EXHIBIT 4D(14)
EXECUTION COPY
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UTILICORP UNITED INC.
And
BANK ONE TRUST COMPANY, NA
(formerly, The First National Bank of Chicago),
as Trustee
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7.35% Senior Deferrable Notes due 2004
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TWELFTH SUPPLEMENTAL INDENTURE
Dated as of September 29, 1999
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TWELFTH SUPPLEMENTAL INDENTURE, dated as of September 29, 1999,
(herein called the "Twelfth Supplemental Indenture"), between UTILICORP
UNITED INC., a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), party of the first
part, and Bank One Trust Company, NA (formerly known as The First National
Bank of Chicago), a national banking association duly organized and existing
under the laws of the United States, as Trustee under the Indenture referred
to below (hereinafter called the "Trustee"), party of the second part.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of November 1, 1990 (hereinafter called the
"Indenture"), to provide for the issuance from time to time of certain of its
unsecured senior notes (hereinafter called the "Securities"), the form and
terms of which are to be established as set forth in Sections 201 and 301 of
the Indenture; and
WHEREAS, Section 901 of the Indenture provides, among other things,
that the Company and the Trustee may enter into indentures supplemental to
the Indenture for, among other things, the purpose of establishing the form
or terms of the Securities of any series as permitted in Sections 201 and 301
of the Indenture; and
WHEREAS, the Company desires to create a series of the Securities
in an aggregate principal amount of $257,731,975 to be designated the "7.35 %
Senior Deferrable Notes due 2004" (the "Senior Notes"), and all action on the
part of the Company necessary to authorize the issuance of the Senior Notes
under the Indenture and this Twelfth Supplemental Indenture has been duly
taken; and
WHEREAS, all acts and things necessary to make the Senior Notes
when executed by the Company and completed, authenticated and delivered by
the Trustee as in the Indenture and this Twelfth Supplemental Indenture
provided, the valid and binding obligations of the Company and to constitute
these presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed; and
WHEREAS, Section 901 of the Indenture provides, among other things,
that the Company and the Trustee may enter into indentures supplemental to the
Indenture to, among other things, add to the covenants of the Company for the
benefit of the Holders of all or any
series of Securities; and
WHEREAS, UCU Capital Trust I, a Delaware statutory business trust
(the "Trust"), has offered to the public up to $250,000,000, in aggregate
liquidation amount of its 7.35% Trust Preferred Securities (the "Preferred
Securities") and, in connection therewith, the Company has agreed to purchase
up to $7,731,975 in value of the aggregate liquidation amount of the Trust's
common securities (the "Common Securities" and together with the Preferred
Securities, the "Trust Securities"), each representing an undivided
beneficial interest in the assets of the Trust, and proposes to invest the
proceeds from such offerings in up to $257,731,975 aggregate principal amount
of the Senior Notes;
NOW, THEREFORE, THIS TWELFTH SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises, the Company covenants and
agrees with the Trustee, for the equal benefit of holders of the Senior
Notes, as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITION OF TERMS. Unless the context otherwise requires:
(a) a term not defined herein that is defined in the Indenture has
(b) a term defined anywhere in this Twelfth Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article
of this Twelfth Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Applicable Margin; (ii) Applicable Principal Amount;
(iii) Common Securities; (iv) Delaware Trustee; (v) Failed Remarketing;
(vi) Guarantee; (vii) Preferred Securities; (viii) Preferred Security
Certificate; (ix) Property Trustee; (x) Redemption Amount; (xi)
Redemption Price; (xii) Regular Trustees; (xiii) Remarketing Agreement;
(xiv) Tax Event; (xv) Remarketing Date; (xvii) Reset Rate; (xvii) Tax
Event Redemption; (xviii) Treasury Portfolio; and (xviv) Two-Year
Benchmark Treasury Rate;
(g) the following terms have the meanings given to them in the
Purchase Contract Agreement: (i) Cash Settlement; (ii) PEPS Units;
(iii) Purchase Contract and (iv) Purchase Contract Settlement Date; (v)
Treasury PEPS Unit; (vi) Global Certificate
(h) the following terms have the meanings given to them in this
Section 1.1(h):
"Business Day" means any day other than a Saturday or Sunday
or a day on which banking institutions in New York City are
authorized or required by law or executive order to remain closed
or a day on which the principal office of the Trustee or the
Property Trustee is closed for business.
