall be
signed by the President, a Vice President, an Assistant Vice President
or a Trust Officer of the Wamego Trustee and shall state: (1) the
aggregate principal amount of the 1994 Wamego Bonds then outstanding
under the Wamego Indenture; (2) the principal amount of the 1994
Wamego Bonds to be redeemed; (3) the interest thereon to be payable on
the redemption date; (4) the redemption date and that notice thereof
has been given as required in the Wamego Indenture; (5) in the case of
an optional redemption of the 1994 Wamego Bonds, that the Company has
informed the Wamego Trustee that the Company intends to deposit
sufficient available funds with the Wamego Trustee to effect such
redemption; and (6) that the Corporate Trustee is thereby instructed
to call for redemption bonds of the Forty-first Series equal in
principal amount to the principal amount of the 1994 Wamego Bonds
specified in (2) above. The Wamego Redemption Demand shall also
contain a waiver of notice of such redemption by the Wamego Trustee,
as holder of all bonds of the Forty-first Series then outstanding.
The Corporate Trustee may conclusively presume the statements
contained in the Wamego Redemption Demand to be correct.
Except as provided in the next sentence, redemption of bonds of
the Forty-first Series shall be at the principal amount of the bonds
to be redeemed, together with accrued interest to the redemption date,
and such amount shall become and be due and payable on the redemption
date. In the event the 1994 Wamego Bonds bear interest at a Long-Term
Interest Rate (as defined in the Wamego Indenture), the bonds of the
Forty-First Series will be redeemable as follows: If the 1994 Wamego
Bonds bear interest at the Long-Term MATES Rate (as defined in the
Wamego Indenture), the bonds of the Forty-first Series shall be
redeemable at the same percentages of their principal amount and
during the same call periods as are established under the Wamego
Indenture with respect to the 1994 Wamego Bonds, plus accrued interest
to the date of redemption. If, on the date the 1994 Wamego Bonds
begin to bear a Long-Term Interest Rate ("Effective Date"), the length
of the Long-Term Interest Rate Period falls within one of the entries
in the Long-Term Interest Rate Period column, the bonds of the Forty-
first Series will not be redeemable for the number of years after the
Effective Date shown in the No-call Period column. After the No-call
Period, the bonds of the Forty-first Series may be redeemed at the
percentage of the principal amount shown in the Initial Premium
column. The premium will decline every six months by one-half of one
percentage point until the bonds of the Forty-first Series are
redeemable without premium.
Long-Term Interest Rate Period
But Less Than No-Call Initial
Greater Than Or Equal To Period Premium
15 years N/A 10 years 102%
10 years 15 years 7 years 101.5
7 years 10 years 5 years 101
4 years 7 years 3 years 101
3 years 4 years 2 years 100.5
2 years 3 years 1 year 100.5
1 year 2 years 1 year 100
The Company hereby covenants that it shall notify the Corporate
Trustee no later than thirty days after the date, if any, on which the
1994 Wamego Bonds commence bearing a Long-Term Interest Rate, such
notice to set forth the Long-Term Interest Rate Period then in effect
for the 1994 Wamego Bonds; and of any change to the redemption table
if different from above.
The Company hereby covenants that if a Wamego Redemption Demand
shall be delivered to the Trustee, the Company, except as otherwise
provided in paragraph (III) of this Section 1, will deposit, on or
before the redemption date, with the Corporate Trustee, in accordance
with Article X of the Mortgage, an amount in cash sufficient to redeem
the bonds of the Forty-first Series so called for redemption.
(III) All bonds of the Forty-first Series shall be pledged by
the Company with the Wamego Trustee to secure the payment of the
principal of, and up to 7 1/2% per annum of the interest on, the 1994
Wamego Bonds. The obligation of the Company to make payments with
respect to the principal of and interest on bonds of the Forty-first
Series shall be fully or partially, as the case may be, satisfied and
discharged to the extent that, at the time that any such payment shall
be due, the then due principal of and interest on the 1994 Wamego
Bonds shall have been fully or partially paid, or there shall be held
by the Wamego Trustee pursuant to the Wamego Indenture sufficient
available funds to fully or partially pay the then due principal of
and interest on the 1994 Wamego Bonds. The Corporate Trustee may
conclusively presume that the obligation of the Company to make
payments with respect to the principal of and interest on bonds of the
Forty-first Series shall have been fully satisfied and discharged
unless and until the Corporate Trustee shall have received a written
notice from the Wamego Trustee, signed by its President, a Vice
President or a Trust Officer, stating (i) that timely payment of the
principal of or interest on the 1994 Wamego Bonds required to be made
by the Company has not been made, (ii) that there are not sufficient
available funds held by the Wamego Trustee pursuant to the Wamego
Indenture to make such payment, and (iii) the amount of funds, in
addition to available funds held by the Wamego Trustee pursuant to the
Wamego Indenture, required to make such payment. Notwithstanding any
other provisions of this Supplemental Indenture, interest on the bonds
of the Forty-first Series shall be deemed fully satisfied and
discharged as provided herein even if the interest rate on bonds of
the Forty-first Series may be higher or lower than the interest rate
on the 1994 Wamego Bonds at the time interest on the 1994 Wamego Bonds
is paid.
