As filed with the Securities and Exchange Commission on September 13, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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THE EMPIRE DISTRICT ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
Kansas 44-0236370
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
602 Joplin Street
Joplin, Missouri 64801
(417) 625-5100
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Myron W. McKinney
President and Chief Executive Officer
The Empire District Electric Company
602 Joplin Street
Joplin, Missouri 64801
(417) 625-5100
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Gary W. Wolf, Esq. Thomas A. Litz, Esq.
Cahill Gordon & Reindel Thompson Coburn LLP
80 Pine Street One Mercantile Center
New York, New York 10005 St. Louis, Missouri 63101
(212) 701-3000 (314) 552-6000
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
<PAGE>
If the Form is a post-effective amendment filed pursuant Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Proposed Proposed
maximum maximum
Title of each class of Amount to be offering price aggregate offering Amount of
securities to be registered registered per unit price registration fee
<S> <C> <C> <C> <C>
Common Stock (1)(3) (2) (1)(2)(3)
Unsecured Debt Securities (1)(4) (2) (1)(2)(4)
First Mortgage Bonds (1)(5) (2) (1)(2)(5)
Total $150,000,000 (2) $150,000,000 $41,700(6)
================================================================================================================
</TABLE>
(1) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $150,000,000. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) The proposed maximum offering price per unit will be determined, from time
to time, by the Registrant in connection with the issuance by the
Registrant of the securities registered hereunder.
(3) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of shares of Common Stock, par value $1.00 per share,
together with attached Preference Stock Purchase Rights.
(4) Subject to Footnote (1), there is being registered hereunder an
indeterminate principal amount of Unsecured Debt Securities.
(5) Subject to Footnote (1), there is being registered hereunder an
indeterminate principal amount of First Mortgage Bonds.
(6) Calculated pursuant to Rule 457(o).
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registraiton statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 13, 1999
PROSPECTUS
$150,000,000
THE EMPIRE DISTRICT ELECTRIC COMPANY
COMMON STOCK
UNSECURED DEBT SECURITIES
FIRST MORTGAGE BONDS
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We may offer from time to time:
o shares of our common stock;
o our unsecured debt securities, in one or more series; and
o our first mortgage bonds, in one or more series.
The aggregate initial offering price of the securities that we offer will
not exceed $150,000,000. We will offer the securities in amounts, at prices and
on terms to be determined by market conditions at the time of our offering.
We will provide the specific terms of the securities in supplements to this
prospectus. You should read this prospectus and the prospectus supplements
carefully before you invest in the securities. This prospectus may not be used
to consummate sales of securities unless accompanied by a prospectus supplement.
Our common stock is listed on the New York Stock Exchange under the trading
symbol "EDE".
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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The date of this prospectus is , 1999
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference rooms in Washington, D.C.,
New York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms.
Reports, proxy statements and other information concerning Empire can also
be inspected and copied at the offices of the New York Stock Exchange at 20
Broad Street, New York, New York 10005.
Information concerning UtiliCorp United Inc. is available from the same
sources as given above with respect to Empire. We have announced plans for a
merger of Empire with and into UtiliCorp. Please see "Information About Empire"
for more details.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities.
o Our Annual Report on Form 10-K for the year ended December 31, 1998.
o Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
1999 and June 30, 1999.
o Our Proxy Statement for our special meeting of stockholders held on
September 3, 1999 which is dated August 2, 1999.
o The description of our preference stock purchase rights as set forth
in our Registration Statement on Form 8-A/A dated June 17, 1999.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Corporate Secretary
The Empire District Electric Company
602 Joplin Street
Joplin, Missouri 64801
Tel: (417) 625-5100
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
FORWARD LOOKING STATEMENTS
Certain matters discussed in this prospectus and in the documents
incorporated by reference in this prospectus are "forward-looking statements"
intended to qualify for the safe harbor from liability established by the
Private Securities Litigation Reform Act of 1995. Such statements address future
plans, objectives, expectations
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and events or conditions concerning various matters such as capital expenditures
(including those planned in connection with the State Line expansion project),
earnings, competition, litigation, rate and other regulatory matters, liquidity
and capital resources, Year 2000 readiness (including estimated costs,
completion dates, risks and contingency plans) and accounting matters. Actual
results in each case could differ materially from those currently anticipated in
such statements, by reason of factors such as:
o the cost and availability of purchased power and fuel;
o a significant delay in the expected completion of, and unexpected
consequences resulting from, the merger with UtiliCorp;
o electric utility restructuring, including ongoing state and federal
activities;
o weather, business and economic conditions;
o legislation;
o regulation, including rate relief and environmental regulation (such
as NOx regulation);
o competition, including the impact of deregulation on off-system sales;
and
o other circumstances affecting anticipated rates, revenues and costs.
INFORMATION ABOUT EMPIRE
Based in Joplin, Missouri, we are an operating public utility engaged in
the generation, purchase, transmission, distribution and sale of electricity. We
currently serve approximately 145,000 electric customers in parts of Missouri,
Kansas, Oklahoma and Arkansas. We also provide monitored security, fiber optic
service and decorative lighting. The territory served by our electric operations
comprises an area of about 10,000 square miles and has a population of more than
330,000. Our executive offices are located at 602 Joplin Street, Joplin,
Missouri 64801, telephone number (417) 625-5100.
On May 11, 1999 we announced that we had entered into an Agreement and Plan
of Merger dated as of May 10, 1999 which provides for the merger of Empire with
and into UtiliCorp United Inc., with UtiliCorp as the surviving company. The
closing of the merger is conditioned, among other things, upon obtaining state
and federal regulatory approvals. We expect that all of these conditions will be
met and the merger will become effective by the end of 2000. Upon the effective
time of merger, all shares of our common stock will be converted into UtiliCorp
common stock or cash (in accordance with the terms of the merger agreement) and
UtiliCorp will assume all of our outstanding unsecured debt securities and our
outstanding first mortgage bonds. For further information relating to the merger
and the merger agreement, please see our proxy statement for our special meeting
of stockholders held on September 3, 1999, which is incorporated by reference
into this prospectus.
INFORMATION ABOUT UTILICORP
UtiliCorp is a multinational energy and energy services company
headquartered in Kansas City, Missouri. It has regulated utility operations in
eight states and energy operations in New Zealand, Australia, the United Kingdom
and Canada. It also owns non-utility subsidiaries involved in energy trading;
natural gas gathering, processing and transportation; energy efficiency services
and various other energy-related businesses. UtiliCorp's executive offices are
located at 20 West Ninth Street, P.O. Box 13287, Kansas City, Missouri
64199-3287, telephone number (816) 421-6600.
While we have included or incorporated in this prospectus by reference
information about UtiliCorp insofar as it is known or reasonably available to
us, UtiliCorp is not affiliated with us. Although we have no knowledge that
would indicate that statements relating to UtiliCorp contained or incorporated
by reference in this prospectus in reliance upon publicly available information
are inaccurate or incomplete, we were not involved in
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the preparation of such information and statements and, for the foregoing
reasons, are not in a position to verify any such information or statements.
USE OF PROCEEDS
The proceeds from the sale of the securities will be used as described in
the prospectus supplement by which the securities are offered.
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EARNINGS RATIOS
The ratio of earnings to fixed charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
Twelve Months
Ended Year Ended December 31,
June 30, 1999 1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges: 3.02x 3.32x 3.01x 3.11x 2.90x 3.16x
</TABLE>
For purposes of calculating these ratios, earnings consist of income before
income taxes plus fixed charges. Fixed charges consist of interest expense plus
the estimated interest portion of rent expense.
The ratios for future periods will be included in our reports on Forms 10-K
and 10-Q. These reports are incorporated by reference into this prospectus at
the time they are filed.
DESCRIPTION OF UNSECURED DEBT SECURITIES
The unsecured debt securities will be our direct unsecured general
obligations. The unsecured debt securities will be either senior unsecured debt
securities, subordinated unsecured debt securities or junior subordinated
unsecured debt securities. The unsecured debt securities will be issued in one
or more series under the indenture between us and Norwest Bank Minnesota,
National Association, as trustee, and under a securities resolution (which may
be in the form of a board resolution or a supplemental indenture) authorizing
the particular series.
We have summarized selected provisions of the indenture below. The summary
is not complete. The indenture and a form of securities resolution are filed as
exhibits to the registration statement of which this prospectus is a part. The
securities resolution for each series will be filed or incorporated by reference
as an exhibit to the registration statement. You should read the indenture and
the applicable securities resolution for provisions that may be important to
you. In the summary below, we have included references to section numbers in the
indenture so that you can easily find those provisions. The particular terms of
any unsecured debt securities we offer will be described in the related
prospectus supplement, along with any applicable modifications of or additions
to the general terms of the unsecured debt securities described below and in the
indenture. For a description of the terms of any series of unsecured debt
securities, you should also review both the prospectus supplement relating to
that series and the description of the unsecured debt securities set forth in
this prospectus before making an investment decision.
General
The indenture does not significantly limit our operations. In particular,
it does not:
o limit the amount of unsecured debt securities that we can issue under
the indenture;
o limit the number of series of unsecured debt securities that we can
issue from time to time;
o restrict the total amount of debt that we may incur; or
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o contain any covenant or other provision that is specifically intended
to afford any holder of the unsecured debt securities special
protection in the event of highly leveraged transactions or any other
transactions resulting in a decline in our ratings or credit quality.
As of the date of this prospectus, there are no unsecured debt securities
outstanding under the indenture. The ranking of a series of unsecured debt
securities with respect to all of our other indebtedness will be established by
the securities resolution creating the series.
If the merger with UtiliCorp is completed, all outstanding unsecured debt
securities will become UtiliCorp's obligations.
Although the indenture permits the issuance of unsecured debt securities in
other forms or currencies, the unsecured debt securities covered by this
prospectus will only be denominated in U.S. dollars in registered form without
coupons, unless otherwise indicated in the applicable prospectus supplement.
Terms
A prospectus supplement and a securities resolution relating to the
offering of any series of unsecured debt securities will include specific terms
relating to the offering. The terms will include some or all of the following:
o the designation, aggregate principal amount, currency or composite
currency and denominations of the unsecured debt securities;
o the price at which the unsecured debt securities will be issued and,
if an index, formula or other method is used, the method for
determining amounts of principal or interest;
o the maturity date and other dates, if any, on which the principal of
the unsecured debt securities will be payable;
o the interest rate or rates, if any, or method of calculating the
interest rate or rates which the unsecured debt securities will bear;
o the date or dates from which interest will accrue and on which
interest will be payable, and the record dates for the payment of
interest;
o the manner of paying principal and interest on the unsecured debt
securities;
o the place or places where principal and interest will be payable;
o the terms of any mandatory or optional redemption of the unsecured
debt securities by us, including any sinking fund;
o the terms of any conversion or exchange right;
o the terms of any redemption of unsecured debt securities at the option
of holders;
o any tax indemnity provisions;
o if payments of principal or interest may be made in a currency other
than U.S. Dollars, the manner for determining such payments;
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o the portion of principal payable upon acceleration of any discounted
unsecured debt security (as described below);
o whether and upon what terms unsecured debt securities may be defeased
(which means that we would be discharged from our obligations by
depositing sufficient cash or government securities to pay the
principal, interest, any premiums and other sums due to the stated
maturity date or a redemption date of the unsecured debt securities of
the series);
o whether any events of default or covenants in addition to or instead
of those set forth in the indenture apply;
o provisions for electronic issuance of unsecured debt securities or for
unsecured debt securities in uncertificated form;
o the ranking of the unsecured debt securities, including the relative
degree, if any, to which the unsecured debt securities of such series
are subordinated to one or more other series of unsecured debt
securities in right of payment, whether outstanding or not;
o any provisions relating to extending or shortening the date on which
the principal and premium, if any, of the unsecured debt securities of
the series is payable;
o any provisions relating to the deferral of payment of any interest;
and
o any other terms not inconsistent with the provisions of the indenture,
including any covenants or other terms that may be required or
advisable under United States or other applicable laws or regulations,
or advisable in connection with the marketing of the unsecured debt
securities. (Section 2.01)
We may issue unsecured debt securities of any series as registered
unsecured debt securities, bearer unsecured debt securities or uncertificated
unsecured debt securities, and in such denominations as we specify in the
securities resolution and prospectus supplement for the series. (Section 2.01)
In connection with its original issuance, no bearer unsecured debt security
will be offered, sold or delivered to any location in the United States. We may
deliver a bearer unsecured debt security in definitive form in connection with
its original issuance only if a certificate in a form we specify to comply with
United States laws and regulations is presented to us. (Section 2.04)
A holder of registered unsecured debt securities may request registration
of a transfer upon surrender of the unsecured debt security being transferred at
any agency we maintain for that purpose and upon fulfillment of all other
requirements of the agent. (Sections 2.03 and 2.07)
We may issue unsecured debt securities under the indenture as discounted
unsecured debt securities to be offered and sold at a substantial discount from
the principal amount of those unsecured debt securities. Special United States
federal income tax and other considerations applicable to discounted unsecured
debt securities will be described in the related prospectus supplement. A
discounted unsecured debt security is an unsecured debt security where the
amount of principal due upon acceleration is less than the stated principal
amount. (Sections 1.01 and 2.10)
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Conversion and Exchange
The terms, if any, on which unsecured debt securities of any series will be
convertible into or exchangeable for our common stock or other equity or debt
securities, property, cash or obligations, or a combination of any of the
foregoing, will be summarized in the prospectus supplement relating to the
series. The terms may include provisions for conversion or exchange, either on a
mandatory basis, at the option of the holder or at our option. (Section 9.01)
Certain Covenants
Any restrictive covenants which may apply to a particular series of
unsecured debt securities will be described in the related prospectus
supplement.
Ranking of Unsecured Debt Securities
Unless stated otherwise in a prospectus supplement, the unsecured debt
securities issued under the indenture will rank equally and ratably with our
other unsecured and unsubordinated debt. The unsecured debt securities will not
be secured by any properties or assets and will represent our unsecured debt.
Our first mortgage bonds, which are secured by substantially all of our
property, will effectively rank senior to any of our unsecured debt securities
to the extent of the value of the property so securing our first mortgage bonds.
If we become bankrupt, liquidate or reorganize, the trustees for the first
mortgage bonds could use this collateral property to satisfy our obligations
under the first mortgage bonds before holders of unsecured debt securities would
receive any payments. As of June 30, 1999 we had approximately $246.1 million of
outstanding first mortgage bonds. If the merger with UtiliCorp is completed, all
of UtiliCorp's secured debt also will effectively rank senior to the unsecured
debt securities. In addition, the unsecured debt securities would be
structurally subordinated to any debt issued by UtiliCorp's subsidiaries.
Successor Obligor
The indenture provides that, unless otherwise specified in the securities
resolution establishing a series of unsecured debt securities, we will not
consolidate with or merge into another company if we are not the survivor and we
will not transfer all or substantially all of our assets to another company
unless:
o that company is organized under the laws of the United States or a
state or is organized under the laws of a foreign jurisdiction and
consents to the jurisdiction of the courts of the United States or a
state;
o that company assumes by supplemental indenture all of our obligations
under the indenture, the unsecured debt securities and any coupons;
o all required approvals of any regulatory body having jurisdiction over
the transaction shall have been obtained; and
o immediately after the transaction no default exists under the
indenture.
However, the indenture allows us to merge with and into UtiliCorp United
Inc., with UtiliCorp as the survivor, pursuant to an Agreement and Plan of
Merger dated as of May 10, 1999, without complying with the above restrictions.
In any case, the successor shall be substituted for us as if it had been an
original party to the indenture, securities resolutions and unsecured debt
securities. Thereafter the successor may exercise our rights
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and powers under the indenture, the unsecured debt securities and any coupons,
and all of our obligations under those documents will terminate. (Section 5.01)
Exchange of Unsecured Debt Securities
Registered unsecured debt securities may be exchanged for an equal
principal amount of registered unsecured debt securities of the same series and
date of maturity in the denominations requested by the holders upon surrender of
the registered unsecured debt securities at an agency we maintain for that
purpose and upon fulfillment of all other requirements of the agent. The agent
may require a holder to pay an amount sufficient to cover any taxes imposed on
an exchange of registered unsecured debt securities. (Section 2.07)
Defaults and Remedies
Unless the securities resolution establishing the series provides for
different events of default, in which event the prospectus supplement will
describe the change, an event of default with respect to a series of unsecured
debt securities will occur if:
o we default in any payment of interest on any unsecured debt securities
of that series when the payment becomes due and payable and the
default continues for a period of 60 days;
o we default in the payment of the principal or premium, if any, of any
unsecured debt securities of the series when those payments become due
and payable at maturity or upon redemption, acceleration or otherwise;
o we default in the payment or satisfaction of any sinking fund
obligation with respect to any unsecured debt securities of the series
as required by the securities resolution establishing the series and
the default continues for a period of 60 days;
o we default in the performance of any of our other agreements
applicable to the series and the default continues for 90 days after
the notice specified below;
o pursuant to or within the meaning of any Bankruptcy Law (as defined
below), we:
-- commence a voluntary case,
-- consent to the entry of an order for relief against us in an
involuntary case,
-- consent to the appointment of a custodian for us and for all or
substantially all of our property, or
-- make a general assignment for the benefit of our creditors;
o a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that remains unstayed and in effect for 60 days and
that:
-- is for relief against us in an involuntary case,
-- appoints a custodian for us and for all or substantially all of
our property, or
-- orders us to liquidate; or
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o there occurs any other event of default provided for in such series.
(Section 6.01)
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "custodian" means any receiver,
trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
(Section 6.01)
A default under the indenture means any event which is, or after notice or
passage of time would be, an event of default under the indenture. A default
under the fourth bullet point above is not an event of default until the trustee
or the holders of at least 25% in principal amount of the series notify us of
the default and we do not cure the default within the time specified after
receipt of the notice. (Section 6.01)
If an event of default occurs under the indenture and is continuing on a
series, the trustee by notice to us, or the holders of at least 25% in principal
amount of the series by notice both to us and to the trustee, may declare the
principal of and accrued interest on all the unsecured debt securities of the
series to be due and payable immediately.
The holders of a majority in principal amount of a series of unsecured debt
securities, by notice to the trustee, may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing events of default on the series have been cured or waived
except nonpayment of principal or interest that has become due solely because of
the acceleration.
If an event of default occurs and is continuing on a series, the trustee
may pursue any available remedy to collect principal or interest then due on the
series, to enforce the performance of any provision applicable to the series, or
otherwise to protect the rights of the trustee and holders of the series.
(Section 6.03)
The trustee may require indemnity satisfactory to it before it performs any
duty or exercises any right or power under the indenture or the unsecured debt
securities which it reasonably believes may expose it to any loss, liability or
expense. (Section 7.01) With some limitations, holders of a majority in
principal amount of the unsecured debt securities of the series may direct the
trustee in its exercise of any trust or power with respect to that series.
(Section 6.05) Except in the case of default in payment on a series, the trustee
may withhold notice of any continuing default if it determines that withholding
the notice is in the interest of holders of the series. (Section 7.04) We are
required to furnish the trustee annually a brief certificate as to our
compliance with all conditions and covenants under the indenture. (Section 4.04)
The indenture does not have a cross-default provision. Thus, a default by
us on any other debt, including our first mortgage bonds or any other series of
unsecured debt securities, would not constitute an event of default under the
indenture. A securities resolution, however, may provide for a cross-default
provision. In that case, the prospectus supplement will describe the terms of
that provision.
Amendments and Waivers
The indenture and the unsecured debt securities or any coupons of the
series may be amended, and any default may be waived as follows:
Unless the securities resolution provides otherwise, in which event the
prospectus supplement will describe the revised provision, we and the trustee
may amend the unsecured debt securities, the indenture and any coupons with the
written consent of the holders of a majority in principal amount of the
unsecured debt securities of all series affected voting as one class. (Section
10.02)
However, without the consent of each unsecured debt security holder
affected, no amendment or waiver may:
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o reduce the principal amount of unsecured debt securities whose holders
must consent to an amendment or waiver;
o reduce the interest on or change the time for payment of interest on
any unsecured debt security (except an election to defer interest in
accordance with the applicable securities resolution);
o change the fixed maturity of any unsecured debt security (subject to
any right we may have retained in the securities resolution and
described in the prospectus supplement);
o reduce the principal of any non-discounted unsecured debt security or
reduce the amount of the principal of any discounted unsecured debt
security that would be due on acceleration thereof;
o change the currency in which the principal or interest on an unsecured
debt security is payable;
o make any change that materially adversely affects the right to convert
or exchange any unsecured debt security; or
o change the provisions in the indenture relating to waiver of past
defaults or relating to amendments with the consent of holders (except
to increase the amount of unsecured debt securities whose holders must
consent to an amendment or waiver or to provide that other provisions
of the indenture cannot be amended or waived without the consent of
each holder affected thereby).
Without the consent of any unsecured debt security holder, we may amend the
indenture or the unsecured debt securities:
o to cure any ambiguity, omission, defect or inconsistency;
o to provide for the assumption of our obligations to unsecured debt
security holders by the surviving company in the event of a merger or
consolidation requiring such assumption;
o to provide that specific provisions of the indenture shall not apply
to a series of unsecured debt securities not previously issued;
o to create a series of unsecured debt securities and establish its
terms;
o to provide for a separate trustee for one or more series of unsecured
debt securities; or
o to make any change that does not materially adversely affect the
rights of any unsecured debt security holder. (Section 10.01)
Legal Defeasance and Covenant Defeasance
Unsecured debt securities of a series may be defeased at any time in
accordance with their terms and as set forth in the indenture and described
briefly below, unless the securities resolution establishing the terms of the
series otherwise provides. Any defeasance may terminate all of our obligations
(with limited exceptions) with respect to a series of unsecured debt securities
and the indenture ("legal defeasance"), or it may terminate only our obligations
under any restrictive covenants which may be applicable to a particular series
("covenant defeasance").
We may exercise our legal defeasance option even though we have also
exercised our covenant defeasance option. If we exercise our legal defeasance
option, that series of unsecured debt securities may not be ac-
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celerated because of an event of default. If we exercise our covenant defeasance
option, that series of unsecured debt securities may not be accelerated by
reference to any restrictive covenants which may be applicable to that
particular series. (Section 8.01)
To exercise either defeasance option as to a series of unsecured debt
securities, we must:
o irrevocably deposit in trust (the "defeasance trust") with the trustee
under the indenture or another trustee money or U.S. government
obligations;
o deliver a certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payments of principal
and interest when due on the deposited U.S. government obligations,
without reinvestment, plus any deposited money without investment,
will provide cash at the times and in the amounts necessary to pay the
principal, premium, if any, and interest when due on all unsecured
debt securities of the series to maturity or redemption, as the case
may be; and
o comply with certain other conditions. In particular, we must obtain an
opinion of tax counsel that the defeasance will not result in
recognition of any gain or loss to holders for federal income tax
purposes.
U.S. government obligations are direct obligations of (a) the United States or
(b) an agency or instrumentality of the United States, the payment of which is
unconditionally guaranteed by the United States, which, in either case (a) or
(b), have the full faith and credit of the United States of America pledged for
payment and which are not callable at the issuer's option. It also includes
certificates representing an ownership interest in such obligations. (Section
8.02)
Regarding the Trustee
Norwest Bank Minnesota, National Association will act as trustee and
registrar for unsecured debt securities issued under the indenture and, unless
otherwise indicated in a prospectus supplement, Norwest will also act as
transfer agent and paying agent with respect to the unsecured debt securities.
(Section 2.03) We may remove the trustee with or without cause if we so notify
the trustee three months in advance and if no default occurs during the
three-month period. (Section 7.07)
DESCRIPTION OF FIRST MORTGAGE BONDS
The first mortgage bonds will be issued as one or more new series under the
Indenture of Mortgage and Deed of Trust, dated as of September 1, 1944, between
us and Harris Trust and Savings Bank ("Principal Trustee") and State Street Bank
and Trust Company of Missouri, N.A., as trustees, as heretofore amended and
supplemented and as to be supplemented by a supplemental indenture for each
series of first mortgage bonds. In this prospectus, we refer to the original
indenture as so amended and supplemented as the "mortgage."
We have summarized selected provisions of the mortgage below. The summary
is not complete. The mortgage (including certain supplemental indentures) are
filed as exhibits to the registration statement of which this prospectus is a
part. The supplemental indenture for each new series will be filed or
incorporated by reference as an exhibit to the registration statement. You
should read the indenture and the applicable supplemental indenture for
provisions that may be important to you. In the summary below, we have included
references to section numbers in the mortgage so that you can easily find those
provisions. The particular terms of any first mortgage bonds we offer will be
described in the related prospectus supplement, along with any applicable
modifications of or additions to the general terms of the first mortgage bonds
described below and in the mortgage. For a description of the terms of any
series of first mortgage bonds, you should also review both the prospectus
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supplement relating to that series and the description of the first mortgage
bonds set forth in this prospectus before making an investment decision.
General
Each series of first mortgage bonds will mature on the date or dates and
bear interest, payable semi-annually, at the rate or rates set forth, or
determined as set forth, in the prospectus supplement by which the series of
first mortgage bonds is offered.
We have has designated the principal office of Harris Trust and Savings
Bank in the city of Chicago, Illinois, as our office or agency where principal,
premium (if any), and interest on the first mortgage bonds will be payable.
Unless the prospectus supplement with respect to a series of first mortgage
bonds provides otherwise, interest on that series of first mortgage bonds will
be paid to the person in whose name such first mortgage bond is registered at
the close of business on the 15th day of the month preceding the interest
payment date in respect thereof. The first mortgage bonds will be issued as
fully registered bonds, without coupons, in denominations of $1,000 and integral
multiples thereof. The first mortgage bonds will be transferable without any
service or other charge by us or the principal trustee except stamp or other
taxes and other governmental charges, if any. (Article I of the supplemental
indenture relating to each series of first mortgage bonds.)
If the merger with UtiliCorp is completed, all outstanding first mortgage
bonds will become UtiliCorp's obligations.
Security
The first mortgage bonds will rank equally, except as to any sinking fund
or similar fund provided for a particular series, with all bonds at any time
outstanding under the mortgage. In the opinion of our counsel, Spencer, Scott &
Dwyer, P.C., the mortgage constitutes a first mortgage lien on substantially all
the fixed property and franchises owned by us, other than property specifically
excepted, subject only to permitted encumbrances as defined in the mortgage and,
as to after-acquired property, to liens thereon existing or liens placed thereon
at the time of acquisition for unpaid portions of the purchase price. The
principal properties subject to the lien of the mortgage are the electric
properties that we own. (Granting and Habendum Clauses and Sections 1.04 and
1.05)
The mortgage contains restrictions on
o the acquisition of property (other than electric equipment subject to
chattel mortgages or similar liens) subject to a prior lien securing
indebtedness exceeding 60% of the sum of the fair value of the
property and 166-2/3% of the amount of bonds issuable on the basis of
property additions; and
o the issuance of bonds, withdrawal of cash or release of property on
the basis of property additions; subject to a prior lien and prior
lien bonds.
In addition, indebtedness secured by a prior lien on property at the time
of its acquisition may not be increased unless the evidences of such increases
are pledged with the principal trustee. (Sections 1.05, 4.16, 4.18 and 4.20)
If the merger with UtiliCorp is completed, the first mortgage bonds will
continue to be secured by the property that was ours prior to the merger and by
any additions or improvements to that property.
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Issuance of Additional First Mortgage Bonds
The mortgage limits the aggregate principal amount of the bonds at any one
time outstanding to $1,000,000,000. (Section 2.01, as amended by the fourteenth
supplemental indenture)
Additional first mortgage bonds may be issued under the mortgage in a
principal amount equal to
(a) 60% of net property additions (as defined in the mortgage) acquired or
constructed after September 1, 1944;
(b) the principal amount of certain retired bonds or prior lien bonds; and
(c) the amount of cash deposited with the principal trustee. (Article 3 of
the mortgage)
No bonds may be issued as provided in clauses (a) and (c) above, nor as
provided in clause (b) above with certain exceptions, unless our net earnings
(as defined in Section 1.06 of the mortgage) are at least two times the annual
interest on all first mortgage bonds (including the first mortgage bonds
proposed to be issued) and indebtedness secured by a prior lien. (Article 3) Net
earnings are computed without deduction of
o income and profits taxes (as defined in the mortgage);
o expenses or provisions for interest on any indebtedness, or for any
sinking or similar fund for retirement of indebtedness; or
o amortization of debt discount and expense. (Section 1.06)
Property additions must consist of property used or useful in the electric
business acquired or constructed by us after September 1, 1944. (Section 1.05)
We may withdraw cash deposited under clause (c) above in an amount equal to
the first mortgage bonds issuable pursuant to clauses (a) and (b) above without
regard to net earnings, or we may apply that cash to the purchase or redemption
of first mortgage bonds of any series designated by us. (Sections 3.09, 3.10 and
8.11)
Redemption Provisions
Any provisions relating to the optional and mandatory redemption by us of
each series of first mortgage bonds will be as set forth in the prospectus
supplement by which each such series is to be offered.
Supplemental indentures under which certain outstanding series of first
mortgage bonds were issued allow the holders of those bonds to require us to
redeem or purchase them under certain circumstances. Provisions providing for
mandatory redemption of any series of first mortgage bonds upon demand by the
holders thereof will be as set forth in the prospectus supplement by which each
such series is to be offered.
Sinking fund provisions applicable to a series of first mortgage bonds, if
any, will be as set forth in the prospectus supplement by which such series is
to be offered.
Maintenance and Replacement Fund
The mortgage does not provide for a maintenance and replacement fund for
any series of first mortgage bonds.
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Dividend Restriction
So long as any of the existing first mortgage bonds are outstanding, we
will not declare or pay any dividends (other than dividends payable in shares of
our common stock) or make any other distribution on, or purchase (other than
with the proceeds of additional common stock financing) any shares of, our
common stock if the cumulative aggregate amount thereof after August 31, 1944
(excluding the first quarterly dividend of $98,000) would exceed the earned
surplus accumulated after August 31, 1944. (Section 4.11, as continued by the
supplemental indentures relating to the existing first mortgage bonds and as
amended by the thirtieth supplemental indenture) Unless the merger with
UtiliCorp is completed, the August 31, 1944 dates in the prior sentence shall be
replaced by the date of succession in the event that another company succeeds to
our rights and liabilities by way of a merger or consolidation. If we choose to
continue this dividend restriction in a new series of first mortgage bonds
issued with this prospectus, the prospectus supplement and supplemental
indenture relating to that series will so state.
Events of Default
The mortgage provides generally that the following events constitute
defaults under the mortgage:
o failure for 60 days to pay any interest due on any outstanding first
mortgage bonds;
o failure to pay when due the principal of any outstanding first
mortgage bonds or the principal of or interest on any outstanding
prior lien bonds;
o failure to perform or observe for 90 days after notice of such failure
any other of the covenants, agreements or conditions of the mortgage
(including the supplemental indentures) or any of the outstanding
first mortgage bonds; and
o the occurrence of insolvency, bankruptcy, receivership or similar
events. (Section 9.01)
Upon the occurrence and continuation of a default, either of the trustees,
or the holders of not less than 25% in principal amount of the outstanding first
mortgage bonds may declare the first mortgage bonds immediately due and payable,
but the holders of a majority in principal amount of the first mortgage bonds
may rescind a declaration and its consequences if that default has been cured.
(Section 9.01)
The holders of not less than 75% in principal amount of the outstanding
first mortgage bonds (including not less than 60% in aggregate principal amount
of first mortgage bonds of each series) may waive any default under the
mortgage, except a default in payment of principal of, or premium or interest
on, the first mortgage bonds and a default arising from the creation of any lien
prior to or on a parity with the lien of the mortgage. (Section 9.21)
We are required to file with the principal trustee such information,
documents and reports with respect to our compliance with the conditions and
covenants of the mortgage as may be required by the rules and regulations of the
SEC. No periodic evidence is required to be furnished, however, as to the
absence of defaults. (Article 9)
Modification of the Mortgage
The mortgage and the rights of bondholders may be modified with the consent
(in writing or given at a meeting of bondholders) of the holders of not less
than 60% in principal amount of the first mortgage bonds then outstanding or, in
the event that all series are not so affected, of not less than 60% in principal
amount of the out-
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standing first mortgage bonds of all series which may be affected by any such
modification voting together. Without the consent of the holder of each first
mortgage bond affected, the bondholders have no power to:
o extend the time of payment of the principal of or interest on any
first mortgage bonds;
o reduce the principal amount of or the rate of interest on any first
mortgage bonds or otherwise modify the terms of payment of principal
or interest;
o permit the creation of any lien ranking prior to or on a parity with
the lien of the mortgage with respect to any of the mortgaged
property;
o deprive any non-assenting bondholder of a lien upon the mortgaged
property for the security of such bondholder's bonds; or
o reduce the percentage of bondholders necessary to modify the mortgage.