"Declaration" means the Amended and Restated Declaration of
Trust of the Trust, dated as of September 29, 1999, as amended and
restated from time to time.
"Direct Action" has the meaning specified in Section 7.2.
"Primary Treasury Dealer" means a primary U.S. government
securities dealer in New York City.
"Purchase Contract Agreement" means the Purchase Contract
Agreement dated as of September 29, 1999 between the Company and
Bank One Trust Company, NA, as Purchase Contract Agent.
"Quotation Agent" means (i) Morgan Stanley & Co. Incorporated
and its respective successors, provided that if Morgan Stanley &
Co. Incorporated ceases to be a Primary Treasury Dealer, the
Company will substitute another Primary Treasury Dealer therefor,
or (ii) any other Primary Treasury Dealer selected by the Company.
"Remarketing" means (i) as long as the Trust has not been
liquidated, the operation of the procedures for remarketing
specified in Section 7.13 of the Declaration and (ii) if the Trust
has been liquidated, the operation of the procedures for
remarketing specified in Section 5.4 of the Purchase contract
Agreement.
"Remarketing Agent" shall mean Morgan Stanley & Co.
Incorporated or any successor remarketing agent selected by the
Company.
ARTICLE II
TERMS AND ISSUANCE OF THE SENIOR NOTES
Section 2.1. ISSUE OF SENIOR NOTES. A series of Securities which
shall be designated the "7.35% Senior Deferrable Notes due 2004" shall be
executed, authenticated and delivered in accordance with the provisions of, and
shall in all respects be subject to, the terms,
conditions and covenants of the Indenture and this Twelfth Supplemental
Indenture (including the form of Senior Note set forth as Exhibits A and B
hereto). The aggregate principal amount of Senior Notes of the series
created hereby which may be authenticated and delivered under the Indenture
shall not, except as permitted by the provisions of the Indenture, exceed
$257,731,975. The Senior Note shall be initially issued in certificated form
to the Trust (the "Initial Senior Note") and shall be substantially in the
Form of Exhibit B attached hereto. The terms of such Senior Note are herein
incorporated by reference and are part of the Twelfth Supplemental Indenture.
Section 2.2 MATURITY. The Maturity Date will be November 16,
2004. Unless a Tax Event Redemption occurs, the entire principal amount of
the Senior Note will mature and become due and payable together with any
accrued and unpaid interest thereon, on November 16, 2004 (the "Maturity
Date").
Section 2.3 GLOBAL SENIOR NOTES. If distributed to holders of
Preferred Securities in connection with the involuntary or voluntary
liquidation and dissolution of the Trust:
(a) If the Preferred Securities are held in book-entry form, the
Initial Senior Note may be presented to the Trustee by the Property
Trustee in exchange for a Global Security in the form of Exhibit A in an
aggregate principal amount equal to all Outstanding Senior Notes (a
"Global Senior Note"). The Depositary for the Global Senior Note will be
The Depository Trust Company. The Global Senior Note will be registered
in the name of the Depositary or its nominee, Cede & Co., and delivered
by the Trustee to the Depositary or a custodian appointed by the
Depositary for crediting to the accounts of its participants pursuant to
the instructions of the Properly see Section 3.8(c)(iii) Trustee. The
Company upon any such presentation shall execute a Global Senior Note in
such aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this
Twelfth Supplemental Indenture. Payments on the Senior Notes issued as a
Global Senior Note will be made to the Depositary or its nominee.
(b) If any Preferred Securities are held in non book-entry
certificated form ("Non Book-Entry Preferred Securities"), the Initial
Senior Note may be presented to the Trustee by the Property Trustee, and
such Non Book-Entry Preferred Securities will be deemed to represent
beneficial interests in Senior Notes presented to the Trustee by the
Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred Securities
until the Preferred Security Certificates representing such Non
Book-Entry Preferred Securities are presented to the Security Registrar
for transfer or reissuance, at which time such Preferred Security
Certificates will be canceled and a Senior Note registered in the name
of the holder of the Preferred Security Certificate or the transferee of
the holder of such Preferred Security Certificate, as the case may be,
with an aggregate principal amount equal to the aggregate liquidation
amount of the Preferred Security Certificate canceled will be executed
by the Company and delivered to the Trustee for authentication and
delivery in accordance with the Indenture and this Twelfth Supplemental
Indenture. On issue of such Senior Notes, Senior Notes with an
equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been canceled.