(IV) At the option of the registered owner, any bonds of the
Forty-first Series, upon surrender thereof, for cancellation, at the
office or agency of the Company in the Borough of Manhattan, The City
of New York, shall be exchangeable for a like aggregate principal
amount of bonds of the same series of other authorized denominations.
The bonds of the Forty-first Series may bear such legends as may be
necessary to comply with any law or with any rules or regulations made
pursuant thereto or with the rules or regulations of any stock
exchange or to conform to usage with respect thereto.
(V) Bonds of the Forty-first Series shall be transferable upon
the surrender thereof, for cancellation together with a written
instrument of transfer in form approved by the registrar duly executed
by the registered owner or by his duly authorized attorney, at the
office or agency of the Company in the Borough of Manhattan, The City
of New York.
ARTICLE IV.
MISCELLANEOUS PROVISIONS
Section 1. All bonds of the Thirty-ninth Series, Fortieth Series
and Forty-first Series acquired by the Company shall forthwith be
delivered to the Corporate Trustee for cancellation.
SECTION 2. Section 64 of the Mortgage is hereby deleted in its
entirety.
SECTION 3. Subject to the amendments provided for in this
Thirty-ninth Supplemental Indenture, the terms defined in the
Mortgage, as heretofore supplemented, shall, for all purposes of this
Thirty-ninth Supplemental Indenture, have the meanings specified in
the Mortgage, as heretofore supplemented.
SECTION 4. The Trustees hereby accept the trusts herein
declared, provided, created or supplemented and agree to perform the
same upon the terms and conditions set forth herein and in the
Mortgage, as heretofore amended and supplemented, and upon the
following terms and conditions:
The Trustees shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Thirty-ninth
Supplemental Indenture or for or in respect of the recitals contained
herein, all of which recitals are made by the Company solely. In
general, each and every term and condition contained in Article XVI of
the Mortgage, as heretofore amended and supplemented, shall apply to
and form part of this Thirty-ninth Supplemental Indenture with the
same force and effect as if the same were herein set forth in full
with such omissions, variations and insertions, if any, as may be
appropriate to make the same conform to the provisions of this Thirty-
ninth Supplemental Indenture.
SECTION 5. Subject to the provisions of Article XV and
Article XVI of the Mortgage, as heretofore amended and supplemented,
whenever in this Thirty-ninth Supplemental Indenture any of the
parties hereto is named or referred to, this shall be deemed to
include the successors or assigns of such party, and all the covenants
and agreements in this Thirty-ninth Supplemental Indenture contained
by or on behalf of the Company or by or on behalf of the Trustees
shall bind and inure to the benefit of the respective successors and
assigns of such parties whether so expressed or not.
SECTION 6. Nothing in this Thirty-ninth Supplemental Indenture,
expressed or implied, is intended, or shall be construed, to confer
upon, or to give to, any person, firm or corporation, other than the
parties hereto and the holders of the bonds and coupons Outstanding
under the Mortgage, any right, remedy or claim under or by reason of
this Thirty-ninth Supplemental Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all the covenants,
conditions, stipulations, promises and agreements in this Thirty-ninth
Supplemental Indenture contained by or on behalf of the Company shall
be for the sole and exclusive benefit of the parties hereto, and of
the holders of the bonds and of the coupons Outstanding under the
Mortgage.
SECTION 7. The Company reserves the right, subject to
appropriate corporate action, but without any consent or other action
by holders of bonds of the Thirty-ninth Series, Fortieth Series,
Forty-first Series, or of any subsequent series of bonds, to make such
amendments to the Mortgage, as supplemented, as shall be necessary in
order to (A) permit the issuance of additional Prior Lien Bonds other
than to the Corporate Trustee (i) in a principal amount not to exceed
the principal amount of Bonds which could then be issued on the basis
of Property Additions under the Mortgage or (ii) upon the redemption
or retirement of Prior Lien Bonds secured by such Prior Lien, (B) to
remove the requirement that Prior Lien Bonds be issued to the
Corporate Trustee, (C) remove the provisions of Article V which
eliminate from the calculation of unfunded net Property Additions
available for issuance of Bonds the amount of any Property Additions
subject to a Prior Lien if the aggregate amount of Outstanding Prior
Lien Bonds is 15% or more of the sum of the Outstanding Bonds and
Prior Lien Bonds, and (D) make such other amendments to the Mortgage
as may be necessary or desirable in the opinion of the Company to
effect the foregoing.