Such prohibition against modification does not prevent abolition of or
changes in any sinking or other fund. (Article 15, as amended by the
twenty-fourth supplemental indenture)
Concerning the Trustees
We maintain a line of credit with the principal trustee and have other
banking and trust relationships with each of the trustees.
The mortgage provides that the holders of a majority in principal amount of
the outstanding first mortgage bonds will have the right to require the trustees
to take certain action on behalf of the bondholders. Under certain
circumstances, however, the trustees may decline to follow such directions or to
exercise certain of their powers. Prior to taking such action, the trustees are
entitled to indemnity satisfactory to them against costs, expenses and
liabilities that may be incurred in the course of such action. This right does
not, however, impair the absolute right of any bondholder to enforce payment of
the principal of and interest on the holder's first mortgage bonds when due.
(Sections 9.16 and 9.17)
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DESCRIPTION OF COMMON STOCK
Authorized and Outstanding Capital Stock
Our authorized capital stock consists of 100,000,000 shares of common
stock, of which 17,234,780 shares were outstanding as of June 30, 1999,
5,000,000 shares of cumulative preferred stock, of which no shares are
outstanding, and 2,500,000 shares of preference stock, of which 500,000 shares
are available for issuance under a rights agreement between Empire and
ChaseMellon Shareholder Services.
If the merger with UtiliCorp is completed, in exchange for each share of
our common stock, our stockholders will have the option to receive $29.50 in
cash or shares of UtiliCorp common stock with an average trading price of
$29.50, in each case, subject to the adjustments described below.
The merger agreement with UtiliCorp contains a collar provision under which
the value of the merger consideration per share will decrease if UtiliCorp's
common stock is below $22 per share preceding the closing of the merger and will
increase if UtiliCorp's common stock is above $26 per share preceding the
closing of the merger. Holders of our common stock may elect to take cash or
stock, but total cash paid to them will be limited to no more than 50% of the
total merger consideration, and the UtiliCorp common stock that may be issued in
the merger is limited to 19.9% of the then outstanding common stock of
UtiliCorp.
Dividend Rights
Holders of our common stock are entitled to dividends, if, as and when
declared by our board of directors out of funds legally available therefore
subject to the prior rights of holders of our outstanding cumulative preferred
and preference stock, if any, and our first mortgage bonds.
Holders of our cumulative preferred or preference stock, if any, will be
entitled to receive cumulative dividends if and when declared by our board of
directors, and no dividend may be paid on our common stock unless full dividends
on any outstanding cumulative preferred and preference stock have been paid or
declared and set apart for payment and any required sinking fund payments with
respect to such stock have been made.
Our first mortgage bond indenture also restricts our ability to pay
dividends on our common stock. Please see "Description of First Mortgage Bonds -
Dividend Restriction".
Voting Rights
Subject to the voting rights of holders of the cumulative preferred and
preference stock, if any, and any series thereof, each holder of common stock is
entitled to one vote per share.
Holders of the cumulative preferred stock will not be entitled to vote
except:
o as required by the laws of the State of Kansas;
o upon a proposal to merge or consolidate or to sell substantially all
of our assets;
o upon proposals to authorize or issue specified shares of cumulative
preferred stock or to create, issue or assume specified indebtedness
or to amend our Restated Articles of Incorporation in a way that would
adversely affect any of the preferences or other rights given to
holders of the cumulative preferred stock, if any; or
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o if dividends payable on outstanding shares of the cumulative preferred
stock, if any, shall be accumulated and unpaid in an amount equivalent
to four full quarterly dividends (in this case, until those dividends
are paid, holders of preferred stock would have the right to elect a
majority of our board of directors and have the right to vote,
together with the holders of common stock and the holders of
preference stock, if any, entitled to vote, on all questions other
than for the election of directors).
Holders of any series of preference stock (subject to the prior rights of
holders of any outstanding cumulative preferred stock) will have such voting
rights as may be fixed by our board of directors for such series. Holders of
preference stock will not otherwise be entitled to vote except as may be
required by the laws of the State of Kansas.
Preference Stock Purchase Rights
Each Share of our common stock carries with it one-half of one preference
stock purchase right. For a full description of those rights, please see our
Form 8-A/A Registration Statement dated June 19, 1999, which is incorporated
into this prospectus by reference.
Articles of Incorporation
Business Combinations. Our articles require the affirmative vote of at
least 80% of all outstanding shares of our voting stock to approve any Business
Combination, as defined below, with a Substantial Stockholder, as defined below.
For this purpose, a Substantial Stockholder means any person or company that
owns 5% of our outstanding voting stock. A Business Combination means:
o any merger, consolidation or share exchange involving Empire;
o any sale or other disposition by us to a Substantial Stockholder, or
by a Substantial Stockholder to us, of assets worth $10 million or
more;
o the issuance or transfer by us of securities worth $10 million or
more;
o the adoption of any plan of liquidation or dissolution proposed by a
Substantial Stockholder; or
o any recapitalization or other restructuring of Empire that has the
effect of increasing the proportionate ownership of a Substantial
Stockholder.
The 80% voting requirement does not apply if at least two-thirds of our
Continuing Directors, as defined below, approve the Business Combination, or all
of the following conditions have been met:
o the ratio of (1) the per share consideration received by our
stockholders in the Business Combination to (2) the fair market value
of our stock immediately before the announcement of the Business
Combination is at least equal to the ratio of (1) the highest price
per share that the Substantial Stockholder paid for any shares of
stock within the 2-year period prior to the Business Combination to
(2) the fair market value of our stock immediately prior to the
initial acquisition by the Substantial Stockholder of any stock during
the 2-year period;
o the per share consideration received by our stockholders in the
Business Combination must be at least equal to the highest of the
following:
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- The highest price per share paid by the Substantial Stockholder
within the 2-year period prior to the first public announcement
of the Business Combination or in the transaction in which the
stockholder became a Substantial Stockholder, whichever is
higher, plus interest;
- the fair market value per share of our stock on the date of the
first public announcement of the Business Combination or the date
the stockholder became a Substantial Stockholder, whichever is
higher;
- the book value per share of our stock on the last day of the
calendar month immediately before (1) the date of the first
public announcement of the Business Combination or (2) the date
the stockholder became a Substantial Stockholder, whichever is
higher; or
- the highest preferential amount to which the stockholder is
entitled in the event of a voluntary or involuntary liquidation
or dissolution;
o the consideration received by our stockholders must be in the same
form paid by the Substantial Stockholder in acquiring its shares;
o except as required by law, after the stockholder became a Substantial
Stockholder there is no reduction in the rate of dividends, except as
approved by at least two-thirds of the Continuing Directors; we do not
take any action which allows any holder of any cumulative preferred
stock or any preference stock to elect directors without the approval
of the Continuing Directors; the Substantial Stockholder does not
acquire any newly issued voting shares from Empire; and the
Substantial Stockholder does not acquire any additional Empire voting
shares or securities convertible into Empire voting shares after
becoming a Substantial Stockholder;
o prior to the consummation of the Business Combination, the Substantial
Stockholder does not receive any financial assistance from us and does
not make any change in our business or equity capital structure
without approval of the Continuing Directors; and
o a disclosure statement that satisfies the SEC's proxy rules is sent to
the voting stockholders describing the Business Combination.
For this purpose, Continuing Directors means directors who were directors
before a Substantial Stockholder became a Substantial Stockholder or any person
designated as a Continuing Director by at least two-thirds of the then
Continuing Directors.
Amendment of By-Laws. The Articles also require the affirmative vote of
holders of at least 80% of the shares entitled to vote or at least two-thirds of
the Continuing Directors to amend our By-Laws.
Classified Board. Under the Articles, our board of directors is divided
into three classes, one of which is elected for a three-year term at each annual
meeting of stockholders.
Notice Provisions. The Articles further require that stockholders give
timely written notice to us of nominations for Empire directors they intend to
make and business they intend to bring before a meeting of the stockholders.
Notice is timely if received by our Secretary not less than 35 nor more than 50
days prior to a meeting. In the case of proposed business, the stockholder's
notice must set forth information describing the business and in the case of
nominations for directors, the Articles would further require that the
stockholder's notice set forth certain information concerning the stockholder
and the nominee.
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Amendment. The affirmative vote of the holders of at least 80% of the
shares entitled to vote or at least two-thirds of the Continuing Directors is
required to amend or repeal the above described provisions or adopt a provision
inconsistent therewith.
Certain Anti-Takeover Provisions
Change of Control Agreements. We have a Severance Plan which provides
certain key employees with severance benefits. Five of our executive officers
and 23 other key employees have entered into one-year agreements under the
Severance Plan which are automatically extended for three years following a
change in control and may be terminated thereafter. The approval of the merger
with UtiliCorp by our stockholders at the special meeting held on September 3,
1999 constituted a change of control for the purposes of the Severance Plan.
A participant in the Severance Plan is entitled to receive certain benefits
in the event of certain involuntary terminations of employment (including
terminations by the employee following certain changes in duties, benefits, etc.
that are treated as involuntary terminations) occurring within three years after
a change in control, or a voluntary termination of employment occurring between
twelve and eighteen months after a change in control. A senior officer
participant would be entitled to receive benefits of three times that
participant's annual base salary and average annual incentive compensation. A
participant who is not a senior officer would receive approximately two weeks of
severance compensation for each full year of employment with Empire with a
minimum of 17 weeks. Payments to participants resulting from involuntary
terminations are to be paid in a lump sum within 30 days following termination,
while payments resulting from voluntary termination are paid in monthly
installments and cease if the participant becomes otherwise employed.
In addition, all restricted stock held by a participant vests upon a
voluntary or involuntary termination after a change in control. Also, all
participants who qualify for payments under the Severance Plan will continue to
receive benefits for a specified period of time under our health, insurance and
other employee benefit plans in existence at the time of the change in control,
and senior officer participants will be entitled to supplemental payments equal
to the additional benefits they would have earned under our qualified and
nonqualified defined benefit plans at the time they begin to receive benefits.
If any payments under the Severance Plan are subject to the excise tax on
"excess parachute payments" under Section 4999 of the Internal Revenue Code,
senior officer participants are also entitled to an additional amount
essentially designed to put them in the same after-tax position as if this
excise tax had not been imposed.
Kansas Business Combination Statute. We are subject to the provisions of
the "business combination statute" in Kansas (Sections 17-12,100 to 12,104 of
the Kansas General Corporation Code). This statute prevents an "interested
stockholder" from engaging in a "business combination" with a Kansas corporation
for three years following the date such person became an interested stockholder,
unless:
o prior to that time, the board of directors of the corporation approved
either the business combination or the transaction that resulted in
such person becoming an interested stockholder;
o upon consummation of the transaction that resulted in such person
becoming an interested stockholder, the interested stockholder owned
at least 85% of the voting stock of the corporation outstanding at the
time the transaction commenced, excluding shares owned by persons who
are directors and also officers of the corporation and shares held by
specified employee stock ownership plans; or
o on or after the date of the transaction in which such person became an
interested stockholder, the business combination is approved by the
board of directors of the corporation and authorized at a meeting of
stockholders by the affirmative vote of the holders of at least
two
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-thirds of the outstanding voting stock of the corporation not owned
by the interested stockholder.
The statute defines a "business combination" to include:
o any merger or consolidation involving the corporation and an
interested stockholder;
o any sale, transfer, pledge or other disposition of 10% or more of the
assets of the corporation involving an interested stockholder;
o subject to certain exceptions, any transaction which results in the
issuance or transfer by the corporation of any stock of the
corporation to an interested stockholder;
o any transaction involving the corporation which has the effect of
increasing the proportionate share of the stock of any class or series
of the corporation beneficially owned by the interested stockholder;
or
o the receipt by an interested stockholder of any loans, guarantees,
pledges or other financial benefits provided by or through the
corporation.
In addition, the statute defines an "interested stockholder" as an entity
or person beneficially owning 15% or more of the outstanding voting stock of the
corporation and any entity or person affiliated with or controlling or
controlled by such entity or person.
Liquidation Rights
On liquidation the holders of the common stock are entitled to receive any
of our assets remaining after distribution to the holders of cumulative
preferred and preference stock, if any, of the liquidation preferences of such
classes of stock and accumulated unpaid dividends thereon.
Other
In addition to the limitations described above under "--Dividend Rights",
we may not purchase any shares of common stock unless full dividends shall have
been paid or declared and set apart for payment on the outstanding cumulative
preferred and preference stock, if any, and any required sinking fund payments
with respect to such stock have been made. The common stock is not subject to
redemption and has no conversion or preemptive rights.
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PLAN OF DISTRIBUTION
We may sell the securities in any of the following ways:
o through underwriters or dealers;
o directly to one or more purchasers; or
o through agents.
The applicable prospectus supplement will set forth the terms of the
offering of any securities, including:
o the names of any underwriters or agents;
o the purchase price of the securities being offered and the proceeds to
us from such sale;
o any underwriting discounts and other items constituting underwriters'
compensation;
o any initial public offering price;
o any discounts or concessions allowed or reallowed or paid to dealers;
and
o any securities exchanges on which the securities being offered may be
listed.
If underwriters are used in the sale of the securities, the securities will
be acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated transactions, at
a fixed public offering price or at varying prices determined at the time of
sale. Those securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. Unless otherwise described in the applicable prospectus supplement,
the obligations of the underwriters to purchase the securities being offered
will be subject to certain conditions precedent, and the underwriters will be
obligated to purchase all of the securities being offered if any of the
securities being offered are purchased. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time. Only underwriters named in a prospectus supplement
are deemed to be underwriters in connection with the securities offered thereby.
Securities also may be sold directly by us or through agents that we
designate from time to time. Any agent involved in the offer or sale of
securities will be named and any commissions payable by us to such agent will be
described in the applicable prospectus supplement. Unless otherwise described in
the applicable prospectus supplement, any such agent will act on a best efforts
basis for the period of its appointment.
If underwriters are used in any sale of our common stock, the purchase
agreement in connection with that sale may provide for an option on the part of
the underwriters to purchase additional shares of our common stock within thirty
days of the execution of the purchase agreement, which option may be exercised
solely to cover overallotments. Any such overallotment option will be disclosed
in the prospectus supplement in connection with the common stock offered
thereby.
If indicated in a prospectus supplement relating to our unsecured debt
securities or our first mortgage bonds, we may authorize agents, underwriters or
dealers to solicit offers by certain institutions to purchase such unsecured
debt securities or first mortgage bonds from us at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on the date or dates stated
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in the prospectus supplement. Each delayed delivery contract will be for an
amount not less than, and the aggregate amount of the unsecured debt securities
or first mortgage bonds sold pursuant to the delayed delivery contracts shall be
not less nor more than, the respective amounts stated in the prospectus
supplement. Institutions with whom the delayed delivery contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions, and other institutions, but will in all cases be subject to our
approval. The delayed delivery contracts will not be subject to any conditions
except:
o the purchase by an institution of the unsecured debt securities or
first mortgage bonds covered by its delayed delivery contract shall
not, at the time of delivery, be prohibited under the laws of any
jurisdiction in the United States to which such institution is
subject; and
o if the unsecured debt securities or first mortgage bonds are being
sold to underwriters, we shall have sold to those underwriters the
total amount of the unsecured debt securities or first mortgage bonds
less the amount thereof covered by the delayed delivery contracts. The
underwriters will not have any responsibility in respect of the
validity or performance of the delayed delivery contracts.
If dealers are utilized in the sale of any securities we will sell those
securities to the dealers, as principal. Any dealer may then resell those
securities to the public at varying prices as it determines at the time of
resale. The name of any dealer and the terms of the transaction will be set
forth in the prospectus supplement relating to the securities being offered
thereby.
We have not determined whether the unsecured debt securities or first
mortgage bonds will be listed on a securities exchange. Underwriters will not be
obligated to make a market in any of the securities. We cannot predict the
activity of trading in, or liquidity of, our unsecured debt securities or first
mortgage bonds. The common stock will be listed on the New York Stock Exchange.
Any underwriters, dealers or agents participating in the distribution of
securities may be deemed to be underwriters and any discounts or commissions
received by them on the sale or resale of securities may be deemed to be
underwriting discounts and commissions under the Securities Act of 1933. Agents
and underwriters may be entitled under agreements entered into with us to
indemnification by us against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments that the agents
or underwriters may be required to make in respect thereof. Agents and
underwriters may be customers of, engaged in transactions with, or perform
service for, us or our affiliates in the ordinary course of business.
LEGAL OPINIONS
Certain legal matters in connection with the securities are being passed
upon for us by Spencer, Scott & Dwyer, P.C., Joplin, Missouri; Anderson, Byrd,
Richeson, Flaherty & Henrichs, Ottawa, Kansas; Brydon, Swearengen & England,
Professional Corporation, Jefferson City, Missouri; and Cahill Gordon & Reindel
(a partnership including a professional corporation), New York, New York.
Certain legal matters are being passed upon for the underwriters by Thompson
Coburn LLP, St. Louis Missouri. Cahill Gordon & Reindel is relying as to the
matters of Kansas law upon the opinion of Anderson, Byrd, Richeson, Flaherty and
Henrichs, and as to matters of Missouri law (except as to matters relating to
the approval of public utility commissions) upon the opinion of Spencer, Scott &
Dwyer, P.C.
EXPERTS
The Empire District Electric Company's financial statements incorporated in
this prospectus by reference to Empire's Annual Report on Form 10-K for the year
ended December 31, 1998 have been so incorporated
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<PAGE>
in reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
UtiliCorp United, Inc.'s financial statements and schedules incorporated in
this prospectus by reference to UtiliCorp United, Inc.'s Annual Report on Form
10-K have been audited by Arthur Andersen LLP, independent public accountants,
as indicated in their report with respect thereto, and are incorporated herein
in reliance upon the authority of said firm as experts in giving said reports.
-24-
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
No dealer, salesperson, or other person is authorized to give THE EMPIRE DISTRICT
any information or to represent anything not contained in this ELECTRIC COMPANY
prospectus. You must not rely on any unauthorized information
or representations. This prospectus is an offer to sell only
the securities offered hereby, but only under circumstances
and in jurisdictions where it is lawful to do so. The
information contained in this prospectus is current only as of
its date.
----------------
$150,000,000
TABLE OF CONTENTS
COMMON STOCK
Page
UNSECURED DEBT SECURITIES
Where You Can Find More Information......
Forward Looking Statements............... AND
Information About Empire.................
Information About UtiliCorp.............. FIRST MORTGAGE BONDS
Use of Proceeds..........................
Earnings Ratios..........................
Description of Unsecured Debt Securities.
Description of First Mortgage Bonds......
Description of Common Stock..............
Plan of Distribution.....................
Legal Opinions...........................
Experts..................................
----------------
PROSPECTUS
----------------
Dated , 1999
</TABLE>
<PAGE>
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission Registration Fee............. $ 41,700
Counsel Fees and Expenses....................................... 126,500(1)
Services of Independent Accountants............................. 38,500(1)
Trustee's Fees and Expenses..................................... 33,000(1)(2)
Printing Expenses, including Engraving.......................... 154,000(1)
First Mortgage Bonds and Unsecured Debt Securities Rating Fees.. 44,000(1)(2)
Blue Sky Fees and Expense....................................... 16,500(1)
Transfer Agent and Registrar Fees............................... 5,500(1)(3)
Stock Exchange Listing Fees..................................... 10,000(3)
Miscellaneous Expenses.......................................... 15,300(1)
======
Total......................................... $485,000(1)
- --------------------
(1) Estimated as if the securities were sold in three different offerings with
three separate prospectus supplements.
(2) Required only if unsecured debt securities or first mortgage bonds are
issued.
(3) Required only if common stock is issued.
II-1
<PAGE>
Item 15. Indemnification of Officers and Directors.
The Empire District Electric Company is organized under the laws of the
State of Kansas. Our Articles of Incorporation and Bylaws contain provisions
permitted by the Kansas General Corporation Code which, in general terms,
provide that directors and officers will be indemnified by us for all losses
that may be incurred by them in connection with any claim or legal action in
which they may become involved by reason of their service as a director or
officer of Empire, if they meet certain specified conditions, and provide for
the advancement by us to our directors and officers of expenses incurred by them
in defending suits arising out of their service as such.
Our directors and officers are covered by insurance indemnifying them
against certain liabilities which might be incurred by them in their capacities
as such, including certain liabilities arising under the Securities Act of 1933.
The premium for this insurance is paid by us.
The proposed forms of purchase agreements between us and any purchaser,
filed as Exhibits 1(a), 1(b) and 1(c) hereto, contain descriptions of the
indemnification arrangements with respect to this offering, and are incorporated
herein by reference.
Item 16. Exhibits.
Reference is made to the Exhibit Index filed as a part of this registration
statement.
Item 17. Undertakings.
We, the undersigned registrant, hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities being offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-2
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustees to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Securities and Exchange Commission under Section
305(b)(2) of the Trust Indenture Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Joplin, State of Missouri, on September 13, 1999.
THE EMPIRE DISTRICT ELECTRIC COMPANY
By: /s/ Myron W. McKinney
----------------------------------
Myron W. McKinney
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Myron W. McKinney President, Chief Executive Officer and September 13, 1999
- ------------------------------------------ Director (Principal Executive Officer)
Myron W. McKinney
/s/ R.B. Fancher Vice President-Finance (Principal Financial September 13, 1999
- ------------------------------------------ Officer)
R.B. Fancher
/s/ G.A. Knapp* Controller and Assistant Treasurer September 13, 1999
- ------------------------------------------ (Principal Accounting Officer)
G.A. Knapp
/s/ V.E. Brill* Director September 13, 1999
- ------------------------------------------
V.E. Brill
- ------------------------------------------ Director
M.F. Chubb, Jr.
/s/ R.D. Hammons* Director September 13, 1999
- ------------------------------------------
R.D. Hammons
/s/ R.C. Hartley* Director September 13, 1999
- ------------------------------------------
R.C. Hartley
/s/ J.R. Herschend* Director September 13, 1999
- ------------------------------------------
J.R. Herschend
- ------------------------------------------ Director
F.E. Jeffries
- ------------------------------------------ Director
R.L. Lamb
/s/ R.E. Mayes* Director September 13, 1999
- ------------------------------------------
R.E. Mayes
<PAGE>
- ------------------------------------------ Director
M.M. Posner
*By/s/ R.B. Fancher
------------------------------------------
(R.B. Fancher, as attorney in fact for
each of the persons indicated)
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
1(a)* - Form of Purchase Agreement for Common Stock.
1(b)* - Form of Purchase Agreement for Unsecured Debt Securities
1(c)* - Form of Purchase Agreement for First Mortgage Bonds
4(a) - Restated Articles of Incorporation (Incorporated by reference to Exhibit
4(a) to Registration Statement No. 33-54539 on Form S-3).
4(b) - Rights Agreement dated July 26, 1990 between Empire and ChaseMellon
Shareholder Services, LLC (successor to Manufacturers Hanover Trust
Company), as Rights Agent (Incorporated by reference to Exhibit 4(a) to
Form 8-K, File No. 1-3368).
4(c) - Amendment #1 to Rights Agreement dated October 24, 1991 (Incorporated by
reference to Exhibit 4 to Form 10-Q for the quarter ended September 30,
1991, File No. 1-3368).
4(d) - Amendment #2 to Rights Agreement dated May 10, 1999 (Incorporated by
reference to Exhibit 4(b) to Form 10-Q for the quarter ended June 30, 1999,
File No. 1-3368).
4(e) - Indenture of Mortgage and Deed of Trust dated as of September 1, 1944 and
First Supplemental Indenture thereto among Empire, Harris Trust and Savings
Bank, and State Street Bank and Trust Company of Missouri, N.A.
(Incorporated by reference to Exhibits B(1) and B(2) to Form 10, File No.
1-3368).
4(f) - Third and Sixth through Eighth Supplemental Indentures to Indenture of
Mortgage and Deed of Trust (Incorporated by reference to Exhibit 2(c) to
Form S-7, File No. 2-59924).
4(g) - Fourteenth Supplemental Indenture to Indenture of Mortgage and Deed of
Trust.
4(h) - Seventeenth Supplemental Indenture to Indenture of Mortgage and Deed of
Trust (Incorporated by reference to Exhibit 4(j) to Form 10-K for the year
ended December 31, 1990, File No. 1-3368).
4(i) - Eighteenth Supplemental Indenture to Indenture of Mortgage and Deed of
Trust (Incorporated by reference to Exhibit 4 to Form 10-Q for the quarter
ended June 30, 1992, File No. 1-3368).
<PAGE>
-2-
4(j) - Twentieth Supplemental Indenture to Indenture of Mortgage and Deed of
Trust (Incorporated by reference to Exhibit 4(m) to Registration Statement
No. 33-66748 on Form S-3, filed July 30, 1993).
4(k) - Twenty-First Supplemental Indenture to Indenture of Mortgage and Deed of
Trust (Incorporated by reference to Exhibit 4 to Form 10-Q for the quarter
ended September 30, 1993, File No. 1-3368).
4(l) - Twenty-Second Supplemental Indenture to Indenture of Mortgage and Deed of
Trust (Incorporated by reference to Exhibit 4(k) to Form 10-K for the year
ended December 31, 1993, File No. 1-3368).
4(m) - Twenty-Third Supplemental Indenture to Indenture of Mortgage and Deed of
Trust (Incorporated by reference to Exhibit 4(l) to Form 10-K for the year
ended December 31, 1993, File No. 1-3368).
4(n) - Twenty-Fourth Supplemental Indenture to Indenture of Mortgage and Deed of
Trust (Incorporated by reference to Exhibit 4(m) to Form 10-K for the year
ended December 31, 1993, File No. 1-3368).
4(o) - Twenty-Fifth Supplemental Indenture dated as of November 1, 1994 to
Indenture of Mortgage and Deed of Trust (Incorporated by reference to
Exhibit 4(p) to Form S-3, File No. 33-56635).
4(p) - Twenty-Sixth Supplemental Indenture dated as of April 1, 1995 to
Indenture of Mortgage and Deed of Trust (Incorporated by reference to
Exhibit 4 to Form 10-Q for the quarter ended March 31, 1995, File No.
1-3368).
4(q) - Twenty-Seventh Supplemental Indenture dated as of June 1, 1995 to
Indenture of Mortgage and Deed of Trust (Incorporated by reference to
Exhibit 4 to Form 10-Q for the quarter ended June 30, 1995, File No.
1-3368).
4(r) - Twenty-Eighth Supplemental Indenture dated as of December 1, 1996 to
Indenture of Mortgage and Deed of Trust (Incorporated by reference to
Exhibit 4 to Form 10-K for the year ended December 31, 1996, File No.
1-3368).
4(s) - Twenty-Ninth Supplemental Indenture dated as of April 1, 1998 to
Indenture of Mortgage and Deed of Trust (Incorporated by reference to
Exhibit 4 to Form 10-Q for the quarter ended March 31, 1998, File No.
1-3368).
4(t) - Thirtieth Supplemental Indenture dated as of July 1, 1999 to Indenture of
Mortgage and Deed of Trust (Incorporated by reference to Exhibit 4(a) to
Form 10-Q for the quarter ended June 30, 1999, File No. 1-3368).
4(u)* - Form of Supplemental Indenture relating to the First Mortgage Bonds.
<PAGE>
-3-
4(v)* - Indenture for Unsecured Debt Securities, dated as of September 10, 1999
between Empire and Norwest Bank Minnesota, National Association.
4(w)* - Form of Securities Resolution for Unsecured Debt Securities.
4(x) - Agreement and Plan of Merger, dated as of May 10, 1999, between Empire
and UtiliCorp United Inc. (Incorporated by reference to Exhibit 2 to Form
10-Q for the quarter ended March 31, 1999, File No. 1-3368).
5(a)* - Opinion of Anderson, Byrd, Richeson, Flaherty & Henrichs regarding the
legality of the Common Stock and the Unsecured Debt Securities.
5(b)* - Opinion of Spencer, Scott & Dwyer, P.C. regarding the legality of the
First Mortgage Bonds
12 - Computation of Ratios of Earnings to Fixed Charges and Earnings to
Combined Fixed Charges and Preferred Stock Dividend Requirements
(incorporated by reference to Exhibit 12 to Form 10-Q for the quarter ended
June 30, 1999, File No. 1-3368 and Exhibit 12 to Form 10-K for the year
ended December 31, 1998, File No. 1-3368).
23(a)* - Consent of PricewaterhouseCoopers LLP.
23(b)* - Consent of Arthur Andersen LLP.
23(c) - Consent of Anderson, Byrd, Richeson, Flaherty & Henrichs (included in
Exhibit 5(a) hereto).
23(d) - Consent of Spencer, Scott & Dwyer, P.C. (included in Exhibit 5(b)
hereto).
24* - Powers of Attorney.
25(a)* - Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 (on Form T-1) of Harris Trust and Savings Bank.
25(b)* - Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 (on Form T-1) of State Street Bank and Trust Company of
Missouri, N.A.
25(c)* - Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 (on Form T-1) of Norwest Bank Minnesota, National Association.
- -----------------------
* Filed herewith.
Exhibit 1(a)
THE EMPIRE DISTRICT ELECTRIC COMPANY
COMMON STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
<PAGE>
THE EMPIRE DISTRICT ELECTRIC COMPANY
STANDARD PURCHASE PROVISIONS -- COMMON STOCK
From time to time, The Empire District Electric Company, a Kansas
corporation ("Company"), may enter into purchase agreements that provide for the
sale of shares of the Company's common stock to the purchaser or purchasers
named therein. The standard provisions set forth herein may be incorporated by
reference in any such purchase agreement ("Purchase Agreement"). The Purchase
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as "this Agreement." Unless otherwise defined herein,
terms defined in the Purchase Agreement are used herein as therein defined.
1. Introductory. The Company proposes to issue and sell, from time to time,
common stock, $1.00 par value, registered under the registration statement
referred to in Section 3(a) ("Common Stock"). Each share of Common Stock will
have associated with it one-half of one preference stock purchase right. Each
such right enables the holder to acquire one one-hundredth of a share of the
Company's Series A Participating Preference Stock under certain circumstances.
The shares of Common Stock referred to on Schedule A of the Purchase Agreement
are hereinafter referred to as the "Firm Common Stock." The Purchase Agreement
may provide for an additional number of shares of Common Stock (the "Additional
Common Stock") which the purchasers may purchase on the terms and conditions set
forth in this Agreement for the sole purpose of covering over-allotments. The
Firm Common Stock and the Additional Common Stock, if any, are collectively
referred to as the "Purchased Common Stock." The firm or firms, as the case may
be, which agree to purchase the Purchased Common Stock are hereinafter referred
to as the "Purchasers" of such Purchased Common Stock. The terms "you" and
"your" refer to those Purchasers (or the Purchaser) who sign the Purchase
Agreement either on behalf of themselves (or itself) only or on behalf of the
several Purchasers named in Schedule A thereto, as the case may be.
2. Sale and Delivery of Common Stock. Subject to the terms and conditions
set forth in this Agreement, the Company will deliver the Firm Common Stock to
you for the account of the Purchasers, at the place set forth in the Purchase
Agreement against payment of the purchase price therefor by wire transfer or
certified or official bank check or checks in immediately available funds or
clearing house funds payable to the order of the Company, all as set forth in
the Purchase Agreement, at the time set forth in the Purchase Agreement or at
such other time not later than seven full business days thereafter as you and
the Company determine, such time being herein referred to as the "Closing Date."
The Company agrees to make available to you for inspection and packaging at the
place set forth in the Purchase Agreement, at least one full business day prior
to the Closing Date, the Firm Common Stock so to be delivered in good delivery
form and in such denominations and registered in such names as you shall have
requested, all such requests to have been made in writing at
<PAGE>
-3-
least three full business days prior to the Closing Date, or if no such request
is made, registered in the names of the several Purchasers as set forth in
Schedule A to the Purchase Agreement.