Section 2.4 INTEREST. (a) Each Senior Note will bear interest at
the rate of 7.35% per annum from September 29, 1999 until the Purchase
Contract Settlement Date, and at the Reset Rate thereafter, payable quarterly
in arrears on February 16, May 16, August 16 and November 16 of each year,
commencing November 16, 1999 (the "Interest Payment Dates").
(b) The Regular Record Dates for the payment of interest on the
Senior Notes on any Interest Payment Date, shall be (i) as long as the Senior
Notes are represented by a Global Senior Note or the Initial Senior Note, the
Business Day preceding each Interest Payment Date or (ii) if the Senior Notes
are issued pursuant to Section 2.3(b) above, the fifteenth Business Day prior
to each Interest Payment Date.
(c) The interest rate on the Senior Notes outstanding on and after
the Remarketing Date will be reset to the Reset Rate. The Reset Rate will be
equal to the rate per annum that results from the Remarketing, provided that
if a Failed Remarketing occurs, the Reset Rate will be equal to (i) the
Two-Year Benchmark Treasury Rate plus (ii) the Applicable Margin.
(d) The amount of interest payable on the Senior Notes for any
period will be computed (i) for any full quarterly period on the basis of a
360-day year of twelve 30-day months and (ii) for any period shorter than a
full quarterly period, on the basis of a 30-day month and, for any period
less than a month, on the basis of the actual number of days elapsed per
30-day month. In the event that any date on which interest is payable on the
Senior Notes is not a Business Day, then payment of the interest payable on
such date will be made on the next day that is a Business Day (and without
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next calendar year, then such payment will be made on
the preceding Business Day.
Section 2.5 REDEMPTION. (a) If a Tax Event occurs and is
continuing, the Company may, at its option and upon not less than 30 nor more
than 60 days' notice to the Holders of the Senior Notes, redeem the Senior
Notes in whole (but not in part) within 90 days following the occurrence of
such Tax Event, at a price equal to, for each Senior Note, the Redemption
Price. The aggregate Redemption Price shall be paid prior to 12:00 noon, New
York City time, on the date of redemption (the "Tax Event Redemption Date")
or such earlier time as the Company determines, provided that the Company
shall have deposited with the Trustee an amount sufficient to pay the
aggregate Redemption Price by 10:00 a.m. on the Tax Event Redemption Date.
Such redemption shall otherwise be in accordance with the provisions of
Article Eleven of the Indenture.
(b) Except as provided in Section 2.5(a), the Company will have no
right to redeem the Senior Notes.
(c) The Senior Notes will not be subject to a sinking fund
provision.
Section 2.6 EVENTS OF DEFAULT. So long as the Senior Notes are held
by the Trust, it shall be an Event of Default with respect to the Senior Notes
if the Trust shall have voluntarily
or involuntarily dissolved, wound up its business or otherwise terminated its
existence except in connection with (i) the distribution of the Senior Notes
held by the Trust to the holders of the Preferred Securities and Common
Securities in liquidation of their interests in the Trust, (ii) the
redemption of all of the outstanding Preferred Securities and Common
Securities or (iii) a consolidation, conversion, amalgamation, merger or
other transaction involving the Trust that is permitted under Section 3.15 of
the Declaration.
Section 2.7 PAYING AGENT; SECURITY REGISTRAR. If the Senior Notes
are issued in certificated form, the Paying Agent and the Security Registrar
for the Senior Notes shall be the Property Trustee.
Section 2.8 EXTENSION OF INTEREST PAYMENT PERIOD. The Company
shall have the right at any time, and from time to time, during the term of
the Senior Notes, to defer payments of interest by extending the interest
payment period of such Senior Notes for a period not extending, in the
aggregate, beyond the Maturity Date of the Senior Notes (the "Extension
Period"), during which Extension Period no interest shall be due and payable.
To the extent permitted by applicable law, interest, the payment of which
has been deferred because of the extension of the interest payment period
pursuant to this Section 2.8, will bear interest thereon at the rate of 9.75%
until November 16, 2002, and at the Reset Rate thereafter compounded
quarterly for each quarter of the Extension Period ("Compounded Interest").