SECTION 8. This Thirty-ninth Supplemental Indenture shall be
executed in several counterparts, each of which shall be an original
and all of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, KANSAS GAS AND ELECTRIC COMPANY has caused
its corporate name to be hereunto affixed, and this instrument to be
signed and sealed by its President or one of its Vice Presidents, and
its corporate seal to be attested by its Secretary or one of its
Assistant Secretaries for and in its behalf, MORGAN GUARANTY TRUST
COMPANY OF NEW YORK has caused its corporate name to be hereunto
affixed, and this instrument to be signed and sealed by one of its
Vice Presidents and its corporate seal to be attested by one of its
Assistant Secretaries, and has hereunto set his hand and affixed his
seal, all as of the day and year first above written.
KANSAS GAS AND ELECTRIC COMPANY
By /s/ Kent R. Brown
Kent R. Brown
President
Attest:
/s/ Richard D. Terrill
Richard D. Terrill
Secretary
Executed, sealed and delivered by
KANSAS GAS AND ELECTRIC COMPANY,
in the presence of:
/s/ Stacy F. Kramer
Stacy F. Kramer
/s/ Robert J. Knott
Robert J. Knott
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Trustee
By /s/ Norma Pane
Norma Pane
Vice President
Attest:
/s/ Michele D. Sledge
Assistant Secretary
/s/ W. A. Spooner
(W.A. Spooner)
Executed, sealed and delivered by
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK and W.A. SPOONER, in
the presence of:
/s/ Madeline Schneider
/s/ Dennis Karoly
STATE OF KANSAS )
: ss.:
COUNTY OF SEDGWICK )
BE IT REMEMBERED, that on this 15th day of April, A.D. 1994,
before me, the undersigned, a Notary Public within and for the
County and State aforesaid, came Kent R. Brown, the President of
KANSAS GAS AND ELECTRIC COMPANY, a corporation duly organized,
incorporated and existing under the laws of the State of Kansas,
who is personally known to me to be such officer, and who is
personally known to me to be the same person who executed, as
such officer, the within instrument of writing, and such person
duly acknowledged the execution of the same to be the act and
deed of said corporation and that said instrument of writing was
so executed by order of the Board of Directors of said
corporation.
On this 15th day of April, 1994, before me appeared Kent R.
Brown, to me personally known, who being by me duly sworn did say
that he is the President of KANSAS GAS AND ELECTRIC COMPANY, and
that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was
signed and sealed in behalf of said corporation by authority of
its Board of Directors, and said Kent R. Brown acknowledged said
instrument to be the free act and deed of said corporation.
On the 15th day of April in the year 1994, before me
personally came Kent R. Brown to me known, who, being by me duly
sworn, did depose and say that he resides at 4907 Portwest
Circle, Wichita, Kansas; that he is the President of KANSAS GAS
AND ELECTRIC COMPANY, one of the corporations described in and
which executed the above instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that he signed his name
thereto by like order.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal on the day and year above written.
/s/ Regina I. Degarmo
REGINA I. DEGARMO
NOTARY PUBLIC - STATE OF KANSAS
MY APPOINTMENT EXPIRES AUGUST 4, 1997
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on this 15th day of April, A.D. 1994,
before me, the undersigned, a Notary Public within and for the
County and State aforesaid, came Norma Pane, a Vice President of
Morgan Guaranty Trust Company of New York, a corporation, duly
organized, incorporated and existing under the laws of the State
of New York, who is personally known to me to be such officer,
and who is personally known to me to be the same person who
executed, as such officer, the within instrument of writing, and
such person duly acknowledged the execution of the same to be the
act and deed of said corporation and that said instrument of
writing was so executed by authority of the Board of Directors of
said corporation.
On this 15th day of April, 1994, before me appeared Norma
Pane, to me personally known, who being by me duly sworn did say
that she is a Vice President of MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, and that the seal affixed to the foregoing instrument
is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors, and said Norma Pane
acknowledged said instrument to be the free act and deed of said
corporation.
On the 15th day of April in the year 1994, before me
personally came Norma Pane, to me known, who, being by me duly
sworn, did depose and say that she resides at 2057 63rd Street,
Brooklyn, New York; that she is a Vice President of MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, one of the corporations
described in and which executed the above instrument; that she
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that
she signed her name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal on the day and year above written.
/s/ Alison M. Levchuck
ALISON M. LEVCHUCK
NOTARY PUBLIC, STATE OF NEW YORK
NO. 4997425
QUALIFIED IN NASSAU COUNTY
COMMISSION EXPIRES JUNE 8, 1994
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 15th day of April in the year 1994, before me, the
undersigned, a Notary Public in and for the State of New York, in
the County of New York, personally appeared and came W. A.
Spooner, to me known and known to me to be the person described
in and who executed the within and foregoing instrument and whose
name is subscribed thereto and acknowledged to me that he
executed the same.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal the day and year in this certificate
first above written.
/s/ Alison M. Levchuck
ALISON M. LEVCHUCK
NOTARY PUBLIC, STATE OF NEW YORK
NO. 4997425
QUALIFIED IN NASSAU COUNTY
COMMISSION EXPIRES JUNE 8, 1994