If there is any Additional Common Stock, the Purchasers shall have the
option to purchase, severally and not jointly, from the Company, ratably in
accordance with the number of shares of Firm Common Stock to be purchased by
each of them (subject to such adjustment as you shall determine to avoid
fractional shares), all or a portion of the Additional Common Stock, if any, as
may be necessary to cover over-allotments made in connection with the offering
of the Firm Common Stock, at the same purchase price per share to be paid by the
Purchasers to the Company for the Firm Common Stock, all subject to the terms
and conditions set forth in this Agreement. This option may be exercised at any
time (but not more than once) on or before the thirtieth day following the date
hereof, by your written notice to the Company. Such notice shall set forth the
aggregate number of shares of Additional Common Stock as to which the option is
being exercised, and the date and time when the Additional Common Stock is to be
delivered (such date and time being herein referred to as the "Additional
Closing Date"); provided, however, that the Additional Closing Date shall not be
earlier than the Closing Date nor earlier than the third business day after the
date on which the option shall have been exercised nor later than the eighth
business day after the date on which the option shall have been exercised. The
number of shares of Additional Common Stock to be sold to each Purchaser shall
be the number which bears the same proportion to the aggregate number of shares
of Additional Common Stock being purchased as the number of shares of Firm
Common Stock set forth opposite the name of such Purchaser on Schedule A to the
Purchase Agreement bears to the total number of shares of Firm Common Stock
(subject, in each case, to such adjustment as you may determine to eliminate
fractional shares).
Payment of the purchase price for the Additional Common Stock, if any,
shall be made on the Additional Closing Date in the same manner and at the same
office as the payment for the Firm Common Stock. The Company agrees to make
available to you for inspection and packaging at the place set forth in the
Purchase Agreement, at least one full business day prior to the Additional
Closing Date, the Additional Common Stock so to be delivered in good delivery
form and in such denominations and registered in such names as you shall have
requested, all such requests to have been made in writing at least three full
business days prior to the Additional Closing Date, or if no such request is
made, registered in the names of the several Purchasers as set forth in Schedule
A to the Purchase Agreement.
If the Additional Closing Date occurs after the Closing Date, then the
obligation of the Purchasers to purchase the Additional Common Stock shall be
conditioned upon receipt of supplemental opinions, certificates and letters
confirming as of the Additional Closing Date the opinions, certificates and
letters delivered on the Closing Date pursuant to Section 6 hereof.
<PAGE>
-4-
3. Representations and Warranties of the Company. The Company represents
and warrants to each Purchaser that:
(a) The registration statement referred to in the Purchase Agreement
and relating to the Common Stock including a prospectus and all documents
incorporated by reference therein has been filed on Form S-3 with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, including the prospectus supplement with
respect to the Purchased Common Stock referred to in Section 2 (the
"Prospectus Supplement") and all prior amendments and supplements thereto
(other than supplements and amendments relating to securities that are not
Purchased Common Stock) and all documents filed as a part thereof or
incorporated therein pursuant to Item 12 of Form S-3, is hereinafter
referred to as the "Registration Statement" and such prospectus, as so
amended or supplemented (including all material so incorporated by
reference therein), in the form first filed by the Company pursuant to Rule
424(b) under the Act is hereinafter referred to as the "Prospectus."
(b) The Registration Statement and the Prospectus conform in all
respects to the requirements of the Securities Act of 1933, as amended
("Act") and the pertinent published rules and regulations ("Rules and
Regulations") of the Commission, and none of such documents includes any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements or
omissions in either of such documents based upon written information
furnished to the Company by any Purchaser specifically for use therein. The
documents incorporated by reference in the Registration Statement or the
Prospectus pursuant to Item 12 of Form S-3 of the Act, at the time they
were filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the pertinent published rules and regulations
thereunder (the "Exchange Act Rules and Regulations") and any additional
documents deemed to be incorporated by reference in the Prospectus will,
when they are filed with the Commission, comply in all material respects
with the requirements of the Exchange Act and the Exchange Act Rules and
Regulations and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
4. Agreements of the Company. The Company agrees with the several
Purchasers that:
<PAGE>
-5-
(a) The Company will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus with respect to any
Purchased Common Stock, and will furnish you a copy thereof prior to the
filing thereof with the Commission.
(b) The Company will furnish to you copies of the registration
statement relating to the Common Stock as originally filed and all
amendments thereto (at least one of which will be signed and will include
all exhibits except those incorporated by reference to previous filings
with the Commission), each related prospectus, the Prospectus, and all
amendments and supplements to such documents (except supplements relating
to Common Stock which is not Purchased Common Stock), in each case as soon
as available and in such quantities as you reasonably request for the
purposes contemplated by the Act.
(c) If at any time when a prospectus relating to the Purchased Common
Stock is required to be delivered under the Act or the Rules and
Regulations, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which made, not misleading, or
if it is necessary at any time to amend or supplement the Prospectus to
comply with the Act or the Rules and Regulations, the Company will promptly
notify the Purchasers and promptly prepare and file with the Commission an
amendment or supplement to the Registration Statement or any appropriate
filing pursuant to Section 13 or 14 of the Exchange Act which will correct
such statement or omission or an amendment which will effect such
compliance, and deliver in connection therewith, such Prospectus or
amendments or supplements to the Purchasers in such quantity as may be
necessary to permit compliance with the requirements of the Act and the
Rules and Regulations, provided that the Company shall be so obligated only
so long as the Company is notified of unsold allotments (failure by the
Purchasers to so notify the Company cancels the Company's obligation under
this Section 4(c)), and provided further that any such Prospectus or
amendment or supplement required later than nine months from the date
hereof shall be furnished at the Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers in taking such
action as may be necessary to qualify the Purchased Common Stock for
offering and sale under the securities laws of any state or jurisdiction of
the United States as the Purchasers may reasonably request and will use its
best efforts to continue such qualification in effect so long as required
for the distribution of the Purchased Common Stock; provided, however, that
the Company shall not be required to qualify as a foreign corporation, or
to file a general consent to service of process, in any such state or
jurisdic-
<PAGE>
-6-
tion or to comply with any other requirement deemed by the Company to be
unduly burdensome.
(e) The Company will make generally available to its security holders
as soon as practicable an earning statement (as contemplated by Rule 158
under the Act) covering a period of twelve months commencing after the
effective date of the Registration Statement.
(f) For a period of three years, the Company will furnish to you
copies of any report or definitive proxy statement which the Company shall
file with the Commission under the Exchange Act, and copies of all reports
and communications which shall be sent to stockholders generally, at or
about the time such reports and other information are first furnished to
stockholders generally.
(g) The Company will apply the net proceeds from the offering of the
Purchased Common Stock as set forth under the caption "Use of Proceeds" in
the Prospectus Supplement.
(h) If a public offering of the Purchased Common Stock is to be made,
the Company will not offer or sell any of its other common stock (other
than pursuant to the Company's dividend reinvestment and stock purchase
plan or any employee benefit or other plan in effect on the date of this
Agreement) prior to 120 days after the Closing Date without the consent of
the Purchasers.
5. Expenses. The Company and the Purchasers agree as follows:
(a) The Company, whether or not the transactions contemplated
hereunder are consummated, will (except as provided in Section 4(c) hereof)
pay all costs and expenses incident to the performance of its obligations
hereunder, including without limitation, all costs and expenses in
connection with (i) the preparation and filing of the Registration
Statement and Prospectus and any supplements or amendments thereto; (ii)
the preparation, issuance and delivery to the Purchasers of the Purchased
Common Stock (other than transfer taxes); (iii) the reproduction or
printing and mailing in reasonable quantities of the Registration Statement
and amendments thereto, each preliminary prospectus, the Prospectus and any
amendments or supplements thereto, this Agreement, any Blue Sky memoranda
delivered to the Purchasers; (iv) reasonable filing fees and expenses
(including legal fees and disbursements, not in excess of $5,000) incurred
in connection with the qualification of the Purchased Common Stock under
the Blue Sky or securities laws of the various states, and the preparation
of Blue Sky memoranda for the offering; (v) the fees and expenses of the
accountants and the counsel for the Company and (vi) all other costs and
expenses in-
<PAGE>
-7-
cident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section.
(b) The Purchasers will pay (i) the fees and disbursements of their
respective counsel, except as set forth in Section 5(a) above and (ii)
their own out-of-pocket expenditures.
6. Conditions of the Purchasers' Obligations with Respect to Firm Common
Stock. The obligations of the Purchasers to purchase and pay for the Firm Common
Stock shall be subject in their discretion to the accuracy of and compliance in
all material respects with the representations and the warranties of the Company
herein contained as of the date hereof and the Closing Date, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Act or proceedings therefor
initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of
Anderson, Byrd, Richeson, Flaherty & Henrichs, counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The outstanding shares of the Company's common stock have
been duly authorized and issued, are fully paid and non-assessable;
the Purchased Common Stock has been duly authorized, and, when issued
and delivered to and paid for by the Purchasers pursuant to this
Agreement, will be fully paid and non-assessable; and the Purchased
Common Stock conforms as to legal matters in all material respects to
the description thereof contained in or incorporated by reference into
the Prospectus;
(iii) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Common Stock have been obtained; any conditions in
such approvals required to be satisfied prior to the issuance of the
Purchased Common Stock have been duly satisfied; such approvals are in
full force and effect; and no further approval, authorization, consent
or other order of any public board or body in the State of Kansas is
legally required for the issuance, sale and delivery of the Purchased
Common Stock or the execution, delivery and performance by the
<PAGE>
-8-
Company of this Agreement (it being understood that such counsel need
express no opinion as to any approvals which may be required under the
securities acts or Blue Sky laws of said state); and
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of
Spencer, Scott & Dwyer, P.C., counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in the States of Arkansas, Missouri and
Oklahoma, which are the only jurisdictions (other than Kansas) in
which it owns or leases substantial properties or in which the conduct
of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises
which are necessary to authorize it to carry on the utility businesses
in which it is engaged as described in the Prospectus;
(iii) Neither the issuance, sale and delivery of the Purchased
Common Stock nor the execution, delivery and performance by the
Company of this Agreement will conflict with, violate or result in the
breach of any Missouri law or administrative regulation or any court
decree known to such counsel applicable to the Company (it being
understood that such counsel need express no opinion as to matters
subject to the jurisdiction of the Public Service Commission of the
State of Missouri, the Corporation Commission of Oklahoma, the State
Corporation Commission of the State of Kansas or the Arkansas Public
Service Commission or as to the securities or Blue Sky law of any
jurisdiction), conflict with or result in a breach of any of the
terms, conditions or provisions of the Restated Articles of
Incorporation, as amended, or By-Laws, as amended, of the Company or
of any agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or constitute a
default thereunder, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company;
(iv) Relying as to materiality to a large extent upon the
statements and opinions of representatives of the Company, such
counsel have no reason to
<PAGE>
-9-
believe that either the Registration Statement or the Prospectus, or
any amendment or supplement thereto, as of their respective effective
or issue dates, contained any untrue statement of material fact or
omitted to state any material fact necessary to make the statements
therein not misleading; the descriptions in the Registration Statement
and Prospectus of contracts and other documents are accurate and
fairly present the information therein shown; and such counsel do not
know of any legal or governmental proceedings required to be described
in the Prospectus by Item 103 of Regulation S-K under the Act which
are not described as so required, nor of any contracts or documents of
a character required to be described in the Registration Statement or
Prospectus pursuant to Item 11 of Form S-3 or to be filed as exhibits
to the Registration Statement pursuant to Item 601 of Regulation S-K
which are not described and filed as so required; it being understood
that such counsel need express no opinion as to the financial
statements or other financial or statistical information contained in
the Registration Statement or the Prospectus; and
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
In rendering such opinion, Spencer, Scott & Dwyer, P.C. may rely, as to the
incorporation of the Company and all matters governed by Kansas law, upon
the opinion of Anderson, Byrd, Richeson, Flaherty & Henrichs referred to in
paragraph (b) above and, as to all matters covered thereby, upon the
opinion of Brydon, Swearengen & England, Professional Corporation, referred
to in paragraph (d) below .
(d) You shall have received an opinion, dated the Closing Date, of
Brydon, Swearengen & England, Professional Corporation, counsel for the
Company, to the effect that no approval of any governmental regulatory
authority in the State of Arkansas, Missouri or Oklahoma is legally
required for the valid authorization and issuance of the Purchased Common
Stock and the valid sale thereof under this Agreement (it being understood
that such counsel need express no opinion as to any approvals which may be
required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of
Cahill Gordon & Reindel, counsel for the Company, to the effect that:
(i) The Purchased Common Stock has been duly authorized and, when
issued and delivered to and paid for by the Purchasers pursuant to
this Agreement, will be fully paid and non-assessable and conform as
to legal matters in all material respects to the description thereof
contained in or incorporated by reference into the Prospectus;
<PAGE>
-10-
(ii) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Common Stock have been obtained, and such counsel
knows of no approval of any other governmental regulatory body which
is legally required in connection therewith (other than any approvals
required under the securities acts or Blue Sky laws of any
jurisdiction);
(iii) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
and the Prospectus, and each amendment or supplement thereto (except,
in each case, as to the financial statements or other financial or
statistical information included therein, as to which such counsel
need not express an opinion), as of their respective effective or
issue dates, appeared to comply as to form in all material respects
with the requirements of Form S-3, and the applicable Rules and
Regulations; and
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
In rendering such opinion Cahill Gordon & Reindel may rely, as to the
incorporation of the Company and as to all other matters governed by the
laws of the States of Arkansas, Kansas, Missouri and Oklahoma, and covered
by their respective opinions, upon the opinions of Anderson, Byrd,
Richeson, Flaherty & Henrichs; Spencer, Scott & Dwyer, P.C.; and Brydon,
Swearengen & England, Professional Corporation, referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the independent
accountants of the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus, and any
subsequent amendments or supplements thereto, and related matters were
discussed and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus, or any
subsequent amendments or supplements thereto, on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of officers,
counsel and other representatives of the Company), no facts have come to
the attention of such counsel which lead such counsel to believe that
either the Registration Statement or the Prospectus, and any subsequent
amendments or supplements thereto, as of their respective effective or
issue dates,
<PAGE>
-11-
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need make no
comment with respect to the financial statements and other financial and
statistical information included in the Registration Statement or
Prospectus or any such amendments or supplements).
(f) You shall have received an opinion, dated the Closing Date, of
Thompson Coburn LLP, counsel for the Purchasers, to the effect that:
(i) The Purchased Common Stock has been duly authorized and, when
issued and delivered to and paid for by the Purchasers pursuant to
this Agreement, will be fully paid and non-assessable and conform as
to legal matters in all material respects to the description thereof
contained in or incorporated by reference into the Prospectus;
(ii) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Common Stock have been obtained, and such counsel
knows of no approval of any other governmental regulatory body which
is legally required in connection therewith (other than any approvals
required under the securities acts or Blue Sky laws of any
jurisdiction);
(iii) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
and the Prospectus, and each amendment or supplement thereto (except,
in each case, as to the financial statements or other financial or
statistical information included therein, as to which such counsel
need not express an opinion), as of their respective effective or
issue dates, appeared to comply as to form in all material respects
with the requirements of Form S-3, and the applicable Rules and
Regulations; and
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
In rendering such opinion Thompson Coburn LLP may rely, as to the
incorporation of the Company and as to all other matters governed by the
laws of the States of Arkansas, Kansas and Oklahoma, and covered by their
respective opinions, upon the opinions of Anderson, Byrd, Richeson,
Flaherty & Henrichs; Brydon, Swearengen & England, Professional
Corporation; and Spencer, Scott & Dwyer, P.C., referred to above.
<PAGE>
-12-
Thompson Coburn LLP need not express any opinion with respect to the
matters set forth in paragraphs (i), (ii) and (iii) of the opinion of
Spencer, Scott & Dwyer, P.C. referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the independent
accountants of the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus, and any
subsequent amendments or supplements thereto, and related matters were
discussed and reviewed. Such counsel shall also state that, on the basis of
such participation (relying as to materiality to a large extent upon the
opinions of officers, counsel and other representatives of the Company),
but without independently verifying, passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, or any subsequent
amendments or supplements thereto, no facts have come to the attention of
such counsel which lead such counsel to believe that either the
Registration Statement or the Prospectus, and any subsequent amendments or
supplements thereto, as of their respective effective or issue dates,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need make no
comment with respect to the financial statements and other financial and
statistical information included in the Registration Statement or
Prospectus or any such amendments or supplements).
(g) You shall have received a letter or letters from the Company's
independent accountant(s), dated the Closing Date and addressed to you,
confirming that they are independent public accountants within the meaning
of the Act and the Rules and Regulations, and stating in effect that:
(i) In their opinion, the financial statements and schedules
examined by them which are included in the Company's most recent
Annual Report on Form 10-K, which is incorporated by reference in the
Prospectus (the "Form 10-K") comply as to form in all material
respects with the accounting requirements of the Act and the Rules and
Regulations and the Exchange Act and the Exchange Act Rules and
Regulations;
(ii) On the basis of procedures specified in such letter (but not
an examination in accordance with generally accepted auditing
standards), including reading the minutes of meetings of the
stockholders and the Board of Directors of the Company since the end
of the year covered by the Form 10-K as
<PAGE>
-13-
set forth in the minute books through a specified date not more than
five business days prior to the Closing Date, reading the unaudited
interim financial statements of the Company incorporated by reference
in the Prospectus and the latest available unaudited interim financial
statements of the Company, and making inquiries of certain officials
of the Company who have responsibility for financial and accounting
matters, nothing has come to their attention that has caused them to
believe that (1) any unaudited financial statements incorporated by
reference in the Prospectus do not comply as to form in all material
respects with the accounting requirements of the Act and the Rules and
Regulations and the Exchange Act and the Exchange Act Rules and
Regulations; (2) the latest available financial statements, not
incorporated by reference in the Prospectus, have not been prepared on
a basis substantially consistent with that of the audited financial
statements incorporated in the Prospectus; (3) for the period from the
closing date of the latest income statement incorporated by reference
in the Prospectus to the closing date of the latest available income
statement read by them there were any decreases, as compared with the
corresponding period of the previous year, in operating revenues,
operating income or net income; or (4) at a specified date not more
than five business days prior to the Closing Date, there was any
change in the capital stock or long-term debt of the Company or, at
such date, there was any decrease in net assets of the Company as
compared with amounts shown in the latest balance sheet incorporated
by reference in the Prospectus, except in all cases for changes or
decreases which the Prospectus discloses have occurred or may occur,
or which are described in such letter; and
(iii) Certain specified procedures have been applied to certain
financial or other statistical information (to the extent such
information was obtained from the general accounting records of the
Company) set forth or incorporated by reference in the Prospectus and
that such procedures have not revealed any disagreement between the
financial and statistical information so set forth or incorporated and
the underlying general accounting records of the Company, except as
described in such letter.
(h) On the Closing Date there shall have been furnished to you a
certificate, dated the Closing Date, from the Company, signed on behalf of
the Company by the President, or the Vice President-Finance, stating in
effect that to the best knowledge of the officer signing such certificate
and except as may be reflected in or contemplated by the Registration
Statement or stated in such certificate (i) the representations and
warranties of the Company contained in Section 3 of this Agreement are
correct and the Company has complied with all the agreements and satisfied
all the conditions to be performed or satisfied on its part at or prior to
the Closing Date; (ii) no stop order
<PAGE>
-14-
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending,
or, to the knowledge of the signer thereof, are contemplated under the Act;
and (iii) subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, as supplemented or
amended, there has been no material adverse change in the financial
position or results of operations of the Company.
(i) Trading in securities on the New York Stock Exchange shall not
have been suspended nor shall minimum prices have been established on such
Exchange; a banking moratorium shall not have been declared by New York or
Missouri or United States authorities; and there shall not have been an
outbreak of major hostilities between the United States and any foreign
power, or any other new insurrection or armed conflict involving the United
States which, in your reasonable judgment, makes it impracticable to
proceed with the public offering or the delivery of the Purchased Common
Stock on the terms and in the manner contemplated in the Prospectus.
(j) If a public offering of the Purchased Common Stock is to be made,
subsequent to the date of this Agreement and prior to the Closing Date, no
rating of any of the Company's debt securities by any nationally recognized
rating agency shall have been lowered by such agency.
(k) The representations and warranties of the Company herein shall be
true and correct in all material respects as of the Closing Date and all
agreements herein contained to be performed on the part of the Company at
or prior to the Closing Date shall have been so performed.
(l) You shall have been furnished such additional certificates and
other evidence as you or your counsel may reasonably request showing
fulfillment of the conditions contained in this Section 6 and existence of
the facts to which the representations and warranties contained in Section
3 hereof relate.
(m) The New York Stock Exchange, Inc. shall have approved for listing
upon official notice of issuance, the Purchased Common Stock.
7. Indemnification.
(a) The Company will indemnify and hold harmless each Purchaser and each
person, if any, who controls any Purchaser within the meaning of the Act against
the losses, claims, damages or liabilities, joint or several, to which such
Purchaser or such controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or action in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration State-
<PAGE>
-15-
ment, the Prospectus, or any amendment or supplement thereto or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and will reimburse
such Purchaser and each such controlling person for any legal or other expenses
reasonably incurred by such Purchaser or such controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
specifically for use therein. The indemnification obligation contained in this
Section 7 will be in addition to any liability which the Company may otherwise
have.
(b) Each Purchaser will indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of the Act,
against any losses, claims, damages or liabilities to which the Company or any
such director, officer or controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or action
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Purchaser
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action. The indemnification obligation contained in this
Section 7 will be in addition to any liability which the Purchasers may
otherwise have.
In addition to any other information the Purchasers may furnish, the
Purchasers hereby furnish to the Company specifically for use in the Prospectus
the information with respect to the offering of the Purchased Common Stock and
the Purchasers set forth on the cover page and inside cover page of the
Prospectus Supplement and under "Underwriting" or similar caption therein.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemni-
<PAGE>
-16-
fying party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 7. In case any action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel selected
by the indemnifying party and acceptable to the indemnified party (the
indemnified party shall not unreasonably reject such counsel), and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. The indemnified party
shall have the right to employ its counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party has been
authorized by the indemnifying party, (ii) the indemnified party shall have
reasonably concluded that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of the defense of
such action (in which case the indemnifying party shall not have the right to
direct the defense of such action on behalf of the indemnified party) or (iii)
the indemnifying party shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of one
counsel representing all indemnified parties shall be at the expense of the
indemnifying party. An indemnifying party shall not be liable for any settlement
of any action or claim effected without its consent.
8. Contribution. If recovery is not available under the foregoing
indemnification provisions of Section 7 of this Agreement, for any reason other
than as specified therein, the parties entitled to indemnification by the terms
thereof shall be entitled to contribution to liabilities and expenses, except to
the extent that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each party
from the offering of the Purchased Common Stock (taking into account the portion
of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company and the Purchasers agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Purchasers were treated as one entity for such
purpose). No Purchaser or any person controlling such Purchaser shall be
obligated to make contribution hereunder which in the aggregate exceeds the
total public offering price of the Purchased Common Stock purchased by such
Purchaser, less the aggregate amount of any damages which such Purchaser and its
con-
<PAGE>
-17-
trolling persons have otherwise been required to pay in respect of the same
claim or any substantially similar claim.
9. Termination.
(a) This Agreement may be terminated at any time prior to the Closing Date
or, with respect to the Additional Common Stock, the Additional Closing Date, by
the Purchasers by written notice to the Company, if in the reasonable judgment
of the Purchasers it is impracticable to offer for sale or to enforce contracts
made by the Purchasers for the resale of the Firm Common Stock or the Additional
Common Stock, as the case may be, by reason of (i) the Company sustaining a
loss, whether or not insured, by reason of fire, flood, accident or other
calamity, which, in the reasonable opinion of the Purchasers, substantially
affects the value of the properties of the Company or which materially
interferes with the operation of the properties of the Company or which
materially interferes with the operation of the business of the Company, (ii)
trading in securities on the New York Stock Exchange having been suspended or
limited or minimum prices having been established on such Exchange, (iii) a
banking moratorium having been declared by the United States, or by New York or
Missouri state authorities, or (iv) an outbreak of major hostilities between the
United States and any foreign power, or any other new insurrection or armed
conflict involving the United States having occurred.
(b) If this Agreement shall be terminated pursuant to Section 6 or this
Section 9, or if the purchase of the Firm Common Stock or the Additional Common
Stock, if any, by the Purchasers is not consummated because of any refusal,
inability or failure on the part of the Company to comply with any of the terms
or to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform all the obligations under this Agreement, the
Company shall not be liable to the Purchasers for damages arising out of the
transactions covered by this Agreement, but the Company and the Purchasers shall
remain liable to the extent provided in Sections 5(a), 7(a) and 8 hereof.
10. Survival of Indemnities, Representations and Warranties. The respective
indemnities and agreements for contribution of the Company and the Purchasers
and the respective representations and warranties of the Company and the
Purchasers set forth in this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or the
Purchasers or any of their respective officers, directors, partners or any
controlling person, and will survive delivery of and payment for the Purchased
Common Stock or termination of this Agreement.
11. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Firm Common Stock or Additional Common Stock, as the
case may be, hereunder and the aggregate number of shares of Firm Common Stock
or Additional Common Stock, as the case may be, which such defaulting Purchaser
or Purchasers agreed but
<PAGE>
-18-
failed to purchase is equal to or less than 10% of the total number of shares of
Firm Common Stock or Additional Common Stock, as the case may be, you may make
arrangements satisfactory to the Company for the purchase of such Firm Common
Stock or Additional Common Stock, as the case may be, by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date or the Additional Closing Date, as the case may be, the
non-defaulting Purchasers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Firm Common Stock or
Additional Common Stock, as the case may be, which such defaulting Purchasers
agreed but failed to purchase. If any Purchaser or Purchasers so default and the
aggregate amount of Firm Common Stock or Additional Common Stock, as the case
may be, with respect to which such default or defaults occur is more than the
above percentage and arrangements satisfactory to you and the Company for the
purchase of such Firm Common Stock or Additional Common Stock, as the case may
be, by other persons are not made within thirty-six hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in Section 10 and
expect that any default by a Purchaser with respect to the purchase of
Additional Common Stock shall not affect the obligation of the Purchasers to
purchase the Firm Common Stock. In the event that any Purchaser or Purchasers
default in their obligation to purchase Firm Common Stock or Additional Common
Stock, as the case may be, hereunder, the Company may, by prompt written notice
to the non-defaulting Purchasers, postpone the Closing Date for a period of not
more than seven full business days in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents, and the Company will promptly file any amendments to the
Registration Statement or supplements to the Prospectus which may thereby be
made necessary. As used in this Agreement, the term "Purchaser" includes any
person substituted for a Purchaser under this Section. Nothing herein will
relieve a defaulting Purchaser from liability for its default.
12. Parties in Interest. This Agreement shall inure to the benefit of the
Company, the Purchasers, the officers, directors and partners of such parties,
each controlling person referred to in Section 7 hereof, and their respective
successors. Nothing in this Agreement is intended or shall be construed to give
to any other person, firm or corporation (including, without limitation, any
purchaser of the Purchased Common Stock from a Purchaser or any subsequent
holder thereof) any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall not include any
purchaser, as such purchaser, of any Purchased Common Stock from any Purchaser
or any subsequent holder thereof.
This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof, and supersedes any agreement previously
entered into.
<PAGE>
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13. Notices. All communications, terminations and notices hereunder shall
be in writing and, if sent to any Purchaser, shall be mailed, delivered or
telecopied and confirmed to it by letter to the address set forth for such
Purchaser in Schedule A to the Purchase Agreement (or such other place as the
Purchaser may specify in writing); if sent to the Company shall be mailed,
delivered or telecopied and confirmed to the Company at 602 Joplin Street,
Joplin, Missouri 64801 (Attn: Vice President - Finance) telecopier: (417)
625-5153 (or such other place as the Company may specify in writing).
14. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri.
<PAGE>
The Empire District Electric Company
Form of Purchase Agreement
Common Stock
___________________
(Date)
The Empire District Electric Company
602 Joplin Street
Joplin, Missouri 64801
Ladies and Gentlemen:
We refer to the Common Stock, $1.00 par value, of The Empire District
Electric Company (the "Company") covered by Registration Statement No. 333- ,
which became effective on _________________ (the "Registration Statement"). On
the basis of the representations, warranties and agreements contained in this
Agreement, but subject to the terms and conditions herein set forth, the
purchaser or purchasers named in Schedule A hereto (the "Purchasers") agree to
purchase, severally, and the Company agrees to sell to the Purchasers,
severally, the respective principal amounts of the Company's Common Stock
referred to below (the "Firm Common Stock") set forth opposite the name of each
Purchaser on Schedule A hereto. The Company also grants to the Purchasers an
option to purchase _______ additional shares of the Company's Common Stock (the
"Additional Common Stock") on the terms and conditions contained in this
Agreement for the sole purpose of covering over-allotments. The Firm Common
Stock and the Additional Common Stock are collectively referred to as the
"Purchased Common Stock."
The price at which the Purchased Common Stock shall be purchased from the
Company by the Purchasers shall be $______ per share. The initial public
offering price shall be $______ per share. The Purchased Common Stock will be
offered as set forth in the Prospectus Supplement relating to such Purchased
Common Stock.
The Sale of the Purchased Common Stock will take place as follows:
The "Closing Date" (as
defined in Section 2
of the Company's
<PAGE>
-2-
Standard Purchase
Provisions -- Common
Stock) shall be: ______________
The closing of the
purchase and sale of
the Purchased Common
Stock shall take place at: ______________
The purchase price for
the Purchased Common
Stock shall be paid by: ______________
The funds used to pay
for the Purchased Common
Stock shall be: ______________
The Purchased Common
Stock shall be made
available for inspection
and packaging at: ______________
Notice to the Purchasers shall be sent to the following address:
If we are acting as Representative(s) for the several Purchasers named in
Schedule A hereto, we represent that we are authorized to act for such several
Purchasers in connection with this financing, and that, if there are more than
one of us, any action under this Agreement taken by any of us will be binding
upon all the Purchasers.
All of the provisions contained in the document entitled "The Empire
District Electric Company, Standard Purchase Provisions--Common Stock," a copy
of which has been previously furnished to us, are hereby incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
<PAGE>
-3-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Purchasers in
accordance with its terms.
Very truly yours,
[NAME OF PURCHASER]
By:
-----------------------------------------
Name:
Title:
Acting on behalf of and as Representative(s)
of the several Purchasers named in Schedule
A hereto.*
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above written
THE EMPIRE DISTRICT ELECTRIC COMPANY
By: _______________________________
Name:
Title:
- ----------
* To be deleted if the Purchase Agreement is not executed by one or more
Purchasers acting as Representative(s) of the Purchasers for purposes of
this Agreement.
<PAGE>
SCHEDULE A TO PURCHASE AGREEMENT
Principal Amount of
Address and Firm Common Stock
Name Telecopier Number to Be Purchased
____________________
Total $
====================
Exhibit 1(b)
THE EMPIRE DISTRICT ELECTRIC COMPANY
UNSECURED DEBT SECURITIES
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
<PAGE>
THE EMPIRE DISTRICT ELECTRIC COMPANY
STANDARD PURCHASE PROVISIONS -- UNSECURED DEBT SECURITIES
From time to time, The Empire District Electric Company, a Kansas
corporation ("Company"), may enter into purchase agreements that provide for the
sale of a designated series of unsecured debt securities to the purchaser or
purchasers named therein. The standard provisions set forth herein may be
incorporated by reference in any such purchase agreement ("Purchase Agreement").
The Purchase Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as "this Agreement." Unless otherwise
defined herein, terms defined in the Purchase Agreement are used herein as
therein defined.
1. Introductory. The Company proposes to issue and sell from time to time
unsecured debt securities registered under the registration statement referred
to in Section 3(a) ("Debt Securities"). The Debt Securities will be issued under
an Indenture, dated as of September 10, 1999 ("Original Indenture"), by and
between the Company and Norwest Bank Minnesota, National Association, as trustee
("Trustee"), as supplemented and amended, including by a Securities Resolution
(as defined in the Indenture) pertaining to the particular series of Debt
Securities involved in the offering (the Original Indenture as so amended and
supplemented, the "Indenture") and will have varying designations, interest
rates and terms of payment of interest, maturities, redemption and sinking fund
provisions, if any, and other terms, with all of such terms for any particular
series of Debt Securities being determined at the time of sale and being as set
forth in the Purchase Agreement and Securities Resolution relating to such
series of Debt Securities. The Debt Securities referred to in Schedule A of the
Purchase Agreement are hereinafter referred to as the "Purchased Debt
Securities." The firm or firms, as the case may be, which agree to purchase the
Purchased Debt Securities are hereinafter referred to as the "Purchasers" of
such Purchased Debt Securities. The terms "you" and "your" refer to those
Purchasers (or the Purchaser) who sign the Purchase Agreement either on behalf
of themselves (or itself) only or on behalf of the several Purchasers named in
Schedule A thereto, as the case may be. Purchased Debt Securities to be
purchased by Purchasers are herein referred to as "Purchasers' Debt Securities,"
and any Purchased Debt Securities to be purchased pursuant to Delayed Delivery
Contracts (as defined below) as hereinafter provided are herein referred to as
"Contract Debt Securities."