At the end of the Extension Period, the Company shall pay all interest
accrued and unpaid on the Senior Notes and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders of the Senior Notes
in whose names the Senior Notes are registered in the Security Register on
the first Regular Record Date after the end of the Extension Period. During
any such Extension Period or an Event of Default, however, the Company shall
not (a) make any payment of principal, interest or premium, if any, on or
repay, repurchase or redeem any debt securities that rank junior to the
Senior Notes in the right of payment issued by the Company, or (b) make any
guarantee payments with respect to any guarantee by the Company of any
securities of any of its subsidiaries if such guarantee ranks junior to the
Senior Notes in right of payment or (c) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company's capital stock, except for or as a
result of (i) dividends or distributions in, or options, warrants or rights
to subscribe for or purchase, the Company's common stock; (ii) any
declaration of a dividend in connection with the implementation of a
shareholder's rights plan, or the issuance of shares under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
thereto; (iii) a reclassification of the Company's capital stock solely into
shares of one or more classes or series of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock
for or into another class or series of the Company's capital stock; (iv) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged; and (v) the purchase of the
Company's common stock in connection with the Company's normal course issuer
bid-purchases for the satisfaction by the Company of its obligations under
any benefit plans for the Company and the Company's subsidiaries' directors,
officers or employees or under any of the Company's dividend reinvestment
plans. Prior to the expiration of any Extension Period, the Company may
further extend such period, provided that such period together with all such
previous and further extensions thereof shall not extend
beyond the Maturity Date of the Senior Notes. Upon termination of any
Extension Period and the payment of all Deferred Interest then due, the
Company may commence a new Extension Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extension
Period except at the end thereof, but the Company, at its option, may prepay
on any Interest Payment Date all or any portion of the interest accrued
during the then elapsed portion of an Extension Period.
Section 2.9. NOTICE OF EXTENSION. The Company shall give written
notice to the Trustee of its election of any Extension Period (or any further
extension thereof) at least five Business Days before the earlier of (i) the
date the interest on the Senior Notes would have been payable except for the
election to begin or extend the Extension Period; (ii) the date the Trustee
is required to give notice to any securities exchange or to Holders of Senior
Notes of the Record Date or the Interest Payment Date, and (iii) the Record
Date.
Section 2.10. PLACE OF PAYMENT. The Place of Payment will be
initially the corporate trust offices of the Trustee which, at the date
hereof, are located at One Bank One Plaza, Suite 1L1-0126, Chicago, Illinois
60670. Attention: Corporate Trust Administration Department.
Section 2.11. LIMITATION ON ISSUANCE OF MORTGAGE BONDS. The
Company will not issue any Mortgage Bonds under its General Mortgage
Indenture and Deed of Trust, dated September 15, 1988, between the Company
and Commerce Bank of Kansas City, N.A., as Trustee (the "General Mortgage"),
without making effective provision, and the Company covenants that in any
such case effective provisions will be made, whereby the Senior Notes shall
be directly secured by the General Mortgage equally and ratably with any and
all other obligations and indebtedness thereby secured.
ARTICLE III
EXPENSES
Section 3.1 PAYMENT OF EXPENSES. In connection with the offering,
sale and issuance of the Senior Notes to the Trust in connection with the
sale of the Preferred Securities and Common Securities by the Trust, the
Company will:
(a) pay for all costs and expenses relating to the offering, sale
and issuance of the Senior Notes, including compensation of the Trustee
under the Indenture in accordance with the provisions of Section 607 of
the Indenture; and
(b) pay for all costs and expenses of the Trust, including, but
not limited to, costs and expenses relating to the organization of the
Trust, the offering, sale and issuance of the Trust Securities; the fees
and expenses of the Property Trustee (including, without limitation,
those incurred in connection with the enforcement by the Property
Trustee of the rights of the holders of the Preferred Securities), the
Delaware Trustee and the Regular Trustees; the costs and expenses
relating to the operation of the Trust (including, without limitation,
costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing
or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses); and costs and expenses incurred in connection with the
acquisition, financing and disposition of Trust assets;
(c) be primarily liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
ARTICLE IV
COVENANTS
Section 4.1 COVENANTS IN THE EVENT OF AN EVENT OF DEFAULT. As long
as the Senior Notes are held by the Trust, if an Event of Default occurs and
written notice of such event has been given to the Company, then the Company may
not:
(a) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of
its capital stock; or
(b) make any payment of principal, interest or premium, if any, on
or repay, repurchase or redeem any debt securities that rank on a parity
with or junior in interest to the Senior Notes or make any guarantee
payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company if such guarantee ranks on a
parity with or junior in interest to the Senior Notes; other than (i)
purchases or acquisitions of capital stock of the Company in connection
with the satisfaction by the Company of its obligations under any
employee benefit plans or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on the date
of such Event of Default requiring the Company to purchase capital stock
of the Company, (ii) as a result of a reclassification of the Company's
capital stock for another class or series of the Company's capital
stock, (iii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (iv) dividends or distributions in capital stock of the
Company, (v) redemptions or repurchases of any rights pursuant to a
rights agreement and (vi) payments under the Guarantee.
Section 4.2 ADDITIONAL COVENANTS RELATING TO THE TRUST. For as long
as the Preferred Securities remain outstanding, the Company will:
(a) maintain, directly or indirectly, 100% ownership of the Common
Securities;
(b) cause the Trust to remain a statutory business trust and not
to voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by the Declaration;
(c) use its commercially reasonable efforts to ensure that the
Trust will not be an "investment company" required to be registered
under the Investment Company Act of 1940;
(d) not take any action that would be reasonably likely to cause
the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income
tax purposes; and
(e) pay all of the debts and obligations of the Trust (other than
with respect to the securities issued by the Trust) and all costs and
expenses of the Trust (including, but not limited to, all costs and
expenses relating to the organization of the Trust, the fees and
expenses of the trustees and all costs and expenses relating to the
operation of the Trust) and any and all taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes)
imposed on the Trust by the United States, or any other taxing
authority, so that the net amounts received and retained by the Trust
after paying such expenses will be equal to the amounts the Trust would
have received had no such costs or expenses been incurred by or imposed
on the Trust.
ARTICLE V
ORIGINAL ISSUE OF SENIOR NOTES
Section 5.1 ORIGINAL ISSUE OF SENIOR NOTES. Senior Notes in an
aggregate principal amount of up to $257,731,975 may, upon execution of this
Twelfth Supplemental Indenture, be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said Senior Notes upon receipt of a Company Order, without any
further action by the Company.
ARTICLE VI
RIGHTS OF HOLDERS OF PREFERRED SECURITIES
Section 6.1 PREFERRED SECURITY HOLDERS' RIGHTS. Notwithstanding
Section 507 of the Indenture, if the Property Trustee fails to enforce its
rights under the Senior Notes after a holder of Preferred Securities has made
a written request, the holder of Preferred Securities may, to the fullest
extent permitted by law, institute a legal proceeding directly against the
Company to enforce the Property Trustee's rights under the Indenture without
first instituting any legal proceeding against the Property Trustee or any
other Person.
Section 6.2 DIRECT ACTION. Notwithstanding any other provision of
the Indenture, for as long as any Preferred Securities remain outstanding, to
the fullest extent permitted by law,
if an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal on
the Senior Notes on the date such interest or principal is otherwise payable
(or in the case of redemption, the redemption date), then a holder of
Preferred Securities may institute a proceeding directly against the Company
(a "Direct Action") to enforce payment to such holder of the principal or
interest on Senior Notes having an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such holder.
Section 6.3 PAYMENTS PURSUANT TO DIRECT ACTIONS. The Company will have
the right to set off against its obligations to the Trust, as Holder of the
Senior Notes, any payment made to a holder of Preferred Securities in
connection with a Direct Action.
ARTICLE VII
REMARKETING
Section 7.1 EFFECTIVENESS OF THIS ARTICLE. Upon a distribution of
the Senior Notes upon the liquidation and dissolution of the Trust which
occurs prior to the Remarketing of the Preferred Securities pursuant to the
Declaration, the Senior Notes shall be Remarketed in accordance with the
Remarketing Procedures where all references in the Remarketing Procedures to
Preferred Securities shall be read as references to the Senior Notes, unless
the context requires otherwise. Until such a distribution, or if such
distribution occurs after the Remarketing of the Preferred Securities
pursuant to the Declaration, this Article VIII will have no effect.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. EXECUTION OF SUPPLEMENTAL INDENTURE. This Twelfth
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Indenture and, as provided in the Indenture, this Twelfth
Supplemental Indenture forms a part thereof.