2. Sale and Delivery of the Debt Securities. Subject to the terms and
conditions set forth in this Agreement, the Company will deliver the Purchasers'
Debt Securities to you for the account of the Purchasers, at the place set forth
in the Purchase Agreement against payment of the purchase price therefor by wire
transfer or certified or official bank check or checks in immediately available
funds or clearing house funds payable to the order of
<PAGE>
-2-
the Company, all as set forth in the Purchase Agreement, at the time set forth
in the Purchase Agreement or at such other time not later than seven full
business days thereafter as you and the Company determine, such time being
herein referred to as the "Closing Date." The Company agrees to make available
to you for inspection and packaging at the place set forth in the Purchase
Agreement, at least one full business day prior to the Closing Date, the
Purchasers' Debt Securities so to be delivered in good delivery form and in such
denominations and registered in such names as you shall have requested, all such
requests to have been made in writing at least three full business days prior to
the Closing Date, or if no such request is made, registered in the names of the
several Purchasers as set forth in Schedule A to the Purchase Agreement.
If any Purchase Agreement provides for sales of Purchased Debt Securities
pursuant to delayed delivery contracts, the Company authorizes the Purchasers to
solicit offers to purchase Contract Debt Securities pursuant to delayed delivery
contracts substantially in the form of Schedule I attached hereto (the "Delayed
Delivery Contracts") with such changes therein as the Company may approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies, and educational and charitable institutions. Each Delayed Delivery
Contract shall provide for the purchase and sale of a principal amount of
Contract Debt Securities not less than the amount set forth in the Purchase
Agreement and the aggregate principal amount of all Contract Debt Securities
shall not exceed the amount set forth in the Purchase Agreement. On the Closing
Date, the Company will pay you as compensation, for the accounts of the
Purchasers, the compensation set forth in such Purchase Agreement in respect of
the principal amount of Contract Debt Securities. The Purchasers will not have
any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Debt Securities shall be deducted from the Purchased
Debt Securities to be purchased by the several Purchasers and the aggregate
principal amount of Purchased Debt Securities to be purchased by each Purchaser
shall be reduced pro rata in proportion to the principal amount of Purchased
Debt Securities set forth opposite each Purchaser's name in such Purchase
Agreement, except to the extent that you determine that such reduction shall be
otherwise allocated and so advise the Company.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Purchaser that:
(a) The registration statement referred to in the Purchase Agreement
and relating to the Debt Securities, including a prospectus and all
documents incorporated by reference therein, has been filed on Form S-3
with the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, including the prospectus supplement
with respect to the offering of Purchased Debt
<PAGE>
-3-
Securities referred to in Section 2 (the "Prospectus Supplement") and all
prior amendments and supplements thereto (other than supplements and
amendments relating to securities that are not Purchased Debt Securities),
including all documents filed as a part thereof or incorporated therein
pursuant to Item 12 of Form S-3 (other than the Statement of Eligibility
and Qualification of the Trustee (the "Form T-1")), is hereinafter referred
to as the "Registration Statement" and such prospectus, as so amended or
supplemented (including all material so incorporated by reference therein)
in the form first filed by the Company pursuant to Rule 424(b) under the
Act is hereinafter referred to as the "Prospectus."
(b) The Registration Statement and the Prospectus conform in all
respects to the requirements of the Securities Act of 1933, as amended
("Act"), the Trust Indenture Act of 1939, as amended ("Trust Indenture
Act"), and the pertinent published rules and regulations ("Rules and
Regulations") of the Commission, and none of such documents includes any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements or
omissions in either of such documents based upon written information
furnished to the Company by any Purchaser specifically for use therein. The
documents incorporated by reference in the Registration Statement or the
Prospectus pursuant to Item 12 of Form S-3 of the Act, at the time they
were filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the pertinent published rules and regulations
thereunder (the "Exchange Act Rules and Regulations") and any additional
documents deemed to be incorporated by reference in the Prospectus will,
when they are filed with the Commission, comply in all material respects
with the requirements of the Exchange Act and the Exchange Act Rules and
Regulations and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
4. Agreements of the Company. The Company agrees with the several
Purchasers that:
(a) The Company will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus with respect to any
Purchased Debt Securities, and will furnish you a copy thereof prior to the
filing thereof with the Commission.
(b) The Company will furnish to you copies of the registration
statement relating to the Debt Securities as originally filed and all
amendments thereto (at least
<PAGE>
-4-
one of which will be signed and will include all exhibits except those
incorporated by reference to previous filings with the Commission), each
related prospectus, the Prospectus, and all amendments and supplements to
such documents (except supplements relating to Debt Securities that are not
Purchased Debt Securities), in each case as soon as available and in such
quantities as you reasonably request for the purposes contemplated by the
Act.
(c) If at any time when a prospectus relating to the Purchased Debt
Securities is required to be delivered under the Act or the Rules and
Regulations, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which made, not misleading, or
if it is necessary at any time to amend or supplement the Prospectus to
comply with the Act or the Rules and Regulations, the Company will promptly
notify the Purchasers and promptly prepare and file with the Commission an
amendment or supplement to the Registration Statement or any appropriate
filing pursuant to Section 13 or 14 of the Exchange Act which will correct
such statement or omission or an amendment which will effect such
compliance, and deliver in connection therewith, such Prospectus or
amendments or supplements to the Purchasers in such quantity as may be
necessary to permit compliance with the requirements of the Act and the
Rules and Regulations, provided that the Company shall be so obligated only
so long as the Company is notified of unsold allotments (failure by the
Purchasers to so notify the Company cancels the Company's obligation under
this Section 4(c)), and provided further that any such Prospectus or
amendment or supplement required later than nine months from the date
hereof shall be furnished at the Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers in taking such
action as may be necessary to qualify the Purchased Debt Securities for
offering and sale under the securities laws of any state or jurisdiction of
the United States as the Purchasers may reasonably request and will use its
best efforts to continue such qualification in effect so long as required
for the distribution of the Purchased Debt Securities; provided, however,
that the Company shall not be required to qualify as a foreign corporation,
or to file a general consent to service of process, in any such state or
jurisdiction or to comply with any other requirement deemed by the Company
to be unduly burdensome.
(e) The Company will make generally available to its security holders
as soon as practicable an earning statement (as contemplated by Rule 158
under the Act) covering a period of twelve months after the effective date
of the Registration Statement.
<PAGE>
-5-
(f) For a period of three years, the Company will furnish to you
copies of any report or definitive proxy statement which the Company shall
file with the Commission under the Exchange Act, and copies of all reports
and communications which shall be sent to stockholders generally, at or
about the time such reports and other information are first furnished to
stockholders generally.
(g) The Company will apply the net proceeds from the offering of the
Purchased Debt Securities as set forth under the caption "Use of Proceeds"
in the Prospectus Supplement.
(h) If a public offering of the Purchased Debt Securities is to be
made, the Company will not offer or sell any of its other debt securities
which are substantially similar to the Purchased Debt Securities prior to
ten business days after the Closing Date without the consent of the
Purchasers.
5. Expenses. The Company and the Purchasers agree as follows:
(a) The Company, whether or not the transactions contemplated
hereunder are consummated, will (except as provided in Section 4(c) hereof)
pay all costs and expenses incident to the performance of its obligations
hereunder, including without limitation, all costs and expenses in
connection with (i) the preparation and filing of the Registration
Statement, Prospectus and Indenture and any supplements or amendments
thereto; (ii) the preparation, issuance and delivery to the Purchasers of
the Purchasers' Debt Securities and the preparation, issuance and delivery
to the purchasers thereof of the Contract Debt Securities; (iii) the
reproduction or printing and mailing in reasonable quantities of the
Registration Statement, amendments thereto, each preliminary prospectus,
the Prospectus and any amendments or supplements thereto, this Agreement,
any Blue Sky memoranda and legal investment survey delivered to the
Purchasers; (iv) reasonable filing fees and expenses (including legal fees
and disbursements, not in excess of $5,000) incurred in connection with the
qualification of the Purchased Debt Securities under the Blue Sky or
securities laws of the various states, and the preparation of Blue Sky
memoranda and legal investment survey for the offering; (v) the fees and
expenses of the accountants and the counsel for the Company; (vi) the fees
of the Trustee and any agent of the Trustee (including legal fees and
disbursements, if any, of counsel to the Trustee) and (vii) all other costs
and expenses incident to the performance of its obligations hereunder which
are not otherwise specifically provided for in this Section.
(b) The Purchasers will pay (i) the fees and disbursements of their
respective counsel, except as set forth in Section 5(a) above and (ii)
their own out-of-pocket expenditures.
<PAGE>
-6-
6. Conditions of the Purchasers' Obligations. The obligations of the
Purchasers to purchase and pay for the Purchasers' Debt Securities shall be
subject in their discretion to the accuracy of and compliance in all material
respects with the representations and the warranties of the Company herein
contained as of the date hereof and the Closing Date, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Act or proceedings therefor
initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of
Anderson, Byrd, Richeson, Flaherty & Henrichs, counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The Purchasers' Debt Securities have been duly authorized,
executed, authenticated, issued and delivered by the Company and
constitute, and the Contract Debt Securities have been duly authorized
and when executed and authenticated in accordance with the Indenture
and delivered to and paid for by the purchasers pursuant to Delayed
Delivery Contracts will constitute, valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding instrument
of the Company enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors' rights or
by general principles of equity;
(iv) The Indenture and the Purchased Debt Securities conform as
to legal matters in all material respects to the descriptions thereof
contained in the Prospectus;
(v) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Pur-
<PAGE>
-7-
chased Debt Securities have been obtained; any conditions in such
approvals required to be satisfied prior to the issuance of the
Purchased Debt Securities have been duly satisfied; such approvals are
in full force and effect; and no further approval, authorization,
consent or other order of any public board or body in the State of
Kansas is legally required for the issuance, sale and delivery of the
Purchased Debt Securities or the execution, delivery and performance
by the Company of the Securities Resolution, the Purchased Debt
Securities, any Delayed Delivery Contracts or this Agreement (it being
understood that such counsel need express no opinion as to any
approvals which may be required under the securities acts or Blue Sky
laws of said state); and
(vi) This Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of
Spencer, Scott & Dwyer, P.C., counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in the States of Arkansas, Missouri and
Oklahoma, which are the only jurisdictions (other than Kansas) in
which it owns or leases substantial properties or in which the conduct
of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises
which are necessary to authorize it to carry on the utility businesses
in which it is engaged as described in the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
(iv) Neither the issuance, sale and delivery of the Purchased
Debt Securities nor the execution, delivery and performance by the
Company of this Agreement, any Delayed Delivery Contract, the
Securities Resolution or the Purchased Debt Securities will conflict
with, violate or result in breach of any Missouri law or
administrative regulation or any court decree known to such counsel
applicable to the Company (it being understood that such counsel need
express no opinion as to matters subject to the jurisdiction of the
Public Service Commission of the State of Missouri, the Corporation
Commission of Oklahoma, the State Corporation Commission of the State
of Kansas or the
<PAGE>
-8-
Arkansas Public Service Commission or as to the securities or Blue Sky
law of any jurisdiction), conflict with or result in a breach of any
of the terms, conditions or provisions of the Restated Articles of
Incorporation, as amended, or By-Laws, as amended, of the Company or
of any agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or constitute a
default thereunder, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company; and
(v) Relying as to materiality to a large extent upon the
statements and opinions of representatives of the Company, such
counsel have no reason to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto,
as of their respective effective or issue dates, contained any untrue
statement of material fact or omitted to state any material fact
necessary to make the statements therein not misleading; the
descriptions in the Registration Statement and Prospectus of contracts
and other documents are accurate and fairly present the information
therein shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the Prospectus by
Item 103 of Regulation S-K under the Act which are not described as so
required, nor of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus pursuant to
Item 11 of Form S-3 or to be filed as exhibits to the Registration
Statement pursuant to Item 601 of Regulation S-K which are not
described and filed as so required; it being understood that such
counsel need express no opinion as to the financial statements or
other financial or statistical information contained in the
Registration Statement or the Prospectus.
In rendering such opinion, Spencer, Scott & Dwyer, P.C. may rely, as to the
incorporation of the Company and all matters governed by Kansas law, upon
the opinion of Anderson, Byrd, Richeson, Flaherty & Henrichs referred to in
paragraph (b) above and, as to all matters covered thereby, upon the
opinion of Brydon, Swearengen & England, Professional Corporation referred
to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of
Brydon, Swearengen & England, Professional Corporation, counsel for the
Company, to the effect that no approval, authorization, consent or other
order of any public board or body in the States of Missouri, Oklahoma or
Arkansas is legally required for the issuance, sale and delivery of the
Purchased Debt Securities or the execution, delivery and performance by the
Company of the Securities Resolution, the Purchased Debt Securities, this
Agreement or any Delayed Delivery Contract (it being understood that such
coun-
<PAGE>
-9-
sel need express no opinion as to any approvals which may be required under
the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of
Cahill Gordon & Reindel, counsel for the Company, to the effect that:
(i) The Purchasers' Debt Securities have been duly authorized,
executed, authenticated, issued and delivered by the Company and
constitute, and the Contract Debt Securities have been duly authorized
and when executed and authenticated in accordance with the Indenture
and delivered to and paid for by the purchasers pursuant to Delayed
Delivery Contracts will constitute, valid and legally binding
obligations of the Company entitled to the benefits and security
provided by the Indenture except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or by general
principles of equity;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding instrument
of the Company enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors' rights or
by general principles of equity;
(iii) The Indenture and the Purchased Debt Securities conform as
to legal matters in all material respects to the descriptions thereof
contained in the Prospectus;
(iv) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Debt Securities have been obtained, and such counsel
knows of no approval of any other governmental regulatory body which
is legally required in connection therewith (other than any approvals
required under the securities acts or Blue Sky laws of any
jurisdiction);
(v) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
and the Prospectus, and each amendment or supplement thereto (except,
in each case, as to the financial statements or other financial or
statistical information included therein and the Form T-1 of the
Trustee, as to which such counsel need not express an opinion), as of
their
<PAGE>
-10-
respective effective or issue dates, appeared to comply as to form in
all material respects with the requirements of Form S-3, the Trust
Indenture Act and the applicable Rules and Regulations; and
(vi) This Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
In rendering such opinion Cahill Gordon & Reindel may rely, as to the
incorporation of the Company and as to all other matters governed by the
laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered
by their respective opinions, upon the opinions of Anderson, Byrd,
Richeson, Flaherty & Henrichs; Brydon, Swearengen & England, Professional
Corporation; and Spencer, Scott & Dwyer, P.C. referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the independent
accountants of the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus, and any
subsequent amendments or supplements thereto, and related matters were
discussed and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus, or any
subsequent amendments or supplements thereto, on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of officers,
counsel and other representatives of the Company), no facts have come to
the attention of such counsel which lead such counsel to believe that
either the Registration Statement or the Prospectus, and any subsequent
amendments or supplements thereto, as of their respective effective or
issue dates, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel need make
no comment with respect to the financial statements and other financial and
statistical information included in the Registration Statement or
Prospectus or any such amendments or supplements or the Form T-1 of the
Trustee).
(f) You shall have received an opinion, dated the Closing Date, of
Thompson Coburn LLP, counsel for the Purchasers, to the effect that:
(i) The Purchasers' Debt Securities have been duly authorized,
executed, authenticated, issued and delivered by the Company and
constitute, and the Contract Debt Securities have been duly authorized
and when executed and authenticated in accordance with the Indenture
and delivered to and paid for by the purchasers pursuant to Delayed
Delivery Contracts will constitute, valid
<PAGE>
-11-
and legally binding obligations of the Company entitled to the
benefits and security provided by the Indenture except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights or by
general principles of equity;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding instrument
of the Company enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors' rights or
by general principles of equity;
(iii) The Indenture and the Purchased Debt Securities conform as
to legal matters in all material respects to the descriptions thereof
contained in the Prospectus;
(iv) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Debt Securities have been obtained, and such counsel
knows of no approval of any other governmental regulatory body which
is legally required in connection therewith (other than any approvals
required under the securities acts or Blue Sky laws of any
jurisdiction);
(v) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
and the Prospectus, and each amendment or supplement thereto (except,
in each case, as to the financial statements or other financial or
statistical information included therein and the Form T-1 of the
Trustee, as to which such counsel need not express an opinion), as of
their respective effective or issue dates, appeared to comply as to
form in all material respects with the requirements of Form S-3, the
Trust Indenture Act and the applicable Rules and Regulations; and
(vi) This Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
In rendering such opinion Thompson Coburn LLP may rely, as to the
incorporation of the Company and as to all other matters governed by the
laws of the States of Kansas, Arkansas and Oklahoma, and covered by their
respective opinions, upon the opinions of Anderson, Byrd, Richeson,
Flaherty & Henrichs; Brydon, Swearengen & England,
<PAGE>
-12-
Professional Corporation; and Spencer, Scott & Dwyer, P.C. referred to
above. Thompson Coburn LLP need not express any opinion with respect to the
matters set forth in paragraphs (i), (ii) and (iv) of the opinion of
Spencer, Scott & Dwyer, P.C. referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the independent
accountants of the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus, and any
subsequent amendments or supplements thereto, and related matters were
discussed and reviewed. Such counsel shall also state that, on the basis of
such participation (relying as to materiality to a large extent upon the
opinions of officers, counsel and other representatives of the Company),
but without independently verifying, passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, or any subsequent
amendments or supplements thereto, no facts have come to the attention of
such counsel which lead such counsel to believe that either the
Registration Statement or the Prospectus, and any subsequent amendments or
supplements thereto, as of their respective effective or issue dates,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need make no
comment with respect to the financial statements and other financial and
statistical information included in the Registration Statement or
Prospectus or any such amendments or supplements or the Form T-1 of the
Trustee).
(g) You shall have received a letter or letters from the Company's
independent accountant(s), dated the Closing Date and addressed to you,
confirming that they are independent public accountants within the meaning
of the Act and the Rules and Regulations, and stating in effect that:
(i) In their opinion, the financial statements and schedules
examined by them which are included in the Company's most recent
Annual Report on Form 10-K, which is incorporated by reference in the
Prospectus (the "Form 10-K") comply as to form in all material
respects with the accounting requirements of the Act and the Rules and
Regulations and the Exchange Act and the Exchange Act Rules and
Regulations;
(ii) On the basis of procedures specified in such letter(s) (but
not an examination in accordance with generally accepted auditing
standards), including reading the minutes of meetings of the
stockholders and the Board of
<PAGE>
-13-
Directors of the Company since the end of the year covered by the Form
10-K as set forth in the minute books through a specified date not
more than five days prior to the Closing Date, reading the unaudited
interim financial statements of the Company incorporated by reference
in the Prospectus and the latest available unaudited interim financial
statements of the Company, and making inquiries of certain officials
of the Company who have responsibility for financial and accounting
matters, nothing has come to their attention that has caused them to
believe that (1) any unaudited financial statements incorporated by
reference in the Prospectus do not comply as to form in all material
respects with the accounting requirements of the Act and the Rules and
Regulations and the Exchange Act and the Exchange Act Rules and
Regulations; (2) the latest available financial statements, not
incorporated by reference in the Prospectus, have not been prepared on
a basis substantially consistent with that of the audited financial
statements incorporated in the Prospectus; (3) for the period from the
closing date of the latest income statement incorporated by reference
in the Prospectus to the closing date of the latest available income
statement read by them there were any decreases, as compared with the
corresponding period of the previous year, in operating revenues,
operating income, net income or in ratio of earnings to fixed charges;
or (4) at a specified date not more than five business days prior to
the Closing Date, there was any change in the capital stock or
long-term debt of the Company or, at such date, there was any decrease
in net assets of the Company as compared with amounts shown in the
latest balance sheet incorporated by reference in the Prospectus,
except in all cases for changes or decreases which the Prospectus
discloses have occurred or may occur, or which are described in such
letter; and
(iii) Certain specified procedures have been applied to certain
financial or other statistical information (to the extent such
information was obtained from the general accounting records of the
Company) set forth or incorporated by reference in the Prospectus and
that such procedures have not revealed any disagreement between the
financial and statistical information so set forth or incorporated and
the underlying general accounting records of the Company, except as
described in such letter.
(h) On the Closing Date there shall have been furnished to you a
certificate, dated the Closing Date, from the Company, signed on behalf of
the Company by the President, or the Vice President - Finance, stating in
effect that to the best knowledge of the officer signing such certificate
and except as may be reflected in or contemplated by the Registration
Statement or stated in such certificate (i) the representations and
warranties of the Company contained in Section 3 of this Agreement are
correct and the Company has complied with all the agreements and satisfied
all the conditions
<PAGE>
-14-
to be performed or satisfied on its part at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending, or, to the knowledge of the signer thereof, are
contemplated under the Act; and (iii) subsequent to the respective dates as
of which information is given in the Registration Statement and Prospectus,
as supplemented or amended, there has been no material adverse change in
the financial position or results of operations of the Company.
(i) Trading in securities on the New York Stock Exchange shall not
have been suspended nor shall minimum prices have been established on such
Exchange; a banking moratorium shall not have been declared by New York or
Missouri or United States authorities; and there shall not have been an
outbreak of major hostilities between the United States and any foreign
power, or any other new insurrection or armed conflict involving the United
States which, in your reasonable judgment, makes it impracticable to
proceed with the public offering or the delivery of the Purchasers' Debt
Securities on the terms and in the manner contemplated in the Prospectus.
(j) If a public offering of the Purchasers' Debt Securities is to be
made, subsequent to the date of this Agreement and prior to the Closing
Date, no rating of any of the Company's debt securities by any nationally
recognized rating agency shall have been lowered by such agency.
(k) The representations and warranties of the Company herein shall be
true and correct in all material respects as of the Closing Date and all
agreements herein contained to be performed on the part of the Company at
or prior to the Closing Date shall have been so performed.
(l) You shall have been furnished such additional certificates and
other evidence as you or your counsel may reasonably request showing
fulfillment of the conditions contained in this Section 6 and existence of
the facts to which the representations and warranties contained in Section
3 hereof relate.
(m) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Debt Securities arranged by the Purchasers
have been approved by the Company.
7. Indemnification.
(a) The Company will indemnify and hold harmless each Purchaser and each
person, if any, who controls any Purchaser within the meaning of the Act against
the losses, claims, damages or liabilities, joint or several, to which such
Purchaser or such controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims,
<PAGE>
-15-
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto or any related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and will reimburse such Purchaser and each such controlling person
for any legal or other expenses reasonably incurred by such Purchaser or such
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Purchaser specifically for use therein. The indemnification
obligation contained in this Section 7 will be in addition to any liability
which the Company may otherwise have.
(b) Each Purchaser will indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of the Act,
against any losses, claims, damages or liabilities to which the Company or any
such director, officer or controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or action
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Purchaser
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action. The indemnification obligation contained in this
Section 7 will be in addition to any liability which the Purchasers may
otherwise have.
In addition to any other information the Purchasers may furnish, the
Purchasers hereby furnish to the Company specifically for use in the Prospectus
the information with respect to the offering of the Purchased Debt Securities
and the Purchasers set forth on the cover page and inside cover page of the
Prospectus Supplement and under "Underwriting" or similar caption therein.
<PAGE>
-16-
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 7. In case any action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel selected by the indemnifying party and
acceptable to the indemnified party (the indemnified party shall not
unreasonably reject such counsel), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party has been authorized by the indemnifying party, (ii) the
indemnified party shall have reasonably concluded that there may be a conflict
of interest between the indemnifying party and the indemnified party in the
conduct of the defense of such action (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact have
employed counsel to assume the defense of such action, in each of which cases
the fees and expenses of one counsel representing all indemnified parties shall
be at the expense of the indemnifying party. An indemnifying party shall not be
liable for any settlement of any action or claim effected without its consent.
8. Contribution. If recovery is not available under the foregoing
indemnification provisions of Section 7 of this Agreement, for any reason other
than as specified therein, the parties entitled to indemnification by the terms
thereof shall be entitled to contribution to liabilities and expenses, except to
the extent that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each party
from the offering of the Purchased Debt Securities (taking into account the
portion of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company and the Purchasers agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Purchasers were treated as one entity for such
purpose). No Purchaser or any person controlling such Purchaser shall be
obligated to make contribution hereunder which in the ag-
<PAGE>
-17-
gregate exceeds the total public offering price of the Purchasers' Debt
Securities purchased by such Purchaser and any Contract Debt Securities, less
the aggregate amount of any damages which such Purchaser and its controlling
persons have otherwise been required to pay in respect of the same claim or any
substantially similar claim.
9. Termination.
(a) This Agreement may be terminated at any time prior to the Closing Date
by the Purchasers by written notice to the Company, if in the reasonable
judgment of the Purchasers it is impracticable to offer for sale or to enforce
contracts made by the Purchasers for the resale of the Purchasers' Debt
Securities by reason of (i) the Company sustaining a loss, whether or not
insured, by reason of fire, flood, accident or other calamity, which, in the
reasonable opinion of the Purchasers, substantially affects the value of the
properties of the Company or which materially interferes with the operation of
the properties of the Company or which materially interferes with the operation
of the business of the Company, (ii) trading in securities on the New York Stock
Exchange having been suspended or limited or minimum prices having been
established on such Exchange, (iii) a banking moratorium having been declared by
the United States, or by New York or Missouri state authorities, or (iv) an
outbreak of major hostilities between the United States and any foreign power,
or any other new insurrection or armed conflict involving the United States
having occurred.
(b) If this Agreement shall be terminated pursuant to Section 6 or this
Section 9, or if the purchase of the Purchasers' Debt Securities by the
Purchasers is not consummated because of any refusal, inability or failure on
the part of the Company to comply with any of the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable
to perform all the obligations under this Agreement, the Company shall not be
liable to the Purchasers for damages arising out of the transactions covered by
this Agreement, but the Company and the Purchasers shall remain liable to the
extent provided in Sections 5(a), 7(a) and 8 hereof.
10. Survival of Indemnities, Representations and Warranties. The respective
indemnities and agreements for contribution of the Company and the Purchasers
and the respective representations and warranties of the Company and the
Purchasers set forth in this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or the
Purchasers or any of their respective officers, directors, partners or any
controlling person, and will survive delivery of and payment for the Purchased
Debt Securities or termination of this Agreement.
11. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Purchasers' Debt Securities hereunder and the aggregate
principal amount of Purchasers' Debt Securities which such defaulting Purchaser
or Purchasers agreed but failed to purchase is 10% of the principal amount of
Purchasers' Debt Securities or less,
<PAGE>
-18-
you may make arrangements satisfactory to the Company for the purchase of such
Purchasers' Debt Securities by other persons, including any of the Purchasers,
but if no such arrangements are made by the Closing Date, the non-defaulting
Purchasers shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Purchasers' Debt Securities which such
defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate principal amount of Purchasers' Debt
Securities with respect to which such default or defaults occur is more than the
above percentage and arrangements satisfactory to you and the Company for the
purchase of such Purchasers' Debt Securities by other persons are not made
within thirty-six hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Purchaser or the Company,
except as provided in Section 10. In the event that any Purchaser or Purchasers
default in their obligation to purchase Purchasers' Debt Securities hereunder,
the Company may, by prompt written notice to the non-defaulting Purchasers,
postpone the Closing Date for a period of not more than seven full business days
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus or in any other documents, and the
Company will promptly file any amendments to the Registration Statement or
supplements to the Prospectus which may thereby be made necessary. As used in
this Agreement, the term "Purchaser" includes any person substituted for a
Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser
from liability for its default.
12. Parties in Interest. This Agreement shall inure to the benefit of the
Company, the Purchasers, the officers, directors and partners of such parties,
each controlling person referred to in Section 7 hereof, and their respective
successors. Nothing in this Agreement is intended or shall be construed to give
to any other person, firm or corporation (including, without limitation, any
purchaser of the Purchasers' Debt Securities from a Purchaser or any subsequent
holder thereof or any purchaser of any Contract Debt Securities or any
subsequent holder thereof) any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall not include any
purchaser, as such purchaser, of any Purchased Debt Securities from any
Purchaser or any subsequent holder thereof or any purchaser, as such purchaser,
of any Contract Debt Securities or any subsequent holder thereof.
This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof, and supersedes any agreement previously
entered into.
13. Notices. All communications, terminations and notices hereunder shall
be in writing and, if sent to any Purchaser, shall be mailed, delivered or
telecopied and confirmed to it by letter to the address set forth for such
Purchaser in Schedule A to the Purchase Agreement (or such other place as the
Purchaser may specify in writing); if sent to the Com-
<PAGE>
-19-
pany shall be mailed, delivered or telecopied and confirmed to the Company at
602 Joplin Street, Joplin, Missouri 64801, telecopier no. (417) 625-5153 (Attn:
Vice President - Finance) (or such other place as the Company may specify in
writing).
14. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri.
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
Dated:
THE EMPIRE DISTRICT ELECTRIC COMPANY
602 Joplin Street
Joplin, Missouri 64801
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from The Empire District Electric
Company (the "Company"), and the Company agrees to sell to the undersigned,
$_________________
principal amount of the Company's [state title of issue] (the "Debt Securities")
offered by the Company's Prospectus dated ________ and a Prospectus Supplement
dated __________, receipt of copies of which is hereby acknowledged, at a
purchase price of __% of the principal amount thereof plus accrued interest and
on the further terms and conditions set forth in this contract.
The undersigned agrees to purchase such Debt Securities in the principal
amounts and on the delivery dates (the "Delivery Dates") set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
---- ------ -------------
- ---------------- $--------------- ----------------
- ---------------- $--------------- ----------------
- ---------------- $--------------- ----------------
Payment for the Debt Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or bank cashier's check in [same day or New York Clearing House funds]
at [_________] (or at such other place as the undersigned and the Company shall
agree) at 11:00 A.M., New York City Time, on such Delivery Date upon issuance
and delivery to the undersigned of the Debt Securities to
<PAGE>
-2-
be purchased by the undersigned on such Delivery Date in such authorized
denominations and, unless otherwise provided herein, registered in such names as
the undersigned may designate by written or telegraphic communications addressed
to the Company not less than five full business days prior to such Delivery
Date.
The obligation of the Company to sell and deliver, and of the undersigned
to take delivery of and make payment for, Debt Securities on each Delivery Date
shall be subject to the conditions that (1) the purchase of Debt Securities to
be made by the undersigned shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which the undersigned is subject, (2) the sale
of the Debt Securities by the Company pursuant to this contract shall not at the
time of delivery be prohibited under the laws of any jurisdiction to which the
Company is subject and (3) the Company shall have sold and delivered to the
Purchasers such principal amount of the Purchased Debt Securities as is to be
sold and delivered to them. In the event that Debt Securities are not sold to
the undersigned because one of the foregoing conditions is not met, the Company
shall not be liable to the undersigned for damages arising out of the
transactions covered by this contract.
Promptly after completion of the sale and delivery to the Purchasers, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by copies of the opinions of counsel for the
Company delivered to the Purchasers.
Failure to take delivery of and make payment for Debt Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
The undersigned represents and warrants that (a) as of the date of this
contract, the undersigned is not prohibited under the laws of the jurisdictions
to which the undersigned is subject from purchasing the Debt Securities hereby
agreed to be purchased and (b) the undersigned does not contemplate selling the
Debt Securities which it has agreed to purchase hereunder prior to the Delivery
Date therefore.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other. This contract shall be
governed by and construed in accordance with the laws of the State of Missouri.
This contract may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
It is understood that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If the contract is acceptable to the
Company, it is requested that the Com-
<PAGE>
-3-
pany sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned when such
counterpart is so signed.
Yours very truly,
________________________________
By ____________________________
________________________________
________________________________
Address
Accepted, as of the date first above written
The Empire District Electric Company
By_________________________________
<PAGE>
-4-
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
<PAGE>
The Empire District Electric Company
Form of Purchase Agreement
Unsecured Debt Securities
_____________________
(Date)
The Empire District Electric Company
602 Joplin Street
Joplin, Missouri 64801
Ladies and Gentlemen:
We refer to the unsecured debt securities of The Empire District Electric
Company (the "Company") covered by Registration Statement No. 333- , which
became effective on _________________ (the "Registration Statement"). On the
basis of the representations, warranties and agreements contained in this
Agreement, but subject to the terms and conditions herein set forth, the
purchaser or purchasers named in Schedule A hereto (the "Purchasers") agree to
purchase, severally, and the Company agrees to sell to the Purchasers,
severally, the respective principal amounts of the Company's unsecured debt
securities referred to below (the "Purchased Debt Securities") set forth
opposite the name of each Purchaser on Schedule A hereto.