Section 8.2. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Twelfth Supplemental Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
Section 8.3. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 8.4. SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Twelfth Supplemental Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 8.5. SEPARABILITY CLAUSE. In case any provision in this
Twelfth
Supplemental Indenture or in the Senior Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 8.6. BENEFITS OF TWELFTH SUPPLEMENTAL INDENTURE. Nothing
in this Twelfth Supplemental Indenture or in the Senior Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the holders, any benefit or any legal or equitable
right, remedy or claim under this Twelfth Supplemental Indenture.
Section 8.7. GOVERNING LAW. This Twelfth Supplemental Indenture
and each Senior Note shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by and
construed in accordance with the laws of said State.
Section 8.8. EXECUTION AND COUNTERPARTS. This Twelfth
Supplemental Indenture may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Twelfth
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
UTILICORP UNITED INC.
[Seal] By: /s/ Dale J. Wolf
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Name: Dale J. Wolf
Title: Vice President,
Finance
Attest:
/s/ Douglas P. Evanson
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Name: Douglas P. Evanson
Title: Asst. Treasurer
BANK ONE TRUST COMPANY, NA
as Trustee
[Seal] By: /s/ Lelind Hansen
-------------------------------
Name: Lelind Hansen
Title: Assistant Vice President
Attest:
/s/ M.J. Frye
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Title: Trust Officer
STATE OF MISSOURI )
) ss.:
COUNTY OF JACKSON )
On the 29th day of September 1999, before me personally came Dale
J. Wolf, to me known, who, being by me duly sworn, did depose and say that he
is Vice President, Finance of UtiliCorp United Inc., the corporation
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
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Notary Public,
State of --------
STATE OF --------- )
) ss.:
COUNTY OF --------- )
On the ____ day of ________, 199_, before me personally came
________________, to me known, who, being by me duly sworn, did depose and
say that he is ________________ of Bank One Trust Company, NA, the national
banking association described in and which executed the foregoing instrument;
that he knows the seal of said association; that the seal affixed to said
instrument is such association seal; that it was so affixed by authority of
the Board of Directors of said association, and that he signed his name
thereto by like authority.
----------------------
Notary Public,
State of -------------
EXHIBIT A
[FORM OF FACE OF SENIOR DEFERRABLE NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR
OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
REGISTERED REGISTERED
UTILICORP UNITED INC.
7.35% SENIOR DEFERRABLE NOTE DUE 2004
$257,731,975
UTILICORP UNITED INC., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay UCU Capital Trust I, or registered
assigns, the principal sum of Two Hundred and Fifty Seven Million, Seven
Hundred and Thirty One Thousand, Nine Hundred and Seventy Five Dollars on
November 16, 2004, and to pay interest on said principal sum from September
29, 1999, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, quarterly in arrears on February 16, May 16,
August 16 and November 16 of each year (an "Interest Payment Date")
commencing November 16, 1999, at the rate of 7.35% per annum until November
16, 2002, and at the Reset Rate thereafter, until the principal hereof shall
have become due and payable, and on any overdue principal and premium, if
any, and (without duplication and to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of interest
at the same rate per annum compounded quarterly. Any deferred interest shall
accrue interest at the rate set forth in the Twelfth Supplemental Indenture.
The amount of interest payable for any period will be computed (1) for any
full quarterly period on the basis of a
360-day year of twelve 30-day months and (2) for any period shorter than a
full quarterly period, on the basis of a 30-day month and, for any period
less than a month, on the basis of the actual number of days elapsed per
30-day month. In the event that any date on which interest is payable is not
a Business Day, then payment of the interest payable on such date will be
made on the next day that is a Business Day (and without any interest or
other payment in respect of such delay), except that, if such Business Day is
in the next calendar year, then such payment will be made on the preceding
Business Day. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, referred to on the reverse side hereof, be paid to the Holder in
whose name this Security (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the Regular
Record Date for such interest installment, which, shall be the close of
business on the Business Day preceding such Interest Payment Date. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date, and may be
paid to the Holder in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
to be fixed by the Trustee referred to on the reverse side hereof for the
payment of such defaulted interest, notice whereof shall be given to the
Holders of the Security not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Security may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
Payment of the principal of and premium, if any, and interest on
this Security will be made at the office or agency of the Trustee maintained
for that purpose in such coin or currency of the United States of America
that at the time of payment is legal tender for payment of public and private
debts. The Company may pay principal by cheque payable in such money or by
wire transfer to a dollar account maintained by the Holder (if the Holder of
the Security holds an aggregate principal amount of Securities in excess of
$5,000,000). The Company may pay interest by mailing a dollar check to the
Holder's registered address or, upon application by the Holder hereof to the
Registrar, not later than the applicable Record Date, by wire transfer to a
dollar account maintained by the holder (if the holder of the Security holds
an aggregate principal amount of Securities in excess of $5,000,000).
Interest on the Securities is deferrable in accordance with the
terms of the Twelfth Supplemental Indenture.
This Security is, to the extent provided in the Indenture,
unsecured and will rank in right of payment on a parity with all other
unsecured and unsubordinated obligations of the Company.
Unless the Certificate of Authentication hereon has been executed
by the Trustee or an Authenticating Agent, by manual signature of one of its
Authorized Officers, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose. The provisions of
this Security are continued on the reverse side hereof, and such continued
provisions shall for all purposes have the same effect as though fully set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UTILICORP UNITED INC.
Dated: September 29, 1999 By: /s/ Dale J. Wolf
--------------------------------------
Dale J. Wolf
Vice President, Finance, Treasurer
and Secretary
Attest:
By: /s/ Douglas P. Evanson
----------------------
Douglas P. Evanson
Assistant Treasurer
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
Dated: September 29, 1999 BANK ONE TRUST COMPANY, NA, as
Trustee
By: /s/ Lelind Hansen
------------------
Authorized Officer
(FORM OF REVERSE OF SENIOR DEFERRABLE NOTE)
UTILICORP UNITED INC.
7.35% SENIOR DEFERRABLE NOTE DUE 2004
This Senior Deferrable Note is one of a duly authorized series of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of November 1,
1990, as amended and supplemented (as amended and supplemented, the
"Indenture"), between the Company and Bank One Trust Company, NA (formerly
know as The First National Bank of Chicago), as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated
on the face hereof, limited in aggregate principal amount to $257,731,975.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security is not subject to any sinking fund, nor may this
Security be redeemed at the option of the Company prior to the Maturity Date.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
If a Tax Event occurs and is continuing, the Company may, at its
option and upon not less than 30 nor more than 60 days' notice to the Holders
of the Securities, redeem the Securities in whole (but not in part) within 90
days following the occurrence of such Tax Event at the Redemption Price. The
Redemption Price shall be paid prior to 12:00 noon, New York City time, on
the Tax Event Redemption Date, by check or wire transfer in immediately
available funds at such place and to such account as may be designated by
each such Holder.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the
rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of
the Holders of not less than 66 2/3% in principal amount of the Securities at
the time Outstanding of all series to be affected (voting as a class). The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities registered in
the names of Persons other than the Depositary with respect to such series or
its nominee only as provided in this paragraph. This Security shall be so
exchangeable if (x) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such series or at any time ceases to
be a clearing agency registered as such under the Securities Exchange Act of
1934, (y) the Company executes and delivers to the Trustee an Officers'
Certificate providing that this Security shall be so exchangeable or (z)
there shall have occurred and be continuing an Event of Default with respect
to the Securities of such series. Securities so issued in exchange for this
Security shall be of the same series, having the same interest rate, if any,
and maturity and having the same terms as this Security, in authorized
denominations and in the aggregate having the same principal amount as this
Security and registered in such names as the Depositary for such Global
Security shall direct.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of a Security of the series of which this
Security is a part is registrable in the Security Register, upon surrender of
this Security for registration of transfer at the office or agency of the
Company in any place where the principal of and premium, if any, and
interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of the series of which this Security is a part are
issuable only in registered form without coupons in denominations of $25 and
in integral multiples thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
EXHIBIT B
[FORM OF FACE OF SENIOR DEFERRABLE NOTE]
REGISTERED REGISTERED
UTILICORP UNITED INC.