The price at which the Purchased Debt Securities shall be purchased from
the Company by the Purchasers shall be ______% plus accrued interest, if any,
from ____________. The initial public offering price shall be _____% plus
accrued interest, if any, from ______________. The Purchased Debt Securities
will be offered as set forth in the Prospectus Supplement relating to such
Purchased Debt Securities.
The Purchased Debt Securities will have the following terms:
Title of Debt Securities: ______________
Interest Rate: ___% per annum
Interest Payment Dates: ______________
<PAGE>
-2-
Maturity: ______________
Redemption Provisions: ______________
Sinking Fund: ______________
Conversion Provisions: ______________
The "Closing Date" (as
defined in Section 2
of the Company's
Standard Purchase
Provisions -- Unsecured
Debt Securities) shall be: ______________
The closing of the
purchase and sale of
the Purchased Debt Securities
shall take place at: ______________
The purchase price for
the Purchased Debt Securities
shall be paid by: ______________
The funds used to pay
for the Purchased Debt
Securities shall be: ______________
The Purchased Debt Securities
shall be made available for
inspection and packaging at: ______________
Other: ______________
Delayed Delivery
Contracts: [Authorized]/[Not authorized]
[Delivery Date ______________
<PAGE>
-3-
Minimum principal
amount of Purchased
Debt Securities to be
sold pursuant to any
Delayed Delivery Contract: ______________
Maximum aggregate
principal amount of
Purchased Debt Securities
to be sold pursuant to all
Delayed Delivery Contracts: ______________
Compensation to
Purchasers: ______________]*
Notice to the Purchasers shall be sent to the following address:
If we are acting as Representative(s) for the several Purchasers named in
Schedule A hereto, we represent that we are authorized to act for such several
Purchasers in connection with this financing, and that, if there are more than
one of us, any action under this Agreement taken by any of us will be binding
upon all the Purchasers.
All of the provisions contained in the document entitled "The Empire
District Electric Company, Standard Purchase Provisions--Unsecured Debt
Securities," a copy of which has been previously furnished to us, are hereby
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein.
- ----------
* To be used if Delayed Delivery Contracts are authorized.
<PAGE>
-4-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Purchasers in
accordance with its terms.
Very truly yours,
[NAME OF PURCHASER]
By:
--------------------------------------
Name:
Title:
Acting on behalf of and as Representative(s)
of the several Purchasers named in
Schedule A hereto.*
- ----------
* To be deleted if the Purchase Agreement is not executed by one or more
Purchasers acting as Representative(s) of the Purchasers for purposes of
this Agreement.
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above written
THE EMPIRE DISTRICT ELECTRIC COMPANY
By: _______________________________
Name:
Title:
<PAGE>
SCHEDULE A TO PURCHASE AGREEMENT
Principal Amount
of Purchased Debt
Address and Securities to Be
Name Telecopier Number Purchased
-------------------
Total $
===================
Exhibit 1(c)
THE EMPIRE DISTRICT ELECTRIC COMPANY
FIRST MORTGAGE BONDS
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
<PAGE>
THE EMPIRE DISTRICT ELECTRIC COMPANY
STANDARD PURCHASE PROVISIONS -- FIRST MORTGAGE BONDS
From time to time, The Empire District Electric Company, a Kansas
corporation ("Company"), may enter into purchase agreements that provide for the
sale of a designated series of First Mortgage Bonds to the purchaser or
purchasers named therein. The standard provisions set forth herein may be
incorporated by reference in any such purchase agreement ("Purchase Agreement").
The Purchase Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as "this Agreement." Unless otherwise
defined herein, terms defined in the Purchase Agreement are used herein as
therein defined.
1. Introductory. The Company proposes to issue and sell from time to time
First Mortgage Bonds registered under the registration statement referred to in
Section 3(a) ("Bonds"). The Bonds will be issued under an Indenture of Mortgage
and Deed of Trust, dated as of September 1, 1944 ("Original Mortgage"), by and
between the Company and Harris Trust and Savings Bank and State Street Bank and
Trust Company of Missouri, N.A. (successor to The Joplin National Bank and Trust
Company), as trustees ("Trustees"), as supplemented and amended, including by a
supplemental indenture ("Supplemental Indenture") pertaining to the particular
series of Bonds involved in the offering (the Original Mortgage as so amended
and supplemented, the "Indenture") and will have varying designations, interest
rates and terms of payment of interest, maturities, redemption and sinking fund
provisions, if any, and other terms, with all of such terms for any particular
series of Bonds being determined at the time of sale and being as set forth in
the Purchase Agreement and Supplemental Indenture relating to such series of
Bonds. The Bonds referred to in Schedule A of the Purchase Agreement are
hereinafter referred to as the "Purchased Bonds." The firm or firms, as the case
may be, which agree to purchase the Purchased Bonds are hereinafter referred to
as the "Purchasers" of such Purchased Bonds. The terms "you" and "your" refer to
those Purchasers (or the Purchaser) who sign the Purchase Agreement either on
behalf of themselves (or itself) only or on behalf of the several Purchasers
named in Schedule A thereto, as the case may be. Purchased Bonds to be purchased
by Purchasers are herein referred to as "Purchasers' Bonds," and any Purchased
Bonds to be purchased pursuant to Delayed Delivery Contracts (as defined below)
as hereinafter provided are herein referred to as "Contract Bonds."
2. Sale and Delivery of the Bonds. Subject to the terms and conditions set
forth in this Agreement, the Company will deliver the Purchasers' Bonds to you
for the account of the Purchasers, at the place set forth in the Purchase
Agreement against payment of the purchase price therefor by wire transfer or
certified or official bank check or checks in immediately available funds or
clearing house funds payable to the order of the Company, all
<PAGE>
-2-
as set forth in the Purchase Agreement, at the time set forth in the Purchase
Agreement or at such other time not later than seven full business days
thereafter as you and the Company determine, such time being herein referred to
as the "Closing Date." The Company agrees to make available to you for
inspection and packaging at the place set forth in the Purchase Agreement, at
least one full business day prior to the Closing Date, the Purchasers' Bonds so
to be delivered in good delivery form and in such denominations and registered
in such names as you shall have requested, all such requests to have been made
in writing at least three full business days prior to the Closing Date, or if no
such request is made, registered in the names of the several Purchasers as set
forth in Schedule A to the Purchase Agreement.
If any Purchase Agreement provides for sales of Purchased Bonds pursuant to
delayed delivery contracts, the Company authorizes the Purchasers to solicit
offers to purchase Contract Bonds pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto (the "Delayed Delivery
Contracts") with such changes therein as the Company may approve. Delayed
Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies, and
educational and charitable institutions. Each Delayed Delivery Contract shall
provide for the purchase and sale of a principal amount of Contract Bonds not
less than the amount set forth in the Purchase Agreement and the aggregate
principal amount of all Contract Bonds shall not exceed the amount set forth in
the Purchase Agreement. On the Closing Date, the Company will pay you as
compensation, for the accounts of the Purchasers, the compensation set forth in
such Purchase Agreement in respect of the principal amount of Contract Bonds.
The Purchasers will not have any responsibility in respect of the validity or
the performance of Delayed Delivery Contracts. If the Company executes and
delivers Delayed Delivery Contracts, the Contract Bonds shall be deducted from
the Purchased Bonds to be purchased by the several Purchasers and the aggregate
principal amount of Purchased Bonds to be purchased by each Purchaser shall be
reduced pro rata in proportion to the principal amount of Purchased Bonds set
forth opposite each Purchaser's name in such Purchase Agreement, except to the
extent that you determine that such reduction shall be otherwise allocated and
so advise the Company.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Purchaser that:
(a) The registration statement referred to in the Purchase Agreement
and relating to the Bonds, including a prospectus and all documents
incorporated by reference therein, has been filed on Form S-3 with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, including the prospectus supplement with
respect to the offering of Purchased Bonds referred to in Section 2 (the
"Prospectus Supplement") and all prior amendments and supplements thereto
(other than supplements and amendments relating to securities that are not
Pur-
<PAGE>
-3-
chased Bonds), including all documents filed as a part thereof or
incorporated therein pursuant to Item 12 of Form S-3 (other than the
Statements of Eligibility and Qualification of the Trustees (the "Forms
T-1")), is hereinafter referred to as the "Registration Statement" and such
prospectus, as so amended or supplemented (including all material so
incorporated by reference therein) in the form first filed by the Company
pursuant to Rule 424(b) under the Act is hereinafter referred to as the
"Prospectus."
(b) The Registration Statement and the Prospectus conform in all
respects to the requirements of the Securities Act of 1933, as amended
("Act"), the Trust Indenture Act of 1939, as amended ("Trust Indenture
Act"), and the pertinent published rules and regulations ("Rules and
Regulations") of the Commission, and none of such documents includes any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements or
omissions in either of such documents based upon written information
furnished to the Company by any Purchaser specifically for use therein. The
documents incorporated by reference in the Registration Statement or the
Prospectus pursuant to Item 12 of Form S-3 of the Act, at the time they
were filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the pertinent published rules and regulations
thereunder (the "Exchange Act Rules and Regulations") and any additional
documents deemed to be incorporated by reference in the Prospectus will,
when they are filed with the Commission, comply in all material respects
with the requirements of the Exchange Act and the Exchange Act Rules and
Regulations and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
4. Agreements of the Company. The Company agrees with the several
Purchasers that:
(a) The Company will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus with respect to any
Purchased Bonds, and will furnish you a copy thereof prior to the filing
thereof with the Commission.
(b) The Company will furnish to you copies of the registration
statement relating to the Bonds as originally filed and all amendments
thereto (at least one of which will be signed and will include all exhibits
except those incorporated by reference to previous filings with the
Commission), each related prospectus, the Prospectus, and all amendments
and supplements to such documents (except supplements re-
<PAGE>
-4-
lating to Bonds that are not Purchased Bonds), in each case as soon as
available and in such quantities as you reasonably request for the purposes
contemplated by the Act.
(c) If at any time when a prospectus relating to the Purchased Bonds
is required to be delivered under the Act or the Rules and Regulations, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact, or omit
to state a material fact necessary to make the statements therein, in light
of the circumstances under which made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with
the Act or the Rules and Regulations, the Company will promptly notify the
Purchasers and promptly prepare and file with the Commission an amendment
or supplement to the Registration Statement or any appropriate filing
pursuant to Section 13 or 14 of the Exchange Act which will correct such
statement or omission or an amendment which will effect such compliance,
and deliver in connection therewith, such Prospectus or amendments or
supplements to the Purchasers in such quantity as may be necessary to
permit compliance with the requirements of the Act and the Rules and
Regulations, provided that the Company shall be so obligated only so long
as the Company is notified of unsold allotments (failure by the Purchasers
to so notify the Company cancels the Company's obligation under this
Section 4(c)), and provided further that any such Prospectus or amendment
or supplement required later than nine months from the date hereof shall be
furnished at the Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers in taking such
action as may be necessary to qualify the Purchased Bonds for offering and
sale under the securities laws of any state or jurisdiction of the United
States as the Purchasers may reasonably request and will use its best
efforts to continue such qualification in effect so long as required for
the distribution of the Purchased Bonds; provided, however, that the
Company shall not be required to qualify as a foreign corporation, or to
file a general consent to service of process, in any such state or
jurisdiction or to comply with any other requirement deemed by the Company
to be unduly burdensome.
(e) The Company will make generally available to its security holders
as soon as practicable an earning statement (as contemplated by Rule 158
under the Act) covering a period of twelve months after the effective date
of the Registration Statement.
(f) For a period of three years, the Company will furnish to you
copies of any report or definitive proxy statement which the Company shall
file with the Commission under the Exchange Act, and copies of all reports
and communications which shall be sent to stockholders generally, at or
about the time such reports and other information are first furnished to
stockholders generally.
<PAGE>
-5-
(g) The Company will apply the net proceeds from the offering of the
Purchased Bonds as set forth under the caption "Use of Proceeds" in the
Prospectus Supplement.
(h) The Company will record and file the Supplemental Indenture
pertaining to the Purchased Bonds in each place in which such recording or
filing is required to protect and preserve the lien of the Indenture and
will pay all taxes and recording fees required to be paid with respect to
the execution, recording and filing of the Supplemental Indenture and the
issuance of the Purchased Bonds.
(i) If a public offering of the Purchased Bonds is to be made, the
Company will not offer or sell any of its other debt securities which are
substantially similar to the Purchased Bonds prior to ten business days
after the Closing Date without the consent of the Purchasers.
5. Expenses. The Company and the Purchasers agree as follows:
(a) The Company, whether or not the transactions contemplated
hereunder are consummated, will (except as provided in Section 4(c) hereof)
pay all costs and expenses incident to the performance of its obligations
hereunder, including without limitation, all costs and expenses in
connection with (i) the preparation and filing of the Registration
Statement, Prospectus and Indenture and any supplements or amendments
thereto; (ii) the preparation, issuance and delivery to the Purchasers of
the Purchasers' Bonds and the preparation, issuance and delivery to the
purchasers thereof of the Contract Bonds; (iii) the reproduction or
printing and mailing in reasonable quantities of the Registration
Statement, the Supplemental Indenture, amendments thereto, each preliminary
prospectus, the Prospectus and any amendments or supplements thereto, this
Agreement, any Blue Sky memoranda and legal investment survey delivered to
the Purchasers; (iv) reasonable filing fees and expenses (including legal
fees and disbursements, not in excess of $5,000) incurred in connection
with the qualification of the Purchased Bonds under the Blue Sky or
securities laws of the various states, and the preparation of Blue Sky
memoranda and legal investment survey for the offering; (v) the fees and
expenses of the accountants and the counsel for the Company; (vi) the fees
of the Trustees and any agent of the Trustees (including legal fees and
disbursements, if any, of counsel to the Trustees) and (vii) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section.
(b) The Purchasers will pay (i) the fees and disbursements of their
respective counsel, except as set forth in Section 5(a) above and (ii)
their own out-of-pocket expenditures.
<PAGE>
-6-
6. Conditions of the Purchasers' Obligations. The obligations of the
Purchasers to purchase and pay for the Purchasers' Bonds shall be subject in
their discretion to the accuracy of and compliance in all material respects with
the representations and the warranties of the Company herein contained as of the
date hereof and the Closing Date, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Act or proceedings therefor
initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of
Anderson, Byrd, Richeson, Flaherty & Henrichs, counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Bonds have been obtained; any conditions in such
approvals required to be satisfied prior to the issuance of the
Purchased Bonds have been duly satisfied; such approvals are in full
force and effect; and no further approval, authorization, consent or
other order of any public board or body in the State of Kansas is
legally required for the issuance, sale and delivery of the Purchased
Bonds or the execution, delivery and performance by the Company of the
Supplemental Indenture, the Purchased Bonds, any Delayed Delivery
Contracts or this Agreement (it being understood that such counsel
need express no opinion as to any approvals which may be required
under the securities acts or Blue Sky laws of said state); and
(iii) This Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of
Spencer, Scott & Dwyer, P.C., counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in the States of Arkansas,
<PAGE>
-7-
Missouri and Oklahoma, which are the only jurisdictions (other than
Kansas) in which it owns or leases substantial properties or in which
the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises
which are necessary to authorize it to carry on the utility businesses
in which it is engaged as described in the Prospectus;
(iii) The Purchasers' Bonds have been duly authorized, executed,
authenticated, issued and delivered by the Company and constitute, and
the Contract Bonds have been duly authorized and when executed and
authenticated in accordance with the Indenture and delivered to and
paid for by the purchasers pursuant to Delayed Delivery Contracts will
constitute, valid and legally binding obligations of the Company
entitled to the benefits and security provided by the Indenture except
as the same may be limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting the enforcement of creditors'
rights or the enforcement of the security provided by the Indenture or
by general principles of equity and, (A) as to the Company's interest
in the Iatan Generating Station, except as the same may be limited by
the terms of the Iatan Station Ownership Agreement, dated July 31,
1978, among Kansas City Power & Light Company, St. Joseph Light &
Power Company and the Company and of any other agreements by the
Company relating to its interest in such station and (B) as to the
Company's interest in the State Line Combined Cycle Generating
Facility, except as the same may be limited by the terms of the
Agreement for the Construction, Ownership and Operation of State Line
Combined Cycle Generating Facility, dated July 26, 1999, as amended,
among the Company, as an owner, Westar Generating, Inc., as an owner
and the Company, as agent and of any other agreements by the Company
relating to its interest in such facility;
(iv) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding instrument
of the Company enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors' rights or
the enforcement of the security provided by the Indenture or by
general principles of equity and, (A) as to the Company's interest in
the Iatan Generating Station, except as the same may be limited by the
terms of the Iatan Station Ownership Agreement, dated July 31, 1978,
among Kansas City Power & Light Company, St. Joseph Light & Power
Company and the Company and of any other agreements by the Company
relating to its interest
<PAGE>
-8-
in such station and (B) as to the Company's interest in the State Line
Combined Cycle Generating Facility, except as the same may be limited
by the terms of the Agreement for the Construction, Ownership and
Operation of State Line Combined Cycle Generating Facility, dated July
26, 1999, as amended, among the Company, as an owner, Westar
Generating, Inc., as an owner and the Company, as agent and of any
other agreements by the Company relating to its interest in such
facility;
(v) The Indenture constitutes a direct and valid mortgage lien
upon substantially all of the properties and assets of the Company
specifically or generally described or referred to in the Indenture as
being subject to the lien thereof (except such property as may have
been disposed of, or released from the lien thereof, in accordance
with the terms thereof) and will create a similar lien upon all
properties and assets acquired by the Company after the date hereof
located in counties in which the Indenture has been recorded and
required to be subjected to the lien of the Indenture when acquired by
the Company; the Indenture (except as otherwise herein stated with
respect to the Supplemental Indenture) has been duly recorded as a
mortgage of real estate or recorded or filed as a chattel mortgage in
each county or recording or filing district in which any of the
properties or assets of the Company subject to the lien of the
Indenture are situated; the Supplemental Indenture has been filed for
record as a mortgage of real estate in Cherokee County, Kansas and in
Jasper, Lawrence, and Newton Counties, Missouri (and specifying any
other recording or filing at the Closing Date) and, upon the
Supplemental Indenture being duly filed and recorded as a mortgage of
real estate in all other counties in the States of Arkansas, Kansas
and Missouri in which real estate subject to the lien of the Indenture
is located and being filed as a chattel mortgage in the office of the
Secretary of State of each of the States of Kansas, Missouri and
Oklahoma, and upon the filing of an appropriate amendment to a
financing statement in the office of the Secretary of State of the
State of Arkansas, no further recording or filing and, under present
law, no periodic or other re-recording or refiling of the Indenture or
any other instrument will be required in order to preserve and protect
the lien of the Indenture either as a mortgage on real estate or as a
chattel mortgage except that if the Company shall hereafter acquire
property in any county in which the Indenture shall not be of record,
further recording or filing may be required, depending upon the law of
the State in which such county is located;
(vi) All taxes and recording fees required by the laws of the
States of Arkansas, Kansas, Missouri and Oklahoma to be paid with
respect to the execution, recording or filing of the Indenture and the
issuance of the Purchased
<PAGE>
-9-
Bonds have been paid except such fees as are not payable until the
filing for record of the Supplemental Indenture in the offices
mentioned in the next preceding paragraph in which it has not been
filed on the Closing Date, provision for the payment of which fees has
been made by the Company, and upon payment of such fees by the Company
no taxes or recording fees required by the laws of the States of
Arkansas, Kansas, Missouri and Oklahoma with respect to the execution,
recording or filing of the Indenture or the issuance of the Purchased
Bonds will be payable;
(vii) The Company has good and marketable title in fee simple to
substantially all real and fixed properties and good and marketable
title to substantially all other properties and assets specifically or
generally described or referred to in the Indenture as being subject
to the lien thereof (except such property as may have been disposed
of, or released from the lien thereof, in accordance with the terms
thereof), in each case free and clear of all liens, charges and
encumbrances prior to the lien of the Indenture except permitted
encumbrances as defined in the Indenture (it being understood that
such foregoing opinion may be based (1) on searches of available
public records performed within five business days prior to the
Closing Date and (2) upon a certificate of the Company); and the
descriptions of all such properties and assets contained in the
granting clauses of the Indenture are correct and adequate for the
purposes of the Indenture;
(viii) The Indenture and the Purchased Bonds conform as to legal
matters in all material respects to the descriptions thereof contained
in the Prospectus;
(ix) This Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
(x) Neither the issuance, sale and delivery of the Purchased
Bonds nor the execution, delivery and performance by the Company of
this Agreement, any Delayed Delivery Contract, the Supplemental
Indenture or the Purchased Bonds will conflict with, violate or result
in breach of any Missouri law or administrative regulation or any
court decree known to such counsel applicable to the Company (it being
understood that such counsel need express no opinion as to matters
subject to the jurisdiction of the Public Service Commission of the
State of Missouri, the Corporation Commission of Oklahoma, the State
Corporation Commission of the State of Kansas or the Arkansas Public
Service Commission or as to the securities or Blue Sky law of any
jurisdiction), conflict with or result in a breach of any of the
terms, conditions or provisions
<PAGE>
-10-
of the Restated Articles of Incorporation, as amended, or By-Laws, as
amended, of the Company or of any agreement or instrument known to
such counsel to which the Company is a party or by which the Company
is bound or constitute a default thereunder, or result in the creation
or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company (other
than the lien of the Indenture); and
(xi) Relying as to materiality to a large extent upon the
statements and opinions of representatives of the Company, such
counsel have no reason to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto,
as of their respective effective or issue dates, contained any untrue
statement of material fact or omitted to state any material fact
necessary to make the statements therein not misleading; the
descriptions in the Registration Statement and Prospectus of contracts
and other documents are accurate and fairly present the information
therein shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the Prospectus by
Item 103 of Regulation S-K under the Act which are not described as so
required, nor of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus pursuant to
Item 11 of Form S-3 or to be filed as exhibits to the Registration
Statement pursuant to Item 601 of Regulation S-K which are not
described and filed as so required; it being understood that such
counsel need express no opinion as to the financial statements or
other financial or statistical information contained in the
Registration Statement or the Prospectus.
In rendering such opinion, Spencer, Scott & Dwyer, P.C. may rely, as to the
incorporation of the Company and all matters governed by Kansas law, upon
the opinion of Anderson, Byrd, Richeson, Flaherty & Henrichs referred to in
paragraph (b) above and, as to all matters covered thereby, upon the
opinion of Brydon, Swearengen & England, Professional Corporation referred
to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of
Brydon, Swearengen & England, Professional Corporation, counsel for the
Company, to the effect that all approvals of the Public Service Commission
of the State of Missouri, the Corporation Commission of Oklahoma and the
Arkansas Public Service Commission which are required for the issuance,
sale and delivery of the Purchased Bonds have been obtained; any conditions
in such approvals required to be satisfied prior to the issuance of the
Purchased Bonds have been duly satisfied; such approvals are in full force
and effect; and no further approval, authorization, consent or other order
of any public board or body in the States of Missouri, Oklahoma or Arkansas
is legally required for the issuance, sale and delivery of the Purchased
Bonds or the execution, de-
<PAGE>
-11-
livery and performance by the Company of the Supplemental Indenture, the
Purchased Bonds, this Agreement or any Delayed Delivery Contract (it being
understood that such counsel need express no opinion as to any approvals
which may be required under the securities acts or Blue Sky laws of any
jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of
Cahill Gordon & Reindel, counsel for the Company, to the effect that:
(i) The Purchasers' Bonds have been duly authorized, executed,
authenticated, issued and delivered by the Company and constitute, and
the Contract Bonds have been duly authorized and when executed and
authenticated in accordance with the Indenture and delivered to and
paid for by the purchasers pursuant to Delayed Delivery Contracts will
constitute, valid and legally binding obligations of the Company
entitled to the benefits and security provided by the Indenture except
as the same may be limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting the enforcement of creditors'
rights or the enforcement of the security provided by the Indenture or
by general principles of equity and, (A) as to the Company's interest
in the Iatan Generating Station, except as the same may be limited by
the terms of the Iatan Station Ownership Agreement, dated July 31,
1978, among Kansas City Power & Light Company, St. Joseph Light &
Power Company and the Company and of any other agreements by the
Company relating to its interest in such station and (B) as to the
Company's interest in the State Line Combined Cycle Generating
Facility, except as the same may be limited by the terms of the
Agreement for the Construction, Ownership and Operation of State Line
Combined Cycle Generating Facility, dated July 26, 1999, as amended,
among the Company, as an owner, Westar Generating, Inc., as an owner
and the Company, as agent and of any other agreements by the Company
relating to its interest in such facility;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding instrument
of the Company enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors' rights or
the enforcement of the security provided by the Indenture or by
general principles of equity and, (A) as to the Company's interest in
the Iatan Generating Station, except as the same may be limited by the
terms of the Iatan Station Ownership Agreement, dated July 31, 1978,
among Kansas City Power & Light Company, St. Joseph Light & Power
Company and the Company and of any other agreements by the Company
relating to its interest
<PAGE>
-12-
in such station and (B) as to the Company's interest in the State Line
Combined Cycle Generating Facility, except as the same may be limited
by the terms of the Agreement for the Construction, Ownership and
Operation of State Line Combined Cycle Generating Facility, dated July
26, 1999, as amended, among the Company, as an owner, Westar
Generating, Inc., as an owner and the Company, as agent and of any
other agreements by the Company relating to its interest in such
facility;
(iii) The Indenture and the Purchased Bonds conform as to legal
matters in all material respects to the descriptions thereof contained
in the Prospectus;
(iv) All approvals of the State Corporation Commission of the
State of Kansas, the Public Service Commission of the State of
Missouri, the Corporation Commission of Oklahoma and the Arkansas
Public Service Commission which are required for the issuance, sale
and delivery of the Purchased Bonds have been obtained, and such
counsel knows of no approval of any other governmental regulatory body
which is legally required in connection therewith (other than any
approvals required under the securities acts or Blue Sky laws of any
jurisdiction);
(v) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
and the Prospectus, and each amendment or supplement thereto (except,
in each case, as to the financial statements or other financial or
statistical information included therein and the Forms T-1 of the
Trustees, as to which such counsel need not express an opinion), as of
their respective effective or issue dates, appeared to comply as to
form in all material respects with the requirements of Form S-3, the
Trust Indenture Act and the applicable Rules and Regulations; and
(vi) This Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
In rendering such opinion Cahill Gordon & Reindel may rely, as to the
incorporation of the Company and as to all other matters governed by the
laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered
by their respective opinions, upon the opinions of Anderson, Byrd,
Richeson, Flaherty & Henrichs; Brydon, Swearengen & England, Professional
Corporation; and Spencer, Scott & Dwyer, P.C. referred to above.
<PAGE>
-13-
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the independent
accountants of the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus, and any
subsequent amendments or supplements thereto, and related matters were
discussed and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus, or any
subsequent amendments or supplements thereto, on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of officers,
counsel and other representatives of the Company), no facts have come to
the attention of such counsel which lead such counsel to believe that
either the Registration Statement or the Prospectus, and any subsequent
amendments or supplements thereto, as of their respective effective or
issue dates, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel need make
no comment with respect to the financial statements and other financial and
statistical information included in the Registration Statement or
Prospectus or any such amendments or supplements or the Forms T-1 of the
Trustees).
(f) You shall have received an opinion, dated the Closing Date, of
Thompson Coburn LLP, counsel for the Purchasers, to the effect that:
(i) The Purchasers' Bonds have been duly authorized, executed,
authenticated, issued and delivered by the Company and constitute, and
the Contract Bonds have been duly authorized and when executed and
authenticated in accordance with the Indenture and delivered to and
paid for by the purchasers pursuant to Delayed Delivery Contracts will
constitute, valid and legally binding obligations of the Company
entitled to the benefits and security provided by the Indenture except
as the same may be limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting the enforcement of creditors'
rights or the enforcement of the security provided by the Indenture or
by general principles of equity and, (A) as to the Company's interest
in the Iatan Generating Station, except as the same may be limited by
the terms of the Iatan Station Ownership Agreement, dated July 31,
1978, among Kansas City Power & Light Company, St. Joseph Light &
Power Company and the Company and of any other agreements by the
Company relating to its interest in such station and (B) as to the
Company's interest in the State Line Combined Cycle Generating
Facility, except as the same may be limited by the terms of the
Agreement for the Construction, Ownership and Operation of State Line
Combined Cycle Generating Facility, dated July 26, 1999, as amended,
among
<PAGE>
-14-
the Company, as an owner, Westar Generating, Inc., as an owner and the
Company, as agent and of any other agreements by the Company relating
to its interest in such facility;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding instrument
of the Company enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors' rights or
the enforcement of the security provided by the Indenture or by
general principles of equity and, (A) as to the Company's interest in
the Iatan Generating Station, except as the same may be limited by the
terms of the Iatan Station Ownership Agreement, dated July 31, 1978,
among Kansas City Power & Light Company, St. Joseph Light & Power
Company and the Company and of any other agreements by the Company
relating to its interest in such station and (B) as to the Company's
interest in the State Line Combined Cycle Generating Facility, except
as the same may be limited by the terms of the Agreement for the
Construction, Ownership and Operation of State Line Combined Cycle
Generating Facility, dated July 26, 1999, as amended, among the
Company, as an owner, Westar Generating, Inc., as an owner and the
Company, as agent and of any other agreements by the Company relating
to its interest in such facility;
(iii) The Indenture and the Purchased Bonds conform as to legal
matters in all material respects to the descriptions thereof contained
in the Prospectus;
(iv) All approvals of the State Corporation Commission of the
State of Kansas, the Public Service Commission of the State of
Missouri, the Corporation Commission of Oklahoma and the Arkansas
Public Service Commission which are required for the issuance, sale
and delivery of the Purchased Bonds have been obtained, and such
counsel knows of no approval of any other governmental regulatory body
which is legally required in connection therewith (other than any
approvals required under the securities acts or Blue Sky laws of any
jurisdiction);
(v) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
and the Prospectus, and each amendment
<PAGE>
-15-
or supplement thereto (except, in each case, as to the financial
statements or other financial or statistical information included
therein and the Forms T-1 of the Trustees, as to which such counsel
need not express an opinion), as of their respective effective or
issue dates, appeared to comply as to form in all material respects
with the requirements of Form S-3, the Trust Indenture Act and the
applicable Rules and Regulations; and
(vi) This Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
In rendering such opinion Thompson Coburn LLP may rely, as to the
incorporation of the Company and as to all other matters governed by the
laws of the States of Kansas, Arkansas and Oklahoma, and covered by their
respective opinions, upon the opinions of Anderson, Byrd, Richeson,
Flaherty & Henrichs; Brydon, Swearengen & England, Professional
Corporation; and Spencer, Scott & Dwyer, P.C. referred to above. Thompson
Coburn LLP need not express any opinion with respect to the matters set
forth in paragraphs (i), (ii), (v), (vi), (vii) and (x) of the opinion of
Spencer, Scott & Dwyer, P.C. referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the independent
accountants of the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus, and any
subsequent amendments or supplements thereto, and related matters were
discussed and reviewed. Such counsel shall also state that, on the basis of
such participation (relying as to materiality to a large extent upon the
opinions of officers, counsel and other representatives of the Company),
but without independently verifying, passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, or any subsequent
amendments or supplements thereto, no facts have come to the attention of
such counsel which lead such counsel to believe that either the
Registration Statement or the Prospectus, and any subsequent amendments or
supplements thereto, as of their respective effective or issue dates,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need make no
comment with respect to the financial statements and other financial and
statistical information included in the Registration Statement or
Prospectus or any such amendments or supplements or the Forms T-1 of the
Trustees).