7.35% SENIOR DEFERRABLE NOTE DUE 2004
$257,731,975
UTILICORP UNITED INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay UCU Capital Trust I, or registered assigns, the principal
sum of Two Hundred and Fifty Seven Million, Seven Hundred and Thirty One
Thousand, Nine Hundred and Seventy Five Dollars on November 16, 2004, and to pay
interest on said principal sum from September 29, 1999, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
quarterly in arrears on February 16, May 16, August 16 and November 16 of each
year (an "Interest Payment Date") commencing November 16, 1999, at the rate of
7.35% per annum until November 16, 2002, and at the Reset Rate thereafter, until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded quarterly. Any
deferred interest shall accrue interest at the rate set forth in the Twelfth
Supplemental Indenture. The amount of interest payable for any period will be
computed (1) for any full quarterly period on the basis of a 360-day year of
twelve 30-day months and (2) for any period shorter than a full quarterly
period, on the basis of a 30-day month and, for any period less than a month, on
the basis of the actual number of days elapsed per 30-day month. In the event
that any date on which interest is payable is not a Business Day, then payment
of the interest payable on such date will be made on the next day that is a
Business Day (and without any interest or other payment in respect of such
delay), except that, if such Business Day is in the next calendar year, then
such payment will be made on the preceding Business Day. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, referred to on the
reverse side hereof, be paid to the Holder in whose name this Security (or one
or more Predecessor Securities, as defined in said Indenture) is registered at
the close of business on the
Regular Record Date for such interest installment, which, shall be the close
of business on the Business Day preceding such Interest Payment Date. Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date, and
may be paid to the Holder in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date to be fixed by the Trustee referred to on the reverse side hereof
for the payment of such defaulted interest, notice whereof shall be given to
the Holders of the Security not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
Payment of the principal of and premium, if any, and interest on
this Security will be made at the office or agency of the Trustee maintained
for that purpose in such coin or currency of the United States of America
that at the time of payment is legal tender for payment of public and private
debts. The Company may pay principal by cheque payable in such money or by
wire transfer to a dollar account maintained by the Holder (if the Holder of
the Security holds an aggregate principal amount of Securities in excess of
$5,000,000). The Company may pay interest by mailing a dollar check to the
Holder's registered address or, upon application by the Holder hereof to the
Registrar, not later than the applicable Record Date, by wire transfer to a
dollar account maintained by the holder (if the holder of the Security holds
an aggregate principal amount of Securities in excess of $5,000,000).
Interest on the Securities is deferrable in accordance with the
terms of the Twelfth Supplemental Indenture.
This Security is, to the extent provided in the Indenture,
unsecured and will rank in right of payment on a parity with all other
unsecured and unsubordinated obligations of the Company.
Unless the Certificate of Authentication hereon has been executed
by the Trustee or an Authenticating Agent, by manual signature of one of its
Authorized Officers, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose. The provisions of
this Security are continued on the reverse side hereof, and such continued
provisions shall for all purposes have the same effect as though fully set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UTILICORP UNITED INC.
Dated: September 29, 1999 By: /s/ Dale J. Wolf
----------------------------------
Dale J. Wolf
Vice President, Finance, Treasurer
and Secretary
Attest:
By: /s/ Douglas P. Evanson
----------------------
Douglas P. Evanson
Assistant Treasurer
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
Dated: September 29, 1999 BANK ONE TRUST COMPANY, NA, as
Trustee
By: /s/ Lelind Hansen
------------------
Authorized Officer
(FORM OF REVERSE OF SENIOR DEFERRABLE NOTE)
UTILICORP UNITED INC.
7.35% SENIOR DEFERRABLE NOTE DUE 2004
This Senior Deferrable Note is one of a duly authorized series of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of November 1,
1990, as amended and supplemented (as amended and supplemented, the
"Indenture"), between the Company and Bank One Trust Company, NA (formerly
know as The First National Bank of Chicago), as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated
on the face hereof, limited in aggregate principal amount to $257,731,975.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security is not subject to any sinking fund, nor may this
Security be redeemed at the option of the Company prior to the Maturity Date.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
If a Tax Event occurs and is continuing, the Company may, at its
option and upon not less than 30 nor more than 60 days' notice to the Holders
of the Securities, redeem the Securities in whole (but not in part) within 90
days following the occurrence of such Tax Event at the Redemption Price. The
Redemption Price shall be paid prior to 12:00 noon, New York City time, on
the Tax Event Redemption Date, by check or wire transfer in immediately
available funds at such place and to such account as may be designated by
each such Holder.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the
rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of
the Holders of not less than 66 2/3% in principal amount of the Securities at
the time Outstanding of all series to be affected (voting as a class). The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of a Security of the series of which this
Security is a part is registrable in the Security Register, upon surrender of
this Security for registration of transfer at the office or agency of the
Company in any place where the principal of and premium, if any, and
interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of the series of which this Security is a part are
issuable only in registered form without coupons in denominations of $25 and
in integral multiples thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.