<PAGE>
-16-
(g) You shall have received a letter or letters from the Company's
independent accountant(s), dated the Closing Date and addressed to you,
confirming that they are independent public accountants within the meaning
of the Act and the Rules and Regulations, and stating in effect that:
(i) In their opinion, the financial statements and schedules
examined by them which are included in the Company's most recent
Annual Report on Form 10-K, which is incorporated by reference in the
Prospectus (the "Form 10-K") comply as to form in all material
respects with the accounting requirements of the Act and the Rules and
Regulations and the Exchange Act and the Exchange Act Rules and
Regulations;
(ii) On the basis of procedures specified in such letter(s) (but
not an examination in accordance with generally accepted auditing
standards), including reading the minutes of meetings of the
stockholders and the Board of Directors of the Company since the end
of the year covered by the Form 10-K as set forth in the minute books
through a specified date not more than five days prior to the Closing
Date, reading the unaudited interim financial statements of the
Company incorporated by reference in the Prospectus and the latest
available unaudited interim financial statements of the Company, and
making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters, nothing has come
to their attention that has caused them to believe that (1) any
unaudited financial statements incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
accounting requirements of the Act and the Rules and Regulations and
the Exchange Act and the Exchange Act Rules and Regulations; (2) the
latest available financial statements, not incorporated by reference
in the Prospectus, have not been prepared on a basis substantially
consistent with that of the audited financial statements incorporated
in the Prospectus; (3) for the period from the closing date of the
latest income statement incorporated by reference in the Prospectus to
the closing date of the latest available income statement read by them
there were any decreases, as compared with the corresponding period of
the previous year, in operating revenues, operating income, net income
or in ratio of earnings to fixed charges; or (4) at a specified date
not more than five business days prior to the Closing Date, there was
any change in the capital stock or long-term debt of the Company or,
at such date, there was any decrease in net assets of the Company as
compared with amounts shown in the latest balance sheet incorporated
by reference in the Prospectus, except in all cases for changes or
decreases which the Prospectus discloses have occurred or may occur,
or which are described in such letter; and
<PAGE>
-17-
(iii) Certain specified procedures have been applied to certain
financial or other statistical information (to the extent such
information was obtained from the general accounting records of the
Company) set forth or incorporated by reference in the Prospectus and
that such procedures have not revealed any disagreement between the
financial and statistical information so set forth or incorporated and
the underlying general accounting records of the Company, except as
described in such letter.
(h) On the Closing Date there shall have been furnished to you a
certificate, dated the Closing Date, from the Company, signed on behalf of
the Company by the President, or the Vice President - Finance, stating in
effect that to the best knowledge of the officer signing such certificate
and except as may be reflected in or contemplated by the Registration
Statement or stated in such certificate (i) the representations and
warranties of the Company contained in Section 3 of this Agreement are
correct and the Company has complied with all the agreements and satisfied
all the conditions to be performed or satisfied on its part at or prior to
the Closing Date; (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending, or, to the knowledge of the signer
thereof, are contemplated under the Act; and (iii) subsequent to the
respective dates as of which information is given in the Registration
Statement and Prospectus, as supplemented or amended, there has been no
material adverse change in the financial position or results of operations
of the Company.
(i) Trading in securities on the New York Stock Exchange shall not
have been suspended nor shall minimum prices have been established on such
Exchange; a banking moratorium shall not have been declared by New York or
Missouri or United States authorities; and there shall not have been an
outbreak of major hostilities between the United States and any foreign
power, or any other new insurrection or armed conflict involving the United
States which, in your reasonable judgment, makes it impracticable to
proceed with the public offering or the delivery of the Purchasers' Bonds
on the terms and in the manner contemplated in the Prospectus.
(j) If a public offering of the Purchasers' Bonds is to be made,
subsequent to the date of this Agreement and prior to the Closing Date, no
rating of any of the Company's debt securities by any nationally recognized
rating agency shall have been lowered by such agency.
(k) The representations and warranties of the Company herein shall be
true and correct in all material respects as of the Closing Date and all
agreements herein contained to be performed on the part of the Company at
or prior to the Closing Date shall have been so performed.
<PAGE>
-18-
(l) You shall have been furnished such additional certificates and
other evidence as you or your counsel may reasonably request showing
fulfillment of the conditions contained in this Section 6 and existence of
the facts to which the representations and warranties contained in Section
3 hereof relate.
(m) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Bonds arranged by the Purchasers have been
approved by the Company.
7. Indemnification.
(a) The Company will indemnify and hold harmless each Purchaser and each
person, if any, who controls any Purchaser within the meaning of the Act against
the losses, claims, damages or liabilities, joint or several, to which such
Purchaser or such controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and will reimburse
such Purchaser and each such controlling person for any legal or other expenses
reasonably incurred by such Purchaser or such controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
specifically for use therein. The indemnification obligation contained in this
Section 7 will be in addition to any liability which the Company may otherwise
have.
(b) Each Purchaser will indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of the Act,
against any losses, claims, damages or liabilities to which the Company or any
such director, officer or controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or action
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or al-
<PAGE>
-19-
leged untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company by such
Purchaser specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action. The indemnification obligation contained in
this Section 7 will be in addition to any liability which the Purchasers may
otherwise have.
In addition to any other information the Purchasers may furnish, the
Purchasers hereby furnish to the Company specifically for use in the Prospectus
the information with respect to the offering of the Purchased Bonds and the
Purchasers set forth on the cover page and inside cover page of the Prospectus
Supplement and under "Underwriting" or similar caption therein.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 7. In case any action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel selected by the indemnifying party and
acceptable to the indemnified party (the indemnified party shall not
unreasonably reject such counsel), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party has been authorized by the indemnifying party, (ii) the
indemnified party shall have reasonably concluded that there may be a conflict
of interest between the indemnifying party and the indemnified party in the
conduct of the defense of such action (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact have
employed counsel to assume the defense of such action, in each of which cases
the fees and expenses of one counsel representing all indemnified parties shall
be at the expense of the indemnifying party. An indemnifying party shall not be
liable for any settlement of any action or claim effected without its consent.
<PAGE>
-20-
8. Contribution. If recovery is not available under the foregoing
indemnification provisions of Section 7 of this Agreement, for any reason other
than as specified therein, the parties entitled to indemnification by the terms
thereof shall be entitled to contribution to liabilities and expenses, except to
the extent that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each party
from the offering of the Purchased Bonds (taking into account the portion of the
proceeds of the offering realized by each), the parties' relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission, and
any other equitable considerations appropriate under the circumstances. The
Company and the Purchasers agree that it would not be equitable if the amount of
such contribution were determined by pro rata or per capita allocation (even if
the Purchasers were treated as one entity for such purpose). No Purchaser or any
person controlling such Purchaser shall be obligated to make contribution
hereunder which in the aggregate exceeds the total public offering price of the
Purchasers' Bonds purchased by such Purchaser and any Contract Bonds, less the
aggregate amount of any damages which such Purchaser and its controlling persons
have otherwise been required to pay in respect of the same claim or any
substantially similar claim.
9. Termination.
(a) This Agreement may be terminated at any time prior to the Closing Date
by the Purchasers by written notice to the Company, if in the reasonable
judgment of the Purchasers it is impracticable to offer for sale or to enforce
contracts made by the Purchasers for the resale of the Purchasers' Bonds by
reason of (i) the Company sustaining a loss, whether or not insured, by reason
of fire, flood, accident or other calamity, which, in the reasonable opinion of
the Purchasers, substantially affects the value of the properties of the Company
or which materially interferes with the operation of the properties of the
Company or which materially interferes with the operation of the business of the
Company, (ii) trading in securities on the New York Stock Exchange having been
suspended or limited or minimum prices having been established on such Exchange,
(iii) a banking moratorium having been declared by the United States, or by New
York or Missouri state authorities, or (iv) an outbreak of major hostilities
between the United States and any foreign power, or any other new insurrection
or armed conflict involving the United States having occurred.
(b) If this Agreement shall be terminated pursuant to Section 6 or this
Section 9, or if the purchase of the Purchasers' Bonds by the Purchasers is not
consummated because of any refusal, inability or failure on the part of the
Company to comply with any of the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company shall be unable to perform all
the obligations under this Agreement, the Company shall not be liable to the
Purchasers for damages arising out of the transactions covered by this
Agreement,
<PAGE>
-21-
but the Company and the Purchasers shall remain liable to the extent provided in
Sections 5(a), 7(a) and 8 hereof.
10. Survival of Indemnities, Representations and Warranties. The respective
indemnities and agreements for contribution of the Company and the Purchasers
and the respective representations and warranties of the Company and the
Purchasers set forth in this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or the
Purchasers or any of their respective officers, directors, partners or any
controlling person, and will survive delivery of and payment for the Purchased
Bonds or termination of this Agreement.
11. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Purchasers' Bonds hereunder and the aggregate principal
amount of Purchasers' Bonds which such defaulting Purchaser or Purchasers agreed
but failed to purchase is 10% of the principal amount of Purchasers' Bonds or
less, you may make arrangements satisfactory to the Company for the purchase of
such Purchasers' Bonds by other persons, including any of the Purchasers, but if
no such arrangements are made by the Closing Date, the non-defaulting Purchasers
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Purchasers' Bonds which such defaulting Purchasers
agreed but failed to purchase. If any Purchaser or Purchasers so default and the
aggregate principal amount of Purchasers' Bonds with respect to which such
default or defaults occur is more than the above percentage and arrangements
satisfactory to you and the Company for the purchase of such Purchasers' Bonds
by other persons are not made within thirty-six hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Purchaser or the Company, except as provided in Section 10. In the event that
any Purchaser or Purchasers default in their obligation to purchase Purchasers'
Bonds hereunder, the Company may, by prompt written notice to the non-defaulting
Purchasers, postpone the Closing Date for a period of not more than seven full
business days in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus or in any other documents, and
the Company will promptly file any amendments to the Registration Statement or
supplements to the Prospectus which may thereby be made necessary. As used in
this Agreement, the term "Purchaser" includes any person substituted for a
Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser
from liability for its default.
12. Parties in Interest. This Agreement shall inure to the benefit of the
Company, the Purchasers, the officers, directors and partners of such parties,
each controlling person referred to in Section 7 hereof, and their respective
successors. Nothing in this Agreement is intended or shall be construed to give
to any other person, firm or corporation (including, without limitation, any
purchaser of the Purchasers' Bonds from a Purchaser or any subsequent holder
thereof or any purchaser of any Contract Bonds or any subsequent holder
<PAGE>
-22-
thereof) any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall not include any
purchaser, as such purchaser, of any Purchased Bonds from any Purchaser or any
subsequent holder thereof or any purchaser, as such purchaser, of any Contract
Bonds or any subsequent holder thereof.
This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof, and supersedes any agreement previously
entered into.
13. Notices. All communications, terminations and notices hereunder shall
be in writing and, if sent to any Purchaser, shall be mailed, delivered or
telecopied and confirmed to it by letter to the address set forth for such
Purchaser in Schedule A to the Purchase Agreement (or such other place as the
Purchaser may specify in writing); if sent to the Company shall be mailed,
delivered or telecopied and confirmed to the Company at 602 Joplin Street,
Joplin, Missouri 64801, telecopier no. (417) 625-5153 (Attn: Vice President -
Finance) (or such other place as the Company may specify in writing).
14. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri.
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
Dated: ,
THE EMPIRE DISTRICT ELECTRIC COMPANY
602 Joplin Street
Joplin, Missouri 64801
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from The Empire District Electric
Company (the "Company"), and the Company agrees to sell to the undersigned,
$________________
principal amount of the Company's [state title of issue] (the "Bonds") offered
by the Company's Prospectus dated ________, and a Prospectus Supplement dated
________, ________, receipt of copies of which is hereby acknowledged, at a
purchase price of __% of the principal amount thereof plus accrued interest and
on the further terms and conditions set forth in this contract.
The undersigned agrees to purchase such Bonds in the principal amounts and
on the delivery dates (the "Delivery Dates") set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
---- ------ -------------
- ---------------- $--------------- ----------------
- ---------------- $--------------- ----------------
- ---------------- $--------------- ----------------
Payment for the Bonds which the undersigned has agreed to purchase on each
Delivery Date shall be made to the Company or its order by certified or bank
cashier's check in [same day or New York Clearing House funds] at [ ] (or at
such other place as the undersigned and the Company shall agree) at 11:00 A.M.,
New York City Time, on such Delivery Date upon issuance and delivery to the
undersigned of the Bonds to be purchased by the
<PAGE>
-2-
undersigned on such Delivery Date in such authorized denominations and, unless
otherwise provided herein, registered in such names as the undersigned may
designate by written or telegraphic communications addressed to the Company not
less than five full business days prior to such Delivery Date.
The obligation of the Company to sell and deliver, and of the undersigned
to take delivery of and make payment for, Bonds on each Delivery Date shall be
subject to the conditions that (1) the purchase of Bonds to be made by the
undersigned shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which the undersigned is subject, (2) the sale of the Bonds
by the Company pursuant to this contract shall not at the time of delivery be
prohibited under the laws of any jurisdiction to which the Company is subject
and (3) the Company shall have sold and delivered to the Purchasers such
principal amount of the Purchased Bonds as is to be sold and delivered to them.
In the event that Bonds are not sold to the undersigned because one of the
foregoing conditions is not met, the Company shall not be liable to the
undersigned for damages arising out of the transactions covered by this
contract.
Promptly after completion of the sale and delivery to the Purchasers, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by copies of the opinions of counsel for the
Company delivered to the Purchasers.
Failure to take delivery of and make payment for Bonds by any purchaser
under any other Delayed Delivery Contract shall not relieve the undersigned of
its obligations under this contract.
The undersigned represents and warrants that (a) as of the date of this
contract, the undersigned is not prohibited under the laws of the jurisdictions
to which the undersigned is subject from purchasing the Bonds hereby agreed to
be purchased and (b) the undersigned does not contemplate selling the Bonds
which it has agreed to purchase hereunder prior to the Delivery Date therefore.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other. This contract shall be
governed by and construed in accordance with the laws of the State of Missouri.
This contract may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
It is understood that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If the contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to
<PAGE>
-3-
the undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is so
signed.
Yours very truly,
________________________________
By ____________________________
________________________________
________________________________
Address
Accepted, as of the date first above written
The Empire District Electric Company
By_________________________________
<PAGE>
-4-
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
<PAGE>
The Empire District Electric Company
Form of Purchase Agreement
First Mortgage Bonds
_________________
(Date)
The Empire District Electric Company
602 Joplin Street
Joplin, Missouri 64801
Ladies and Gentlemen:
We refer to the First Mortgage Bonds of The Empire District Electric
Company (the "Company") covered by Registration Statement No. 333- , which
became effective on _________________ (the "Registration Statement"). On the
basis of the representations, warranties and agreements contained in this
Agreement, but subject to the terms and conditions herein set forth, the
purchaser or purchasers named in Schedule A hereto (the "Purchasers") agree to
purchase, severally, and the Company agrees to sell to the Purchasers,
severally, the respective principal amounts of the Company's First Mortgage
Bonds referred to below (the "Purchased Bonds") set forth opposite the name of
each Purchaser on Schedule A hereto.
The price at which the Purchased Bonds shall be purchased from the Company
by the Purchasers shall be ______% plus accrued interest, if any, from
____________. The initial public offering price shall be _____% plus accrued
interest, if any, from ______________. The Purchased Bonds will be offered as
set forth in the Prospectus Supplement relating to such Purchased Bonds.
The Purchased Bonds will have the following terms:
Interest Rate: ___% per annum
Interest Payment Dates: ______________
Maturity: ______________
Redemption Provisions: ______________
<PAGE>
-2-
Sinking Fund: ______________
The "Closing Date" (as
defined in Section 2
of the Company's Standard
Purchase Provisions -- First
Mortgage Bonds) shall be: ______________
The closing of the
purchase and sale of
the Purchased Bonds
shall take place at: ______________
The purchase price for
the Purchased Bonds
shall be paid by: ______________
The funds used to pay
for the Purchased Bonds
shall be: ______________
The Purchased Bonds shall
be made available for
inspection and packaging at: ______________
Other: ______________
Delayed Delivery
Contracts: [Authorized]/[Not authorized]
[Delivery Date ______________
Minimum principal amount of
Purchased Bonds to be
sold pursuant to any Delayed
Delivery Contract: ______________
Maximum aggregate principal
amount of Purchased Bonds
to be sold pursuant to all
Delayed Delivery Contracts: ______________
<PAGE>
-3-
Compensation to
Purchasers: ______________]*
Notice to the Purchasers shall be sent to the following address:
If we are acting as Representative(s) for the several Purchasers named in
Schedule A hereto, we represent that we are authorized to act for such several
Purchasers in connection with this financing, and that, if there are more than
one of us, any action under this Agreement taken by any of us will be binding
upon all the Purchasers.
All of the provisions contained in the document entitled "The Empire
District Electric Company, Standard Purchase Provisions--First Mortgage Bonds,"
a copy of which has been previously furnished to us, are hereby incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
- ----------
* To be used if Delayed Delivery Contracts are authorized.
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Purchasers in
accordance with its terms.
Very truly yours,
[NAME OF PURCHASER]
By:
---------------------------------------
Name:__________________________________
Title:_________________________________
Acting on behalf of and as Representa-
tive(s) of the several Purchasers named
in Schedule A hereto.*
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above written
THE EMPIRE DISTRICT ELECTRIC COMPANY
By: _______________________________
Name:
Title:
- ----------
* To be deleted if the Purchase Agreement is not executed by one or more
Purchasers acting as Representative(s) of the Purchasers for purposes of
this Agreement.
<PAGE>
SCHEDULE A TO PURCHASE AGREEMENT
Principal Amount
Address and of Purchased Bonds
Name Telecopier Number to Be Purchased
------------------
Total $
==================
Exhibit 4(u)
================================================================================
THE EMPIRE DISTRICT ELECTRIC COMPANY
TO
HARRIS TRUST AND SAVINGS BANK
AND
STATE STREET BANK AND TRUST COMPANY OF MISSOURI, N.A.
Trustees
------------------
*A* SUPPLEMENTAL INDENTURE
Dated as of *B*
------------------
(Supplemental to Indenture dated as of September 1, 1944)
-----------------
$*C*
First Mortgage Bonds, [*D*% Series due *E*]*V*
================================================================================
<PAGE>
-2-
(See Accompanying Legend on Final Two Pages)
<PAGE>
TABLE OF CONTENTS(1)
Page
Parties....................................................................
Recitals...................................................................
Form of Bond...............................................................
Form of Principal Trustee's Certificate of Authentication..................
Granting Clauses...........................................................
Property Now Owned or Hereafter Acquired...................................
Subject to Permitted Encumbrances, Liens on After
Acquired Property and Certain Vendor's Liens.............................
Habendum...................................................................
Grant in Trust.............................................................
Defeasance.................................................................
General Covenant...........................................................
- ----------
1 This Table of Contents is not a part of the annexed supplemental Indenture
as executed.
-i-
<PAGE>
ARTICLE I
Creation and Description of First Mortgage Bonds,
[*D*% Series Due *E*]*V*.
Section 1. Title and Terms................................................
Bonds to be dated as of authentication date....................
Record Date....................................................
Restriction on transfer or exchange............................
Denominations..................................................
Registrable and interchangeable, tax or government charge......
No service charge on exchange or transfer......................
Book-entry procedures..........................................
Section 2. Issue of Bonds of the New Series limited to $*C*.
All or a portion of Bonds of Series
may be authenticated prior to recording
of this Supplemental Indenture...............................
ARTICLE II
Redemption of Bonds of the New Series.
Section 1. Rights of redemption
[Also redeemable under Sinking Fund............................]*F*
Section 2. Manner and method of redemption................................
-ii-
<PAGE>
Section 3. Bondholder agrees to accept payment
upon terms of this Article...................................
[ARTICLE III
Sinking and Improvement Fund for Bonds of the New Series.
Section 1. Sinking Fund Payment Dates......................................
Section 2. Amount of Sinking Fund Payment..................................
Section 3. (a) Satisfaction of Sinking Fund requirement in lieu
of cash payment, by surrender of Bonds of the New
Series or by a credit on basis of net property
additions ..................................................
(b) Right to anticipate Sinking Fund requirements by
surrender of Bonds or credit on account of Bonds
previously redeemed.........................................
(c) Restriction on Bonds available for surrender or
credit on Sinking Fund......................................
Section 4. All cash paid to be applied to retirement of Bonds
of the New Series ............................................
Section 5. Sinking Fund Redemption Price...................................
Section 6. Description of "statement", to be delivered to Principal
Trustee ......................................................
-iii-
<PAGE>
Section 7. Procedure if credit taken for net property additions............
Section 8. Net property additions utilized as a credit to become
funded property ..............................................
Section 9. Application of cash (Sinking Fund Cash) to redemption of
Bonds of the New Series Form of Notice of Redemption..........
Principal Trustee may, upon failure of Company, give
notice of redemption, at expense of Company...................
Interest ceases to accrue on bonds called for redemption,
unless Company fails to make payment of redemption
price ........................................................
Bonds redeemed or retired under this Article to be cancelled....]*P*
ARTICLE IV
Dividends and Similar Distributions.
Covenants in ss. 4.11 of the Indenture to continue in
effect so long as any Bonds of the New Series are
outstanding...................................................
-iv-
<PAGE>
ARTICLE V
The Trustees.
The Trustees accept the trusts created by this
Supplemental Indenture and agree to perform the same
upon terms set forth in the Original Indenture as
supplemented .................................................
ARTICLE VI
Miscellaneous Provisions.
Section 1. Provision regarding legal holidays..............................
Section 2. Original Indenture, as supplemented and amended,
ratified and confirmed .......................................
Section 3. This Supplemental Indenture may be executed in counterparts.....
Section 4. Rights conferred only on holder of bonds, Company and Trustees..
Testimonium.................................................................
Signatures and Seals .......................................................
Acknowledgments.............................................................
-v-
<PAGE>
*A* SUPPLEMENTAL INDENTURE, dated as of *B*, between The Empire District
Electric Company, a corporation organized and existing under the laws of the
State of Kansas (hereinafter called the "Company"), party of the first part, and
Harris Trust and Savings Bank, a corporation organized and existing under the
laws of the State of Illinois and having its principal place of business at 111
West Monroe Street, in the City of Chicago, Illinois, and State Street Bank and
Trust Company of Missouri, N.A., a national banking association organized and
existing under the laws of the United States of America and having its principal
corporate trust office in the City of St. Louis, Missouri (successor to
Mercantile Bank of Western Missouri, Joplin, MO as set out in Resignation and
Appointment Agreement dated July 28, 1997, recorded with the Recorder of Deeds
in Carthage, MO and successor at Book 1558, Pages 502-509) (hereinafter
sometimes called respectively the "Principal Trustee" and the "Missouri Trustee"
and together the "Trustees" and each thereof a "Trustee"), as Trustees, parties
of the second part.
WHEREAS the Company has heretofore executed and delivered to the Trustees
its Indenture of Mortgage and Deed of Trust, dated as of September 1, 1944
(hereinafter sometimes referred to as the "Original Indenture"), to secure an
issue of First Mortgage Bonds of the Company, issuable in series, and created
thereunder a series of bonds designated as First Mortgage Bonds, 3 1/2% Series
due 1969, being the initial series of bonds issued under the Original Indenture;
and
WHEREAS the Company has heretofore executed and delivered to the Trustees
*G* Supplemental Indentures supplemental to the Original Indenture as follows:
Title Dated
First Supplemental Indenture...........................as of June 1, 1946
Second Supplemental Indenture..........................as of January 1, 1948
Third Supplemental Indenture...........................as of December 1, 1950
Fourth Supplemental Indenture..........................as of December 1, 1954
Fifth Supplemental Indenture...........................as of June 1, 1957
Sixth Supplemental Indenture...........................as of February 1, 1968
Seventh Supplemental Indenture.........................as of April 1, 1969
Eighth Supplemental Indenture..........................as of May 1, 1970
Ninth Supplemental Indenture...........................as of July 1, 1976
Tenth Supplemental Indenture...........................as of November 1, 1977
Eleventh Supplemental Indenture........................as of August 1, 1978
Twelfth Supplemental Indenture.........................as of December 1, 1978
Thirteenth Supplemental Indenture......................as of November 1, 1979
<PAGE>
-2-
Fourteenth Supplemental Indenture......................as of September 15, 1983
Fifteenth Supplemental Indenture.......................as of October 1, 1988
Sixteenth Supplemental Indenture.......................as of November 1, 1989
Seventeenth Supplemental Indenture.....................as of December 1, 1990
Eighteenth Supplemental Indenture......................as of July 1, 1992
Nineteenth Supplemental Indenture......................as of May 1, 1993
Twentieth Supplemental Indenture.......................as of June 1, 1993
Twenty-First Supplemental Indenture....................as of October 1, 1993
Twenty-Second Supplemental Indenture...................as of November 1, 1993
Twenty-Third Supplemental Indenture....................as of November 1, 1993
Twenty-Fourth Supplemental Indenture...................as of March 1, 1994
Twenty-Fifth Supplemental Indenture....................as of November 1, 1994
Twenty-Sixth Supplemental Indenture....................as of April 1, 1995
Twenty-Seventh Supplemental Indenture..................as of June 1, 1995
Twenty-Eighth Supplemental Indenture...................as of December 1, 1996
Twenty-Ninth Supplemental Indenture....................as of April 1, 1998
Thirtieth Supplemental Indenture.......................as of July 1, 1999
*G*
some for the purpose of creating an additional series of bonds and of conveying
additional property of the Company, and some for the purpose of modifying or
amending provisions of the Original Indenture (the Original Indenture, all said
Supplemental Indentures and this Supplemental Indenture are herein collectively
called the "Indenture"); and
[WHEREAS the Company has acquired certain additional property hereinafter
described or mentioned and, in compliance with its covenants in the Original
Indenture, desires, by this *A* Supplemental Indenture, to evidence the
subjection of such additional property to the lien of the Indenture; and] *F*
WHEREAS provided by the Original Indenture, the Board of Directors of the
Company, by resolution, has authorized a new series of bonds, to mature *E*, and
to be designated as "First Mortgage Bonds, [*D*% Series due *E*]*V*," and has
authorized provisions permitted by the Original Indenture in respect of the
bonds of said series; and
WHEREAS the Board of Directors of the Company has authorized the Company to
enter into this *A* Supplemental Indenture (herein sometimes referred to as
"this *A* Supplemental Indenture" or "this Supplemental Indenture") conveying to
the Trustees and subjecting to the lien of the Indenture the property
hereinafter described or mentioned, creating and designating the new series of
bonds, and specifying the form and provisions of the bonds of said series
provided or permitted by the Original Indenture; and
<PAGE>
-3-
WHEREAS the texts of the First Mortgage Bonds, [*D*% Series due *E*]*V*,
and of the Principal Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the forms following, respectively:
[Form of Bond]
[Face]
THE EMPIRE DISTRICT ELECTRIC COMPANY
First Mortgage Bond
[*D*% Series Due *E*]*V*
[Interest Rate: *D*%]*X*
Due *E*
No. $..........
The Empire District Electric Company, a corporation organized and existing
under the laws of the State of Kansas (hereinafter sometimes called the
"Company"), for value received, hereby promises to pay to or registered assigns,
on *E* (unless this bond shall have been called for previous redemption and
provision made for the payment of the redemption price thereof)*N*, Dollars ($ )
at its office or agency in the city of Chicago, Illinois, and to pay interest
thereon at said office or agency at the rate per annum specified in the title
hereof from *R*, or from the most recent interest payment date to which interest
has been paid or duly provided for on the bonds of this series, semi-annually on
*H* and *H* in each year, commencing on *I*, until the Company's obligation with
respect to such principal sum shall be discharged. The principal of and the
premium, if any, and the interest on this bond shall be payable in any coin or
currency of the United States of America which at the time of payment shall be
legal tender for the payment of public and private debts. The interest so
payable on any *H* or *H* will, subject to certain exceptions provided in the
*A* Supplemental Indenture referred to on the reverse hereof, be paid to the
person in whose name this bond is registered at the close of business on the *J*
or *J* next preceding such *H* or *H*. Notwithstanding anything in the Original
Indenture or this Supplemental Indenture to the contrary, so long as the bonds
of this series are in a book-entry only system, payment of principal of and
interest on this bond will be in accordance with arrangements with The
Depository Trust Company, a New York corporation ("DTC").
Reference is made to the further provisions of this bond set forth on the
reverse hereof. Such provisions shall for all purposes have the same effect as
though fully set forth at this place.
<PAGE>
-4-
This bond shall not be valid or become obligatory for any purpose until the
certificate of authentication endorsed hereon shall have been signed by Harris
Trust and Savings Bank or its successor, as a Trustee under the Indenture
referred to on the reverse hereof.
IN WITNESS WHEREOF, The Empire District Electric Company has caused this
bond to be signed in its name by the facsimile signature of its President or a
Vice President, and its corporate seal to be imprinted hereon and attested by
the facsimile signature of its Secretary or an Assistant Secretary.
Dated:
The Empire District Electric Company,
By.....................................
President
Attest:
.............................
Secretary
[Form of Bond]
[Reverse]
This bond is one of an issue of bonds of the Company, known as its First
Mortgage Bonds, issued and to be issued in one or more series under and equally
and ratably secured (except as any sinking, amortization, improvement or other
fund, established in accordance with the provisions of the indenture hereinafter
mentioned may afford additional security for the bonds of any particular series)
by a certain indenture of mortgage and deed of trust, dated as of September 1,
1944, made by the Company to Harris Trust and Savings Bank and State Street Bank
and Trust Company of Missouri, N.A., as Trustees (hereinafter called the
"Trustees"), and certain indentures supplemental thereto, including a Third
Supplemental Indenture, a Sixth Supplemental Indenture, a Seventh Supplemental
Indenture, an Eighth Supplemental Indenture, a Fourteenth Supplemental
Indenture, a Twenty-Fourth Supplemental Indenture, a Thirtieth Supplemental
Indenture and a *A* Supplemental Indenture (dated respectively as of December 1,
1950, February 1, 1968, April 1, 1969, May 1, 1970, September 15, 1983, March 1,
1994,
<PAGE>
-5-
July 1, 1999 and *B*) made by the Company to the Trustees (said indenture of
mortgage and deed of trust and all indentures supplemental thereto being
hereinafter collectively called the "Indenture"), to which Indenture reference
is hereby made for a description of the property mortgaged, the nature and
extent of the security, the rights and limitations of rights of the Company, the
Trustees, and the holders of said bonds, and the terms and conditions upon which
said bonds are secured, to all of the provisions of which Indenture, including
the provisions permitting the issuance of bonds of any series for property
which, under the restrictions and limitations therein specified, may be subject
to liens prior to the lien of the Indenture, the holder, by accepting this bond,
assents. To the extent permitted by, and as provided in, the Indenture, the
rights and obligations of the Company and of the holders of said bonds may be
changed and modified, with the consent of the Company, by the holders of at
least 60% in aggregate principal amount of the bonds then outstanding, such
percentage being determined as provided in the Indenture, or in the event that
one or more but less than all of the series of bonds then outstanding are
affected by such change or modification, by the holders of 60% in aggregate
principal amount of the outstanding bonds of such one or more series so
affected. Without the consent of the holder hereof no change or modification of
the rights and obligations of the Company and of the holders of the bonds shall
be made which will extend the time of payment of the principal of or the
interest on this bond or reduce the principal amount hereof or the rate of
interest hereon or will otherwise modify the terms of payment of such principal
or interest (other than changes in any sinking or other fund) or will permit the
creation of any lien ranking prior to or on a parity with the lien of the
Indenture on any of the mortgaged property, or will deprive any non-assenting
bondholder of a lien upon the mortgaged property for the security of such
bondholder's bonds, subject to certain exceptions, or will, except as provided
above, reduce the percentage of bonds required for the aforesaid action under
the Indenture. This bond is one of a series of bonds designated as the First
Mortgage Bonds, [*D*% Series due *E*]*V*, of the Company.
[This bond is subject to redemption prior to maturity, upon not less than
thirty nor more than sixty days' prior notice, all as more fully provided in the
Indenture, (a) through the operation of the Sinking Fund provided for this
series in the Indenture, on *L* and on each *M* thereafter prior to maturity, at
the [applicable] principal amount thereof [set forth in the table below],
together with accrued interest to the date fixed for redemption, and (b) at the
option of the
<PAGE>
-6-
Company, - on and after *R*, at any time as a whole or from time to time in
part, at the principal amount thereof, with accrued interest to the date fixed
for redemption and the applicable premium (expressed as a percentage of the
principal amount) set forth in the table below for the twelve-month period
beginning *M* in the appropriate year under the heading "Optional Redemption
Premium":
Sinking Sinking
Optional Fund Optional Fund
Redemption Redemption Redemption Redemption
Year Premium Price Year Premium Price
- --------- --------------- --------------- -------- ------------- ---------------
*T* *U* *U* % *T* *U* *U* %
; provided, however, that this bond may not be redeemed pursuant to clause (b)
above prior to *R*, directly or indirectly as a part of, or in anticipation of,
any refunding operation involving the incurring of indebtedness having an
interest cost to the Company (calculated in accordance with accepted financial
practice and before deduction of commissions and expenses) of less than *D* per
annum.]*O*
If this bond shall be called for redemption in whole or in part, and
payment of the redemption price shall be duly provided by the Company as
specified in the Indenture, interest shall cease to accrue hereon (or on the
portion hereof to be redeemed) from and after the date of redemption fixed in
the notice thereof.]*N*
The principal of this bond may be declared or may become due before the
maturity hereof, on the conditions, in the manner and at the times set forth in
the Indenture, upon the happening of a default as therein defined.
This bond is transferable by the registered owner hereof in person or by
his duly authorized attorney at the office or agency of the Company in the city
of Chicago, Illinois,
<PAGE>
-7-
upon surrender and cancellation of this bond, and thereupon a new bond of this
series, for a like principal amount, will be issued to the transferee in
exchange therefor, as provided in the Indenture. If this bond is transferred or
exchanged between a record date, as defined in the aforementioned *A*
Supplemental Indenture, dated as of *B*, and the interest payment date in
respect thereof, the new bond or bonds will bear interest from such interest
payment date unless the interest payable on such date is not duly paid or
provided for on such date. The Company and the Trustees and any paying agent may
deem and treat the person in whose name this bond is registered as the absolute
owner hereof for the purpose of receiving payment as herein provided and for all
other purposes. This bond, alone or with other bonds of this series, may in like
manner be exchanged at such office or agency for one or more new bonds of this
series in authorized denominations, of the same aggregate principal amount, all
as provided in the Indenture. Upon each such transfer or exchange the Company
may require the payment of any stamp or other tax or governmental charge
incident thereto.
No recourse under or upon any covenant or obligation of the Indenture, or
of any bonds thereby secured, or for any claim based thereon, or otherwise in
any manner in respect thereof, shall be had against any incorporator, subscriber
to the capital stock, stockholder, officer or director, as such, of the Company,
whether former, present or future, either directly, or indirectly through the
Company or the Trustees or either of them, by the enforcement of any
subscription to capital stock, assessment or otherwise, or by any legal or
equitable proceeding by virtue of any statute or otherwise (including, without
limiting the generality of the foregoing, any proceeding to enforce any claimed
liability of stockholders of the Company based upon any theory of disregarding
the corporate entity of the Company or upon any theory that the Company was
acting as the agent or instrumentality of the stockholders), any and all such
liability of incorporators, stockholders, subscribers, officers and directors,
as such, being released by the holder hereof, by the acceptance of this bond,
and being likewise waived and released by the terms of the Indenture under which
this bond is issued.
Whenever the beneficial ownership of this bond is determined by a
book-entry at a securities depository for the bonds, the foregoing requirements
of holding, delivering or transferring this bond shall be modified to require
the appropriate person or entity to meet the requirements of the securi-
<PAGE>
-8-
ties depository as to registering or transferring the book-entry to produce the
same effect.
-----------------------
[FORM OF PRINCIPAL TRUSTEE'S
CERTIFICATE OF AUTHENTICATION]
This bond is one of the bonds, of the series designated therein, described
in the within-mentioned Indenture.
Harris Trust and Savings Bank,
As Trustee,
By..............................................
Authorized Officer.
and
WHEREAS the Company represents that all acts and things necessary have
happened, been done, and been performed, to make the First Mortgage Bonds, [*D*%
Series due *E*]*V*, when duly executed by the Company and authenticated by the
Principal Trustee, and duly issued, the valid, binding and legal obligations of
the Company, and to make the Original Indenture, the aforementioned *G*
Supplemental Indentures and this Supplemental Indenture valid and binding
instruments for the security thereof, in accordance with their terms;
NOW, THEREFORE, THIS *A* SUPPLEMENTAL INDENTURE WITNESSETH: That The Empire
District Electric Company, the Company herein named, in consideration of the
premises and of One Dollar ($1.00) to it duly paid by the Trustees at or before
the ensealing and delivery of these presents, the receipt whereof is hereby
acknowledged, and in order to secure the payment of the principal of and the
interest on all bonds from time to time outstanding under the Indenture,
according to the terms of said bonds and of the coupons attached thereto, has
granted, bargained, sold, warranted, aliened, remised, released, conveyed,
assigned, transferred, mortgaged, pledged, set over and confirmed, and by these
presents does grant bargain, sell, warrant, alien, remise, release, convey,
assign, transfer, mortgage, pledge, set over and confirm unto Harris Trust and
Savings Bank and State Street Bank and Trust Company of Missouri, N.A., as
Trustees, and their respective successor or successors in the trust, and its or
their assigns forever,
<PAGE>
-9-
the following property, with the same force and effect and subject to the same
reservations and exceptions, as though specifically described in the granting
clauses of the Original Indenture, that is to say:
[INSERT HERE DESCRIPTION OF PROPERTY]
ALSO all other property, whether real, personal or mixed (except as in the
Original Indenture expressly excepted) of every nature and kind and wheresoever
situated now owned or hereafter acquired by the Company;
TOGETHER with all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid mortgaged
property or any part thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of ss. 8.01 of the Original Indenture)
the tolls, rents, revenues, issues, earnings, income, products and profits
thereof, and all the estate, right, title and interest and claim whatsoever, at
law as well as in equity, which the Company now has or may hereafter acquire in
and to the aforesaid mortgaged property, and every part and parcel thereof;
SUBJECT, HOWEVER, to permitted encumbrances as defined in the Original
Indenture and, as to any property hereafter acquired by the Company, to any lien
thereon existing, and to any liens for unpaid portions of the purchase money
placed thereon at the time of such acquisition, and also subject to the
provisions of Article 12 of the Original Indenture.
TO HAVE AND TO HOLD the same, unto the Trustees and their and each of their
respective successors and assigns forever;
IN TRUST, NEVERTHELESS, upon the terms and trusts set forth in the
Indenture, so that the same shall be held specifically by the Trustees under and
subject to the terms of the Indenture in the same manner and for the same
trusts, uses and purposes as if said properties had been specifically contained
and described in the Original Indenture;
<PAGE>
-10-
PROVIDED, HOWEVER, and these presents are upon the condition that, if the
Company, its successors or assigns, shall pay or cause to be paid unto the
holders of the bonds the principal and interest, and premium, if any, to become
due in respect thereof at the times and in the manner stipulated therein and in
the Indenture and shall keep, perform and observe all and singular the covenants
and promises in said bonds and in the Indenture expressed to be kept, performed
and observed by or on the part of the Company, then the Indenture and the estate
and rights thereby granted shall cease, determine and be void, otherwise to be
and remain in full force and effect.
AND THE COMPANY, for itself and its successors, does hereby covenant and
agree to and with the Trustees, for the benefit of those who shall hold the
bonds and the coupons appertaining thereto, or any of them, issued or to be
issued under the Indenture, as follows:
ARTICLE I
CREATION AND DESCRIPTION OF FIRST MORTGAGE BONDS,
[*D*% SERIES DUE *E*]*V*.
Section 1. A new series of bonds to be issued under and secured by
the Indenture is hereby created, to be designated as First Mortgage Bonds, [*D*%
Series due *E*]*V* (herein sometimes called the "Bonds of the New Series" or
"Bonds"). The Bonds of the New Series shall be limited to an aggregate principal
amount of *C* Dollars ($*C*), excluding any Bonds of the New Series which may be
authenticated in lieu of or in substitution or exchange for other Bonds of the
New Series pursuant to the provisions of Article 2 or of ss. 15.09 of the
Original Indenture. Said Bonds and the certificate of authentication of the
Principal Trustee to be endorsed upon the Bonds shall be substantially in the
forms hereinbefore recited, respectively. Each Bond shall be dated as of the
date of its authentication and all Bonds of the New Series shall mature and
shall bear interest at the rate of *D*% per annum, payable semi-annually on *H*
and *H* in each year, commencing *I*; both principal and interest shall be
payable at the office or agency of the Company in the City of Chicago, Illinois,
and in any coin or currency of the United States of America which at the time of
payment shall be legal tender for the payment of public and private debts. [The
Bonds shall be initially authenticated and delivered from time to time upon
delivery to the Principal Trustee of the documents required by the Indenture,
including a
<PAGE>
-11-
resolution of the Board of Directors of the Company, or the Executive Committee
thereof specifying the principal amount of the Bonds of the New Series to be
issued on the specified date of issuance, the numbers, denominations, date or
dates, maturity date or dates, redemption prices and interest rate or rates of
such Bonds of the New Series; provided, that no Bond of the New Series shall
mature on a date less than nine months or more than thirty years from the date
of issue and provided further, that all Bonds of the New Series having the same
date of maturity shall be identical as to rate of interest and terms of
redemption, if redeemable.
Each Bond of the New Series shall be dated as of the date of its
authentication. Each Bond of the New Series shall bear interest at such rate or
rates per annum and have such other terms and provisions as the Board of
Directors of the Company, or the Executive Committee thereof, may determine.
Such interest shall be payable semi-annually on *H* and *H* in each year,
commencing *I*; both principal and interest shall be payable at the office or
agency of the Company in the city of Chicago, Illinois, and in any coin or
currency of the United States of America which at the time of payment shall be
legal tender for the payment of public and private debts.
The definitive Bonds of the New Series shall be issued in fully registered
form without coupons of the denomination of $ *Y* or any larger number that is
an integral multiple of $1,000.
Bonds of the New Series which are to be deposited upon issuance with The
Depository Trust Company or such other depositary designated by the Board of
Directors or a committee authorized by such Board of Directors shall be issued
in the form of one or more global securities. Upon issuance, all Bonds having
the same date, maturity date, redemption provisions and interest rates shall be
represented by a single global security.] *Z*
The holder of any Bond on any record date (as hereinbelow defined) with
respect to any interest payment date shall be entitled to receive the interest
payable on such interest payment date notwithstanding the cancellation of such
Bond upon any exchange or transfer thereof subsequent to the record date and
prior to such interest payment date, except if and to the extent that the
Company shall default in the payment of the interest due on such interest
payment date, in which case such defaulted interest shall be paid to the person
in whose name such Bond (or any Bond or Bonds issued upon transfer or ex-
<PAGE>
-12-
change thereof) is registered on a date fixed by the Company, which shall be not
more than fifteen and not less than ten days before the date of payment of such
defaulted interest. The term "record date" as used in this Section with respect
to any interest payment date shall mean the close of business on the *J* or *J*,
as the case may be, next preceding such interest payment date, whether or not
such *J* or *J* shall be a legal holiday or a day on which banking institutions
in the state of Illinois are authorized by law to remain closed.
The Company shall not be required to make any transfer or exchange of any
Bonds for a period of ten days next preceding any selection of Bonds for
redemption, nor shall it be required to make transfers or exchanges of any bonds
which shall have been selected for redemption in whole or in part.
Bonds of the New Series shall be registered Bonds in book-entry form or in
definitive form without coupons in denominations of $1,000 and any integral
multiple of $1,000 which may be executed by the Company and delivered to the
Principal Trustee for authentication and delivery.
The Bonds of the New Series shall be registrable and interchangeable at the
office or agency of the Company in the city of Chicago, Illinois, in the manner
and upon the terms set forth in ss. 2.05 of the Original Indenture, upon payment
of such an amount as shall be sufficient to reimburse the Company for, or to
pay, any stamp or other tax or governmental charge incident thereto.
Notwithstanding the provisions of ss. 2.08 of the Original Indenture, no
service or other charge will be made for any exchange or transfer of any Bond of
the New Series.
If the Bonds of the New Series are to be issued in book-entry form only,
notwithstanding any provision of the Indenture to the contrary, unless the
Company shall otherwise direct (which direction shall promptly be given at the
written request of The Depository Trust Company ("DTC")), all Bonds of the New
Series shall be registered in the name of Cede & Co., as nominee of DTC, as
registered owner of the Bonds of the New Series, and held in the custody of DTC.
Unless otherwise requested by DTC, a single certificate will be issued and
delivered to DTC. Beneficial owners of Bonds of the New Series will not receive
physical delivery of Bond certificates except as hereinafter provided. For so
long as DTC shall continue to serve as securities depository for the Bonds of
the New Series as provided herein, all transfers of beneficial ownership
in-
<PAGE>
-13-
terests will be made by book-entry only, and no investor or other party
purchasing, selling or otherwise transferring beneficial ownership of Bonds of
the New Series is to receive, hold or deliver any Bond certificate.
With respect to Bonds of the New Series registered in the name of Cede &
Co., as nominee of DTC, the Trustees and the Company shall have no
responsibility or obligation to the securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations on whose behalf
DTC was created to hold securities to facilitate the clearance and settlement of
securities transactions among DTC participants ("DTC Participants") or to any
person on whose behalf a DTC Participant holds an interest in the Bonds of the
New Series. Without limiting the immediately preceding sentence, the Trustees
and the Company shall have no responsibility or obligation with respect to (i)
the accuracy of the records of DTC, Cede & Co. or any DTC Participant with
respect to any ownership interest in the Bonds of the New Series, (ii) the
delivery to any DTC Participant or any other person, other than the registered
owner of the Bonds of the New Series, of any notice with respect to the Bonds of
the New Series, including any notice of redemption, or (iii) the payment to any
DTC Participant or any other person, other than the registered owner of the
Bonds of the New Series, of any amount with respect to principal of or premium,
if any, or interest on the Bonds of the New Series.
If the Bonds of the New Series are to be issued in book-entry form only,
replacement Bonds may be issued directly to beneficial owners of Bonds of the
New Series other than DTC, or its nominee, but only in the event that (i) DTC
determines not to continue to act as securities depository for the Bonds of the
New Series (which determination shall become effective by the giving of
reasonable notice to the Company or the Principal Trustee); or (ii) the Company
has advised DTC of its determination (which determination is conclusive as to
DTC and beneficial owners of the Bonds of the New Series) to terminate the
services of DTC as securities depository for the Bonds of the New Series; or
(iii) the Company has determined (which determination is conclusive as to DTC
and the beneficial owners of the Bonds of the New Series) that the interests of
the beneficial owners of the Bonds of the New Series might be adversely affected
if such book-entry only system of transfer is continued. Upon occurrence of the
event set forth in (i) above, the Company shall use its best efforts to attempt
to locate another qualified securities depository. If the Company fails to
locate another qualified securities depository to replace DTC, the Company shall
direct the Principal Trustee to cause to be
<PAGE>
-14-
authenticated and delivered replacement Bonds of the New Series, in certificated
form, to the beneficial owners of the Bonds of the New Series. In the event that
the Company makes the determination described in (ii) or (iii) above (provided
that the Company undertakes no obligation to make any investigation to determine
the occurrence of any events that would permit the Company to make any such
determination), and has made provisions to notify the beneficial owners of Bonds
of the New Series of such determination by mailing an appropriate notice to DTC,
the Company shall cause to be issued replacement Bonds of the New Series in
certificated form to beneficial owners of the Bonds of the New Series as shown
on the records of DTC provided to the Principal Trustee and the Company.
Whenever, during the term of the Bonds of the New Series, the beneficial
ownership thereof is determined by a book-entry at DTC, the requirements in the
Original Indenture or this Supplemental Indenture relating to holding,
delivering or transferring Bonds or selection of Bonds to be redeemed shall be
deemed modified to require the appropriate person or entity to meet the
requirements of DTC as to registering or transferring the book-entry to produce
the same effect.
If the Bonds of the New Series are to be issued in book-entry form only,
notwithstanding any provision of the Original Indenture or this Supplemental
Indenture to the contrary, all Bonds of the New Series issued hereunder, if DTC
so requires, shall bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the
Company or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
If the Bonds of the New Series are to be issued in book-entry form only,
the Company and the Principal Trustee shall enter into a letter of
representations with DTC to imple-
<PAGE>
-15-
ment the book-entry only system of Bond registration described above.
If at any time DTC ceases to hold the Bonds of the New Series, all
references herein to DTC shall be of no further force or effect.
Section 2. The Bonds of the New Series described in Section 1 of
this Article, in the aggregate principal amount of *C* Dollars ($*C*), shall be
executed by the Company and delivered to the Principal Trustee and, upon
compliance with all the provisions and requirements of the Original Indenture in
respect thereof, all or any portion of the Bonds of the New Series may, from
time to time, be authenticated by the Principal Trustee and delivered (without
awaiting the filing or recording of this Supplemental Indenture) in accordance
with the written order or orders of the Company.
ARTICLE II
Redemption of Bonds of the New Series.
Section 1. The Bonds of the New Series, in the manner provided in Article 5
of the Original Indenture, shall be redeemable at any time [on or after *R*
and]*F* prior to maturity, in whole or in part, at the option of the Company, at
the principal amount of the Bonds so to be redeemed and accrued interest to the
date fixed for redemption together with any applicable premium as specified
under the heading "Redemption Premium" in the form of Bond set forth in this
Supplemental Indenture. [provided, however, that no Bonds of the New Series may
be so redeemed prior to *R*, directly or indirectly as a part of, or in
anticipation of, any refunding operation involving the incurring of indebtedness
having an interest cost to the Company (calculated in accordance with accepted
financial practice and before deduction of commissions and expenses) of less
than *D*% per annum.]*O*
[The Bonds of the New Series shall also be redeemable through the operation
of the Sinking Fund therefor in the manner, to the extent and at the Sinking
Fund Redemption Price[s] provided for in Article III of this Supplemental
Indenture.]*N*
Section 2. The provisions of ss. 5.03, ss. 5.04 and ss. 5.05 of the
Original Indenture shall be applicable to Bonds of the New Series. The principal
amount of Bonds of the
<PAGE>
-16-
Series registered in the name of any holder and to be redeemed on any partial
redemption shall be $1,000, or a multiple thereof.
Section 3. The holder of each and every Bond of the New Series
issued hereunder hereby, and by accepting the Bond, agrees to accept payment
thereof prior to maturity on the terms and conditions provided for in Articles
II [and III]*N* hereof.
ARTICLE III
Sinking and Improvement Fund for Bonds of the New Series.
Section 1. For the purpose of this Article, the *L* and each *M*
thereafter, to and including *R*, are called Sinking Fund Payment Dates.
Section 2. The Company covenants and agrees that it will on *L*
create, and so long as any Bonds of the New Series are outstanding maintain, a
Sinking and Improvement Fund for the Bonds of New Series, and that, except as in
this Article otherwise permitted, it will pay to the Principal Trustee on or
before each Sinking Fund Payment Date, so long as any Bonds of the New Series
are outstanding, for the account of such Sinking and Improvement Fund, cash
sufficient in amount to retire *Q* principal amount of Bonds of the New Series,
at the [applicable] Sinking Fund Redemption Price provided for in Section 5 of
this Article.
Section 3. (a) The Company may satisfy all or any part of its
obligations under this Article otherwise than by payment of cash as provided in
Section 2 hereof by (i) the delivery to the Principal Trustee of bonds of the
New Series theretofore acquired by the Company, subject to compliance with
paragraph (c) of this Section 3, and each such Bond shall be received by the
Principal Trustee in lieu of cash in an amount equal to the [applicable] Sinking
Fund Redemption Price of such Bond or (ii) utilizing as a credit any net
property additions which might otherwise be made the basis for the
authentication and delivery of bonds under the provisions of Article 3 of the
Original Indenture and which the Company elects to make the basis of a credit
under this Article. Such net property additions shall be accepted by the
Principal Trustee in lieu of cash in an amount equal to 60% of the amount of
such net property additions.
<PAGE>
-17-
(b) The Company shall also have the right at any time and from time to time
to anticipate payment of all or any part of any one or more Sinking Fund
payments (but not, in respect of any particular Sinking Fund payment, after the
delivery to the Principal Trustee of the statement of the Company required by
Section 6 of this Article) and to receive a credit on its obligations under this
Article, to the extent of the [applicable] Sinking Fund Redemption Price in
respect of
(1) any Bonds of the New Series theretofore acquired by the Company
and then or theretofore delivered by it to the Principal Trustee for
cancellation, or
(2) any Bonds of the New Series previously redeemed, or called for
redemption, and no longer outstanding,
subject to compliance with paragraph (c) of this Section 3, by delivery to the
Principal Trustee of a statement of the Company setting forth in detail the
Sinking Fund payments or parts thereof which the Company elects to anticipate,
and the principal amount of the Bonds of the New Series the retirement of which
under clauses (1) and/or (2) above is made the basis of such anticipated payment
or payments, and otherwise showing compliance with the requirements of this
Section 3.
[(c) No Bond shall be made the basis of a credit under this Article upon
any Sinking Fund payment or anticipated payment (i) if such Bond shall have been
acquired, retired, redeemed or called for redemption by operation of the Sinking
Fund or any maintenance, improvement or other fund under the Indenture or by the
use of the proceeds of insurance on, or of the release or other disposition of,
any funded property or by use as provided in ss. 3.10 of the Original Indenture
of any cash deposited under ss. 3.08 of the Original Indenture or (ii) if the
acquisition, retirement, redemption or call for redemption of such Bond has
theretofore been made the basis for the issue of any bond or the withdrawal of
cash or the taking of a credit under any of the provisions of the Indenture.]*P*
Section 4. All cash paid by the Company to the Principal Trustee
pursuant to the provisions of this Article shall be applied to the redemption of
Bonds of the New Series as provided in this Article.
Section 5. The Sinking Fund Redemption Price applicable to Bonds of
the New Series to be retired under the provisions of this Article shall be the
[percentage of the] principal amount thereof [set forth under the heading
Sinking Fund
<PAGE>
-18-
Redemption Price in the form of Bond set forth in this Supplemental Indenture]
together with accrued interest to the redemption date (herein referred to as the
"Sinking Fund Redemption Price").
Section 6. The Company will at least sixty days prior to each
Sinking Fund Payment Date (except in a case where the Sinking Fund Payment due
on such date shall have been anticipated in full pursuant to Section 3(b) of
this Article) deliver a statement of the Company to the Principal Trustee
stating (i) the aggregate principal amount of Bonds of the New Series acquired
by the Company which it intends to deliver to the Principal Trustee on such
Sinking Fund Payment Date pursuant to Section 3(a)(i) of this Article on account
of such Sinking Fund obligation (or on account of all or any part of the
unanticipated balance thereof) and otherwise showing compliance with said
Section 3(a)(i), and (ii) the amount of net property additions which the Company
intends to use as a credit to such Sinking Fund obligation pursuant to Section
3(a)(ii) of this Article.
Section 7. In case credit under this Article is taken in whole or in
part on the basis of net property additions, the Company shall comply with all
provisions of the Indenture which would be applicable if such net property
additions were made the basis of an application for the authentication of bonds
as provided in ss. 3.04 of the Original Indenture except as hereinafter in this
Section provided.
In any such case, the Company shall file with the Principal Trustee
appropriate documents evidencing compliance with all such applicable provisions;
provided, however, that in no such case shall the Company be required to deliver
to the Principal Trustee any resolution or documents such as are described in
subdivisions (1), (2) and (6) of ss. 3.06 of the Original Indenture, or any
opinions with respect to the authorization of the issuance of bonds by
governmental authorities and by the Company and with respect to tax laws
applicable to the issuance of bonds, or to comply with any earnings
requirements, or, unless the Principal Trustee shall so request, to comply with
the requirements of the proviso in subdivision (8) of ss. 3.06 of the Original
Indenture.
Section 8. In case any net property additions shall be utilized as a
basis for credit under this Article, the property additions included therein
shall forthwith become funded property (as defined in ss. 1.07 of the Original
Indenture), and the engineer's certificate filed with the Principal Trustee
<PAGE>
-19-
pursuant to Section 7 of this Article shall be considered as though it had been
filed pursuant to subdivision (3) of ss. 3.06 of the Original Indenture for the
purposes of Clause (A) of said subdivision (3); provided, however, that any net
property additions certified in such engineer's certificate in excess of the
amount utilized for such credit may be added to, and treated as part of, the
"unapplied balance of property additions" (as defined in ss. 1.05 of the
Original Indenture) and be available for any purpose for which the "unapplied
balance of property additions" is available under the Indenture, and for the
purpose of a credit under this Article. Any certificate executed pursuant to the
provisions of ss. 3.06 of the Original Indenture shall give effect to the
provisions of this Section.
Section 9. On each Sinking Fund Payment Date, it shall be the duty
of the Principal Trustee to apply the cash paid to it under this Article for the
account of the Sinking Fund (hereinafter called "Sinking Fund Cash") to the
redemption of Bonds of the New Series at the Sinking Fund Redemption Price. Such
redemption, including the selection of the Bonds or portions thereof to be
redeemed, shall be carried out in the manner provided in Article 5 of the
Original Indenture, and the portion of any Bond of the New Series to be redeemed
shall be $1,000 or a multiple thereof.
Each notice of redemption shall state (i) the date of redemption (which
shall be the next succeeding Sinking Fund Payment Date), (ii) the place of
redemption (which shall be the main office of the Principal Trustee in the city
of Chicago, Illinois, (iii) the Sinking Fund Redemption Price, (iv) the numbers
and principal amount of Bonds of the New Series of each owner to be then
redeemed in whole or in part and (v) that on the date fixed for redemption
interest on such Bonds of the New Series, or portion of Bonds of the New Series
to be redeemed, shall cease.
In case any Bond of the New Series shall be redeemed in part only, said
notice shall also specify (i) the principal amount thereof to be redeemed and
(ii) that, upon the presentation of such Bond of the New Series for partial
redemption, a new Bond or Bonds of the New Series of an aggregate principal
amount equal to the unredeemed portion of such Bond of the New Series will be
issued in lieu thereof; and in such case the Company shall execute, and the
Principal Trustee shall authenticate and deliver to or upon the written order of
the owner of any such Bond of the New Series, at the expense of the Company, a
Bond or Bonds of the New Series (but only in authorized denominations) for the
principal amount of the unredeemed portion
<PAGE>
-20-
of such Bond of the New Series or, at the option of the owner of such Bond, the
Principal Trustee shall, upon presentation thereof for the purpose, make a
notation thereon of the payment of the portion thereof so called for partial
redemption.
In case the Company shall fail to give to the Principal Trustee evidence to
its satisfaction that notice of redemption as in this Article provided will be
given, the Principal Trustee may, at the expense of the Company, give such
notice with the same effect as if such notice had been given by the Company as
hereinbefore required.
Notice of redemption having been given in the manner hereinabove provided,
the Bonds of the New Series (or the specified portions thereof) so to be
redeemed shall, on the Sinking Fund Payment Date designated in such notice,
become due and payable at the Sinking Fund Redemption Price; and from and after
such Sinking Fund Payment Date so designated, interest on the Bonds of the New
Series so called for redemption (or in the case of a partial redemption, on the
portion thereof to be redeemed) shall cease to accrue, unless default shall be
made by the Company in the payment of the Sinking Fund Redemption Price.
All Bonds of the New Series redeemed or retired under the provisions of
this Article shall forthwith be cancelled, and the Principal Trustee shall note
on its records the fact of such cancellation and shall deliver the Bonds of the
New Series so cancelled to or upon the written order of the Company.]*P*
ARTICLE IV
Dividends and Similar Distributions.
The Company hereby covenants that, so long as any of the Bonds of the New
Series shall remain outstanding, the covenants and agreements of the Company set
forth in ss. 4.11 of the Original Indenture as heretofore supplemented (except
for the last sentence of Section 4.11 of the Original Indenture) shall be and
remain in full force and effect and be duly observed and complied with by the
Company, notwithstanding that no First Mortgage Bonds, 3 1/2% Series due 1969,
remain outstanding.
<PAGE>
-21-
ARTICLE V
The Trustees.
The Trustees accept the trusts created by this Supplemental Indenture upon
the terms and conditions hereof and agree to perform such trusts upon the terms
and conditions set forth in the Original Indenture as heretofore supplemented
and in this Supplemental Indenture set forth. In general, each and every term
and condition contained in Article 13 of the Original Indenture shall apply to
this Supplemental Indenture with the same force and effect as if the same were
herein set forth in full, with such omissions, variations and modifications
thereof as may be appropriate to make the same conform to this Supplemental
Indenture.
ARTICLE VI
Miscellaneous Provisions.
Section 1. If the date for making any payment of principal,
interest, or premium, if any, or the last date for performance of any act or the
exercising of any right, as provided in this Supplemental Indenture, shall be a
legal holiday or a day on which banking institutions in the city of Chicago,
Illinois, are authorized by law to remain closed, such payment may be made or
act performed or right exercised on the next succeeding day not a legal holiday
or a day on which such banking institutions are authorized by law to remain
closed, with the same force and effect as if done on the nominal date provided
in this Supplemental Indenture, and no interest shall accrue for the period
after such nominal date.
Section 2. The Original Indenture as heretofore and hereby
supplemented and amended is in all respects ratified and confirmed; and the
Original Indenture, this Supplemental Indenture and all other indentures
supplemental to the Original Indenture shall be read, taken and construed as one
and the same instrument. Neither the execution of this Supplemental Indenture
nor anything herein contained shall be construed to impair the lien of the
Original Indenture as heretofore supplemented on any of the property subject
thereto, and such lien shall remain in full force and effect as security for all
bonds now outstanding or hereafter issued under the Indenture. All terms defined
in Article 1 of the Original Indenture, as heretofore supplemented, for all
purposes of this Supplemental Indenture, shall have the meanings therein
specified, unless the context otherwise requires.
<PAGE>
-22-
Section 3. This Supplemental Indenture may be simultaneously
executed in any number of counterparts, and all said counterparts executed and
delivered, each as an original, shall constitute but one and the same instrument
Section 4. Nothing in this Supplemental Indenture contained, shall,
or shall be construed to, confer upon any person other than a holder of bonds
issued under the Indenture, the Company and the Trustees any right or interest
to avail himself of any benefit under any provision of the Indenture, as
heretofore supplemented and amended, or of this Supplemental Indenture.
<PAGE>
IN WITNESS WHEREOF, The Empire District Electric Company, party of the
first part, has caused its corporate name to be hereunto affixed and this
instrument to be signed by its President or a Vice President, and its corporate
seal to be hereunto affixed and attested by its Secretary or an Assistant
Secretary for and in its behalf; and Harris Trust and Savings Bank and State
Street Bank and Trust Company of Missouri, N.A., parties of the second part,
have each caused its corporate name to be hereunto affixed, and this instrument
to be signed by its President or a Vice President and its corporate seal to be
hereunto affixed and attested by its Secretary or an Assistant Secretary for and
in its behalf, all as of the day and year first above written.
THE EMPIRE DISTRICT ELECTRIC COMPANY
By _________________________
Name:
Title:
[Corporate Seal]
Attest:
- -------------------------------
Name:
Title:
Signed, sealed and delivered by THE EMPIRE DISTRICT ELECTRIC COMPANY in the
presence of:
- -------------------------------
Name:
- -------------------------------
Name:
<PAGE>
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By___________________________
Name:
Title:
[Corporate Seal]
Attest:
- -------------------------------
Name:
Title:
Signed, sealed and delivered by
HARRIS TRUST AND SAVINGS BANK
in the presence of:
- -------------------------------
Name:
- -------------------------------
Name:
<PAGE>
STATE STREET BANK AND
TRUST COMPANY OF
MISSOURI, N.A.
as Trustee
By_______________________
Name:
Title:
[Corporate Seal]
Attest:
- -------------------------------
Name:
Title:
Signed, sealed and delivered by
STATE STREET BANK AND
TRUST COMPANY OF
MISSOURI, N.A. in
the presence of:
- -------------------------------
Name:
- -------------------------------
Name:
<PAGE>
State of Missouri )
: ss.:
County of Jasper )
Be It Remembered, and I do hereby certify, that on this _____ day of _____,
before me, a Notary Public in and for the County and State aforesaid, personally
appeared __________, the ___________ of The Empire District Electric Company, a
Kansas corporation __________ and __________ , the __________ of said
corporation, who are both to me personally known, and both personally known to
me to be such officers and to be the identical persons whose names are
subscribed to the foregoing instrument as such __________ and __________,
respectively, and as the persons who subscribed the name and affixed the seal of
said The Empire District Electric Company, one of the makers thereof, to the
foregoing instrument as its ___________ and __________, and they each
acknowledged to me that they, being thereunto duly authorized, executed the same
for the uses, purposes and consideration therein set forth and expressed, and in
the capacities therein stated, as their free and voluntary act and deed, and as
the free and voluntary act and deed of said corporation.
And the said __________ and __________, being each duly sworn by me,
severally deposed and said: that they reside in ___________; that they were at
that time and __________, of said corporation; that they knew the corporate seal
of said corporation, and that the seal affixed to said instrument was such
corporate seal, and was thereto affixed by said ___________, and the said
instrument was signed by said __________, in pursuance of the power and
authority granted them by the By-Laws of said corporation, and by authority of
the Board of Directors thereof.
In Testimony Whereof, I have hereunto set my hand and affixed my official
and notarial seal at my office in said County and State the day and year last
above written.
My commission expires
[Notarial Seal]
----------------------
Notary Public
<PAGE>
State of Illinois )
: ss.:
County of Cook )
Be It Remembered, and I do hereby certify, that on the _____ day of _____ ,
before me, a Notary Public in and for the County and State aforesaid, personally
appeared __________, __________ of Harris Trust and Savings Bank, an Illinois
corporation and __________ of said corporation, who are both to me personally
known, and both personally known to me to be such officers and to be the
identical persons whose names are subscribed to the foregoing instrument as such
__________ and _________, respectively, and as the persons who subscribed the
name and affixed the seal of said Harris Trust and Savings Bank one of the
makers thereof, to the foregoing instrument as its __________ and __________,
and they each acknowledged to me that they, being thereunto duly authorized,
executed the same for the uses, purposes and consideration therein set forth and
expressed, and in the capacities therein stated, as their free and voluntary act
and deed, and as the free and voluntary act and deed of said corporation.
And the said __________ and __________, being each duly sworn by me,
severally deposed and said: that they reside in __________; that they were at
that time respectively __________ and __________, of said corporation; that they
knew the corporate seal of said corporation, and that the seal affixed to said
instrument was such corporate seal, and was thereto affixed by said __________,
and the said instrument was signed by said __________, in pursuance of the power
and authority granted them by the By-Laws of said corporation, and by authority
of the Board of Directors thereof.
In Testimony Whereof, I have hereunto set my hand and affixed my official
and notarial seal at my office in said County and State the day and year last
above written.
My commission expires
[Notarial Seal]
----------------------
Notary Public
<PAGE>
State of Missouri )
: ss.:
City of St. Louis )
Be It Remembered, and I do hereby certify, that on this _____ day of _____,
before me, a Notary Public in and for the County and State aforesaid, personally
appeared __________, __________ of State Street Bank and Trust Company of
Missouri, N.A., a national banking association organized under the laws of the
United States of America, and _________, __________ of said corporation, who are
both to me personally known, and both personally known to me to be such officers
and to be the identical persons whose names are subscribed to the foregoing
instrument as such ___________ and __________, respectively, and as the persons
who subscribed the name and affixed the seal of said State Street Bank and Trust
Company of Missouri, N.A., one of the makers thereof, to the foregoing
instrument as its __________ and ___________, and they each acknowledged to me
that they, being thereunto duly authorized, executed the same for the uses,
purposes and consideration therein set forth and expressed, and in the
capacities therein stated, as their free and voluntary act and deed, and as the
free and voluntary act and deed of said corporation.
And the said __________ and __________ , being each duly sworn by me,
severally deposed and said: that they reside in ___________; that they were at
that time respectively __________ and __________ of said corporation; that they
knew the corporate seal of said corporation, and that the seal affixed to said
instrument was such corporate seal, and was thereto affixed by said __________,
and the said instrument was signed by said __________, in pursuance of the power
and authority granted them by the By-Laws of said corporation, and by authority
of the Board of Directors thereof.
In Testimony Whereof, I have hereunto set my hand and affixed my official
seal at my office in said County and State the day and year last above written.
My commission expires
[Notarial Seal]
-----------------------
Notary Public
<PAGE>
LEGEND
The following descriptions correspond to the dates, amounts and other
information not contained in this Form of Supplemental Indenture, and are to be
determined as appropriate for the series of bonds created under the designed
Supplemental Indenture.
*A* Insert applicable number of the Supplemental Indenture.
*B* Insert applicable date of the Supplemental Indenture.
*C* Insert principal amount authorized by applicable Supplemental Indenture.
*D* Insert applicable interest rate.
*E* Insert applicable maturity date of series.
*F* Bracketed information to be included or deleted based on the provisions of
the Bonds.
*G* Insert applicable information concerning preceding Supplemental Indentures.
*H* Insert applicable interest payment dates.
*I* Insert first interest payment date.
*J* Insert applicable record dates.
*K* Insert initial applicable authentication date.
*L* Insert applicable date for the first sinking fund redemption including
year, month and day.
*M* Insert applicable annual sinking fund date, month and day.
*N* Delete or revise to reflect actual redemption provisions, if any.
*O* Delete or revise provision to reflect actual refunding protection, if any.
*P* Delete or revise to reflect actual sinking fund provisions, if any.
<PAGE>
-2-
*Q* Insert applicable principal amount.
*R* Insert applicable date.
*S* Insert applicable principal amount.
*T* Insert applicable year.
*U* Insert applicable amount.
*V* If the Supplemental Indenture relates to Secured Medium-Term Notes, replace
bracketed information with "Secured Medium-Term Notes, Series *W*".
*W* Insert applicable series designation.
*X* Bracketed information to be included if the Supplemental Indenture relates
to Secured Medium-Term Notes.
*Y* Insert applicable minimum principal amount.
*Z* Bracketed information will replace preceding sentence if the Supplemental
Indenture relates to Secured Medium-Term Notes.
Exhibit 4(v)
===============================================================================
THE EMPIRE DISTRICT ELECTRIC COMPANY
DEBT SECURITIES
------------------------------------
INDENTURE
Dated as of September 10, 1999
------------------------------------
Norwest Bank Minnesota, National Association, as Trustee
================================================================================
<PAGE>
PARTIAL CROSS-REFERENCE TABLE
Indenture Section TIA Section
2.05........................................ 317(b)
2.06........................................ 312(a), 313(c)
2.11........................................ 316(a) (last sentence)
4.04........................................ 314(a)(4)
4.05........................................ 314(a)(1)
6.03........................................ 317(a)(1)
6.04........................................ 316(a)(1)(B)
6.05........................................ 316(a)(1)(A)
6.07........................................ 317(a)(1)
7.01........................................ 315(a), 315(d)
7.04........................................ 315(b)
7.05........................................ 313(a), 313(d)
7.07........................................ 310(a), 310(b)
7.09........................................ 310(a)(2)
8.02........................................ 310(a), 310(b)
10.04....................................... 316(c)
11.01....................................... 318(a)
11.02....................................... 313(c)
11.03....................................... 314(c)(1), 314(c)(2)
11.04....................................... 314(e)
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 --DEFINITIONS
SECTION 1.01. Definitions...................................................1
SECTION 1.02. Other Definitions.............................................3
SECTION 1.03. Rules of Construction.........................................4
ARTICLE 2 --THE SECURITIES
SECTION 2.01. Issuable in Series............................................5
SECTION 2.02. Execution and Authentication..................................7
SECTION 2.03. Registrar and Transfer, Paying and Conversion Agents
and Other Agents............................................7
SECTION 2.04. Bearer Securities.............................................8
SECTION 2.05. Paying Agent to Hold Money in Trust...........................9
SECTION 2.06. Securityholder Lists..........................................9
SECTION 2.07. Transfer and Exchange........................................10
SECTION 2.08. Replacement Securities.......................................10
SECTION 2.09. Outstanding Securities.......................................11
SECTION 2.10. Discounted Debt Securities...................................11
SECTION 2.11. Treasury Securities..........................................11
SECTION 2.12. Global Securities............................................11
SECTION 2.13. Temporary Securities.........................................12
SECTION 2.14. Cancellation.................................................12
SECTION 2.15. Defaulted Interest...........................................13
ARTICLE 3 --REDEMPTION
SECTION 3.01. Notices to Trustee...........................................13
SECTION 3.02. Selection of Securities to Be Redeemed.......................13
SECTION 3.03. Notice of Redemption.........................................14
SECTION 3.04. Effect of Notice of Redemption...............................15
SECTION 3.05. Payment of Redemption Price..................................15
SECTION 3.06. Securities Redeemed in Part..................................16
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Page
ARTICLE 4 --COVENANTS
SECTION 4.01. Payment of Securities........................................16
SECTION 4.02. Overdue Interest.............................................16
SECTION 4.03. No Lien Created, etc.........................................16
SECTION 4.04. Compliance Certificate.......................................16
SECTION 4.05. SEC Reports..................................................17
ARTICLE 5 --SUCCESSORS
SECTION 5.01. When Company May Merge, etc..................................17
ARTICLE 6 --DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default............................................18
SECTION 6.02. Acceleration.................................................19
SECTION 6.03. Other Remedies...............................................20
SECTION 6.04. Waiver of Past Defaults......................................20
SECTION 6.05. Control by Majority..........................................20
SECTION 6.06. Limitation on Suits..........................................21
SECTION 6.07. Collection Suit by Trustee...................................21
SECTION 6.08. Priorities...................................................21
ARTICLE 7 --TRUSTEE
SECTION 7.01. Rights of Trustee............................................22
SECTION 7.02. Individual Rights of Trustee.................................23
SECTION 7.03. Trustee's Disclaimer.........................................23
SECTION 7.04. Notice of Defaults...........................................23
SECTION 7.05. Reports by Trustee to Holders................................23
SECTION 7.06. Compensation and Indemnity...................................24
SECTION 7.07. Replacement of Trustee.......................................24
SECTION 7.08. Successor Trustee by Merger, etc.............................25
SECTION 7.09. Trustee's Capital and Surplus................................26
ARTICLE 8 --DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance...................................................26
SECTION 8.02. Conditions to Defeasance.....................................26
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Page
SECTION 8.03. Application of Trust Money...................................27
SECTION 8.04. Repayment to Company.........................................28
ARTICLE 9 --CONVERSION
SECTION 9.01. Conversion Privilege.........................................28
SECTION 9.02. Conversion Procedure.........................................28
SECTION 9.03. Taxes on Conversion..........................................29
SECTION 9.04. Company Determination Final..................................30
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer..................30
SECTION 9.06. Company to Provide Conversion Securities.....................30
SECTION 9.07. Cash Settlement Option.......................................30
SECTION 9.08. Adjustment in Conversion Rate for Change in Capital Stock....31
SECTION 9.09. Adjustment in Conversion Rate for Common Stock Issued Below
Market Price...............................................32
SECTION 9.10. Adjustment for Other Distributions...........................35
SECTION 9.11. Voluntary Adjustment.........................................35
SECTION 9.12. When Adjustment May Be Deferred..............................36
SECTION 9.13. When No Adjustment Required..................................36
SECTION 9.14. Notice of Adjustment.........................................36
SECTION 9.15. Notice of Certain Transactions...............................37
SECTION 9.16. Reorganization of the Company................................37
ARTICLE 10 --AMENDMENTS
SECTION 10.01. Without Consent of Holders..................................37
SECTION 10.02. With Consent of Holders.....................................38
SECTION 10.03. Compliance with Trust Indenture Act.........................39
SECTION 10.04. Effect of Consents..........................................39
SECTION 10.05. Notation on or Exchange of Securities.......................39
SECTION 10.06. Trustee Protected...........................................40
ARTICLE 11 --MISCELLANEOUS
SECTION 11.01. Trust Indenture Act.........................................40
SECTION 11.02. Notices ....................................................40
SECTION 11.03. Certificate and Opinion as to Conditions Precedent..........41
SECTION 11.04. Statements Required in Certificate or Opinion...............42
SECTION 11.05. Rules by Company and Agents.................................42
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Page
SECTION 11.06. Legal Holidays..............................................42
SECTION 11.07. No Recourse Against Others..................................43
SECTION 11.08. Duplicate Originals; Counterparts...........................43
SECTION 11.09. Governing Law...............................................43
SIGNATURES.................................................................S-1
EXHIBIT A: A Form of Registered Security..................................A-1
EXHIBIT B: A Form of Bearer Security......................................B-1
Notes to Exhibits A and B
EXHIBIT C: Assignment Form................................................C-1
EXHIBIT D: Conversion Notice..............................................D-1
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<PAGE>
INDENTURE dated as of September 10, 1999 between THE EMPIRE DISTRICT
ELECTRIC COMPANY, a Kansas corporation (hereinafter called the "Company"), and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION (the "Trustee").
Each party agrees as follows for the benefit of the Holders (as defined
below) of the Company's debt securities issued under this Indenture:
ARTICLE 1 -- DEFINITIONS
SECTION 1.01. Definitions.
"Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
"Agent" means any Registrar, Transfer Agent, Paying Agent, Conversion Agent
or other Agent appointed by the Company.
"Authorized Newspaper" means a newspaper that is:
(1) printed in the English language or in an official language of the
country of publication;
(2) customarily published on each business day in the place of
publication; and
(3) of general circulation in the relevant place or in the financial
community of such place.
Whenever successive publications in an Authorized Newspaper are required,
they may be made on the same or different business days and in the same or
different Authorized Newspapers.
"Bearer Security" means a Security payable to bearer.
"Board" means the Board of Directors of the Company or any authorized
committee of the Board.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of any person and all
warrants or options to acquire such capital stock.
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"Common Stock" means the Common Stock, par value $1.00 per share, of the
Company.
"Company" means the party named as such above until a successor replaces it
and thereafter means the successor.
"Conversion Rate" means such number or amount of shares of Common Stock or
other equity or debt securities for which $1,000 aggregate principal amount of
Securities of any series is convertible, initially as stated in the Securities
Resolution authorizing the series and as adjusted pursuant to the terms of this
Indenture and the Securities Resolution.
"coupon" means an interest coupon for a Bearer Security.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default (as defined below).
"Discounted Debt Security" means a Security where the amount of principal
due upon acceleration is less than the stated principal amount.
"Holder" or "Securityholder" means the person in whose name a Registered
Security is registered and the bearer of a Bearer Security or coupon.
"Indenture" means this Indenture and any Securities Resolution as amended
from time to time.
"Lien" means any mortgage, pledge, security interest or other lien.
"Officer" means the Chairman, any Vice-Chairman, the President, any
Executive or Senior Vice President, any Vice-President, the Treasurer or any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee, and delivered to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"principal" of a debt security means the principal of the security plus the
premium, if and when applicable, on the security.
"Registered Security" means a Security registered as to principal and
interest by the Registrar.
<PAGE>
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"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities issued under this Indenture.
"Securities Resolution" means a resolution adopted by the Board or by a
committee of Officers or an Officer pursuant to Board delegation authorizing a
series or a supplemental indenture authorizing a series executed by an
authorized Officer.
"series" means a series of Securities or the Securities of the series.
"Subsidiary" means a corporation a majority of whose Voting Stock is owned
by the Company or a Subsidiary.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ss.
77aaa-77bbbb), as amended.
"Trading Day" means each day on which the securities exchange or quotation
system which is used to determine the Market Price is open for trading or
quotation.
"Trustee" means the party named as such above until a successor replaces it
and thereafter means the successor.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"United States" means the United States of America, its territories and
possessions and other areas subject to its jurisdiction.
"Voting Stock" means capital stock having voting power under ordinary
circumstances to elect directors.
"Yield to Maturity" means the yield to maturity on a Security at the time
of its issuance or at the most recent determination of interest on the Security.
SECTION 1.02. Other Definitions.
Term Defined in Section
"actual knowledge" 7.01
"Bankruptcy Law" 6.01
"Canceled Redemption" 3.04
"Conditional Redemption" 3.04
"Conversion Agent" 2.03
<PAGE>
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Term Defined in Section
"Conversion Date" 9.02
"Conversion Notice" 9.02
"Conversion Right" 9.01
"covenant defeasance option" 8.01
"Custodian" 6.01
"Event of Default" 6.01
"legal defeasance option" 8.01
"Legal Holiday" 11.06
"Market Price" 9.07
"Paying Agent" 2.03
"Price Per Share" 9.09
"Registrar" 2.03
"Transfer Agent" 2.03
"Treasury Regulations" 2.04
"U.S. Government Obligations" 8.02
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles in the
United States;
(3) generally accepted accounting principles are those applicable from
time to time;
(4) all terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings assigned to them by such definitions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in the plural include
the singular.
<PAGE>
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ARTICLE 2 -- THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities that may be issued under this
Indenture is unlimited. The Securities may be issued from time to time in one or
more series. Each series shall be created by a Securities Resolution that
establishes the terms of the series, which may include the following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate or rates, if any, or method of calculating the
interest rate or rates;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Registered Securities;
(6) the dates when principal and interest are payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are payable;
(9) the Registrar, Transfer Agent and Paying Agent;
(10) the terms of any mandatory or optional redemption by the Company
including any sinking fund;
(11) the terms of any redemption at the option of Holders;
(12) the denominations in which Securities are issuable;
(13) whether Securities will be issuable as Registered Securities, Bearer
Securities or uncertificated Securities;
(14) whether and upon what terms Registered Securities, Bearer Securities
and uncertificated Securities may be exchanged;
(15) whether any Securities will be represented by a Security in global
form;
<PAGE>
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(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) the currencies (including any composite currency) in which principal
or interest may be paid;
(19) if payments of principal or interest may be made in a currency other
than that in which Securities are denominated, the manner for
determining such payments;
(20) if amounts of principal or interest may be determined by reference to
an index, formula or other method, the manner for determining such
amounts;
(21) provisions for electronic issuance of Securities or for Securities in
uncertificated form;
(22) the portion of principal payable upon acceleration of a Discounted
Debt Security;
(23) whether any Events of Default or covenants in addition to or in lieu
of those set forth in this Indenture apply;
(24) whether and upon what terms Securities may be defeased;
(25) the forms of the Securities or any coupon, which may be in the form of
Exhibit A or B;
(26) any terms that may be required by or advisable under U.S. or other
applicable laws or regulations;
(27) whether and upon what terms the Securities will be convertible into or
exchangeable for Common Stock of the Company or other equity or debt
securities, which may include the terms provided in Article 9;
(28) the ranking of the Securities, including the relative degree, if any,
to which the Securities of such series shall be subordinated to one or
more other series of Securities in right of payment, whether
outstanding or not;
<PAGE>
-7-
(29) any provisions relating to extending or shortening the date on which
the principal and premium, if any, of the Securities of such series is
payable;
(30) any provisions relating to the deferral of payment of any interest;
and
(31) any other terms not inconsistent with this Indenture.
All Securities of one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
The creation and issuance of a series and the authentication and delivery
thereof are not subject to any conditions precedent.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities by manual or facsimile signature.
The Company's seal shall be reproduced on the Securities. An Officer shall sign
any coupons by manual or facsimile signature.
If an Officer whose signature is on a Security or its coupons no longer
holds that office at the time the Security is authenticated or delivered, the
Security and coupons shall nevertheless be valid.
A Security and its coupons shall not be valid until the Security is
authenticated by the manual signature of the Registrar. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated the date of its original issuance or as
provided in the Securities Resolution.
Securities may have notations, legends or endorsements required by law,
stock exchange rule, agreement or usage.
In the event Securities are issued in electronic or other uncertificated
form, such Securities may be validly issued without the signatures or seal
contemplated by this Section 2.02.
SECTION 2.03. Registrar and Transfer, Paying and Conversion Agents and Other
Agents.
The Company shall maintain an office or agency where Securities may be
authenticated ("Registrar"), where Securities may be presented for registration
of transfer or
<PAGE>
-8-
for exchange ("Transfer Agent"), where Securities may be presented for payment
("Paying Agent") and where Securities may be presented for conversion
("Conversion Agent"). Whenever the Company must issue or deliver Securities
pursuant to this Indenture, the Registrar shall authenticate the Securities at
the Company's request. The Transfer Agent shall keep a register of the
Securities and of their transfer and exchange.
The Trustee shall be, and is hereby appointed as, Registrar. The Company
may appoint more than one Transfer Agent, Paying Agent or Conversion Agent or
other Agent for a series. The Company shall notify the Trustee of the name and
address of any Agent not a party to this Indenture. If the Company does not
appoint or maintain a Transfer Agent, Paying Agent or Conversion Agent for a
series, the Trustee shall act as such.
SECTION 2.04. Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or exchanges of and
payments on Bearer Securities. Therefore, except as provided below:
(1) Bearer Securities will be offered, sold or delivered only outside the
United States and will be delivered in connection with their original
issuance only upon presentation of a certificate in a form prescribed
by the Company to comply with U.S. laws and regulations.
(2) Bearer Securities will not be issued in exchange for Registered
Securities.
(3) All payments of principal and interest (including original issue
discount) on Bearer Securities will be made outside the United States
by a Paying Agent located outside the United States unless the Company
determines that:
(A) such payments may not be made by such Paying Agent because the
payments are illegal or prevented by exchange controls as
described in Treasury Regulation ss. 1.163-5(c)(2)(v); and
(B) making the payments in the United States would not have an
adverse tax effect on the Company.
If there is a change in the relevant provisions of U.S. laws or Treasury
Regulations or the judicial or administrative interpretation thereof, a
restriction set forth in paragraph (1), (2) or (3) above will not apply to a
series if the Company determines that the relevant provisions no longer apply to
the series or that failure to comply with the relevant provisions
<PAGE>
-9-
would not have an adverse tax effect on the Company or on Securityholders or
cause the series to be treated as "registration-required" obligations under U.S.
law.
The Company shall notify the Trustee of any determinations by the Company
under this Section.
"Treasury Regulations" means regulations of the U.S. Treasury Department
under the Internal Revenue Code of 1986, as amended.
SECTION 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a series other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the persons entitled thereto all money held by the Paying Agent for
the payment of principal of or interest on the series, and will notify the
Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to
pay all money so held by it to the Trustee. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent shall have no further liability for the money.
If the Company or an Affiliate acts as Paying Agent for a series, it shall
segregate and hold as a separate trust fund all money held by it as Paying Agent
for the series.
The Company may elect not to exchange or register the transfer of any
Security for a period of 15 days before a selection of Securities to be
redeemed.
SECTION 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Transfer Agent, the Company shall
furnish to the Trustee semiannually and at such other times as the Trustee may
request a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Registered Securities and
Holders of Bearer Securities whose names are on the list referred to below.
The Transfer Agent shall keep a list of the names and addresses of Holders
of Bearer Securities who file a request to be included on such list. A request
will remain in effect for two years but successive requests may be made.
<PAGE>
-10-
Whenever the Company or the Trustee is required to mail a notice to all
Holders of Registered Securities of a series, it also shall mail the notice to
Holders of Bearer Securities of the series whose names are on the list.
Whenever the Company is required to publish a notice to all Holders of
Bearer Securities of a series, it also shall mail the notice to such of them
whose names are on the list.
SECTION 2.07. Transfer and Exchange.
Where Registered Securities of a series are presented to the Transfer Agent
with a request to register a transfer or to exchange them for an equal principal
amount of Registered Securities of other denominations of the same series, the
Transfer Agent shall register the transfer or make the exchange if its
requirements for such transactions are met. Where Bearer Securities of a series
are presented to the Transfer Agent with a request to exchange them for an equal
principal amount of Bearer Securities of other denominations of the same series,
the Transfer Agent shall make the exchange if its requirements for such
transactions are met.
The Transfer Agent may require a Holder to pay a sum sufficient to cover
any taxes imposed on a transfer or exchange.
If a series provides for Registered and Bearer Securities and for their
exchange, Bearer Securities may be exchanged for Registered Securities and
Registered Securities may be exchanged for Bearer Securities as provided in the
Securities or the Securities Resolution if the requirements of the Transfer
Agent for such transactions are met and in the case of the exchange of
Registered Securities for Bearer Securities if Section 2.04 permits the
exchange.
SECTION 2.08. Replacement Securities.
If the Holder of a Security or coupon claims that it has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the Company or
the Trustee that the Security or coupon has been acquired by a bona fide
purchaser, the Company shall issue a replacement Security or coupon if the
Company and the Trustee receive:
(1) evidence satisfactory to them of the loss, destruction or taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses and any taxes for
replacing the Security or coupon.
<PAGE>
-11-
A replacement Security shall have coupons attached corresponding to those, if
any, on the replaced Security.
Every replacement Security or coupon is an additional obligation of the
Company.
SECTION 2.09. Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated
by the Registrar except for those canceled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
Subject to Section 2.11, a Security does not cease to be outstanding
because the Company or an Affiliate holds the Security.
SECTION 2.10. Discounted Debt Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, the principal
amount of a Discounted Debt Security shall be the amount of principal that would
be due as of the date of such determination if payment of the Security were
accelerated on that date.
SECTION 2.11. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded.
SECTION 2.12. Global Securities.
If the Securities Resolution so provides, the Company may issue some or all
of the Securities of a series in temporary or permanent global form. A global
Security may be in registered form, in bearer form with or without coupons or in
non-definitive form. A global Security shall represent that amount of Securities
of a series as specified in the global Security
<PAGE>
-12-
or as endorsed thereon from time to time. At the Company's request, the
Registrar shall endorse a global Security to reflect the amount of any increase
or decrease in the Securities represented thereby.
The Company may issue a global Security only to a depository designated by
the Company. A depository may transfer a global Security only as a whole to its
nominee or to a successor depository.
The Securities Resolution may establish, among other things, the manner of
paying principal and interest on a global Security and whether and upon what
terms a beneficial owner of an interest in a global Security may exchange such
interest for definitive Securities.
The Company, an Affiliate, the Trustee and any Agent shall not be
responsible for any acts or omissions of a depository, for any depository
records of beneficial ownership interests or for any transactions between the
depository and beneficial owners.
SECTION 2.13. Temporary Securities.
Until definitive Securities of a series are ready for delivery, the Company
may use temporary Securities. Temporary Securities shall be substantially in the
form of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Temporary Securities may be in global
form. Temporary Bearer Securities may have one or more coupons or no coupons.
Without unreasonable delay, the Company shall deliver definitive Securities in
exchange for temporary Securities.
SECTION 2.14. Cancellation.
The Company at any time may deliver Securities to the Registrar for
cancellation. The Transfer Agent and the Paying Agent shall forward to the
Registrar any Securities and coupons surrendered to them for payment, exchange
or registration of transfer. The Registrar shall cancel all Securities or
coupons surrendered for payment, registration of transfer, exchange or
cancellation. The Registrar also will cancel all Bearer Securities and unmatured
coupons unless the Company requests the Registrar to hold the same for
redelivery. Any Bearer Securities so held shall be considered delivered for
cancellation under Section 2.09. The Registrar shall destroy canceled Securities
and coupons subject to the record retention requirements of the Securities
Exchange Act of 1934.
Unless the Securities Resolution otherwise provides, the Company may not
issue new Securities to replace Securities that the Company has paid or that the
Company has delivered to the Registrar for cancellation.
<PAGE>
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SECTION 2.15. Defaulted Interest.
If the Company defaults in a payment of interest on Registered Securities,
it need not pay the defaulted interest to Holders on the regular record date.
The Company may fix a special record date for determining Holders entitled to
receive defaulted interest, or the Company may pay defaulted interest in any
other lawful manner.
ARTICLE 3 -- REDEMPTION
SECTION 3.01. Notices to Trustee.
Securities of a series that are redeemable before maturity shall be
redeemable in accordance with their terms and, unless the Securities Resolution
otherwise provides, in accordance with this Article.
In the case of a redemption by the Company, the Company shall notify the
Trustee of the redemption date and the principal amount of Securities to be
redeemed. The Company shall notify the Trustee at least 45 days before the
redemption date unless a shorter notice is satisfactory to the Trustee.
If the Company is required to redeem Securities, it may reduce the
principal amount of Securities required to be redeemed to the extent that it is
permitted a credit against such redemption requirement by the terms of the
Securities Resolution and notifies the Trustee of the amount of such credit and
the basis for it. If the reduction is based on a credit for acquired or redeemed
Securities that the Company has not previously delivered to the Registrar for
cancellation, the Company shall deliver the Securities at the same time as the
notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select the Securities to be redeemed by a method the Trustee considers
fair and appropriate. The Trustee shall make the selection from Securities of
the series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities having
denominations larger than the minimum denomination for the series. Securities
and portions thereof selected for redemption shall be in amounts equal to the
minimum denomination for the series or an integral multiple thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
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SECTION 3.03. Notice of Redemption.
At least 30 but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption by first-class mail to each Holder of
Registered Securities whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company shall publish a notice
of redemption in an Authorized Newspaper as provided in the Securities.
A notice shall identify the Securities of the series to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together with all coupons, if
any, maturing after the redemption date, must be surrendered to the
Paying Agent to collect the redemption price;
(5) that interest on Securities called for redemption ceases to accrue on
and after the redemption date;
(6) whether the redemption by the Company is mandatory or optional; and
(7) whether the redemption is conditional as provided in Section 3.04, and
if so, the terms of the conditions, and that, if the conditions are
not satisfied or are not waived by the Company, the Securities will
not be redeemed and such a failure to redeem will not constitute an
Event of Default.
A redemption notice given by publication need not identify Registered
Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
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SECTION 3.04. Effect of Notice of Redemption.
Except as provided below, once notice of redemption is given, Securities
called for redemption become due and payable on the redemption date at the
redemption price stated in the notice.
A notice of redemption may provide that it is subject to the occurrence of
any event before the date fixed for such redemption as described in such notice
("Conditional Redemption"), and such notice of Conditional Redemption shall be
of no effect unless all such conditions to the redemption have occurred on or
before such date or have been waived by the Company in its sole discretion. If
conditions to a Conditional Redemption are not satisfied and have not been
waived by the Company ("Canceled Redemption"), within one business day after the
date fixed for redemption the Company shall so notify the Trustee. In the event
that any such Holder shall have surrendered Securities to the Trustee in
contemplation of the Conditional Redemption prior to receipt of notice of a
Canceled Redemption, the Trustee shall return the Securities to their respective
registered Holders as soon as practicable and, in any case, within 10 business
days of the date on which redemption was to have occurred.
SECTION 3.05. Payment of Redemption Price.
On or before the redemption date, the Company shall deposit with the Paying
Agent money sufficient to pay the redemption price of and accrued interest on
all Securities to be redeemed on that date.
When the Holder of a Security surrenders it for redemption in accordance
with the redemption notice, the Company shall pay to the Holder on the
redemption date the redemption price and accrued interest to such date, except
that:
(1) the Company will pay any such interest (except defaulted interest) to
Holders on the record date of Registered Securities if the redemption
date occurs on an interest payment date; and
(2) the Company will pay any such interest to Holders of coupons that
mature on or before the redemption date upon surrender of such coupons
to the Paying Agent.
Coupons maturing after the redemption date on a called Security are void
absent a payment default on that date. Nevertheless, if a Holder surrenders for
redemption a Bearer Security missing any such coupons, the Company may deduct
the face amount of such coupons from the redemption price. If thereafter the
Holder surrenders to the Paying Agent the missing coupons, the Company will
return the amount so deducted. The Company may
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waive surrender of the missing coupons if it receives an indemnity bond
satisfactory to the Company.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
deliver to the Holder a new Security of the same series equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE 4 -- COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on a series in
accordance with the terms of the Securities for the series, any related coupons,
and this Indenture. Principal and interest on a series shall be considered paid
on the date due if the Paying Agent for the series holds on that date money
sufficient to pay all principal and interest then due on the series.
SECTION 4.02. Overdue Interest.
Unless the Securities Resolution otherwise provides, the Company shall pay
interest on overdue principal of a Security of a series at the rate (or Yield to
Maturity in the case of a Discounted Debt Security) borne by the series; the
Company shall pay interest on overdue installments of interest at the same rate
or Yield to Maturity to the extent lawful.
SECTION 4.03. No Lien Created, etc.
This Indenture and the Securities do not create a Lien, charge or
encumbrance on any property of the Company or any Subsidiary.
SECTION 4.04. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, a brief certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company, as to the signer's knowledge of the Company's compliance with
all conditions and covenants under this Indenture (determined without regard to
any period of grace or requirement of notice provided herein).
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Any other obligor on the Securities shall also deliver to the Trustee such
a certificate as to its compliance with this Indenture within 120 days after the
end of each of its fiscal years.
The certificates need not comply with Section 11.04.
SECTION 4.05. SEC Reports.
The Company shall file with the Trustee, within 15 days after the Company
is required to file the same with the SEC, copies of the annual reports and of
the information, documents, and other reports (or such portions of the foregoing
as the SEC may prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Any other obligor on the Securities shall do likewise as to the above items
which it is required to file with the SEC pursuant to those sections.
ARTICLE 5 -- SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
Unless the Securities Resolution establishing a Series otherwise provides,
the Company shall not consolidate with or merge into any person in any
transaction in which the Company is not the survivor, or transfer all or
substantially all of its assets to any person, unless:
(1) the person is organized under the laws of the United States or a State
thereof or is organized under the laws of a foreign jurisdiction and
consents to the jurisdiction of the courts of the United States or a
State thereof;
(2) the person assumes by supplemental indenture all the obligations of
the Company under this Indenture, the Securities and any coupons;
(3) all required approvals of any regulatory body having jurisdiction over
the transaction shall have been obtained;
(4) immediately after the transaction no Default exists; and
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(5) the Company provides an Officers' Certificate and an Opinion of
Counsel to the effect that all the provisions in this Section 5.01
have been complied with;
provided, however, that The Empire District Electric Company, as the original
Company under this Indenture, may merge with and into UtiliCorp United Inc., a
Delaware corporation, with UtiliCorp United Inc. as the survivor, pursuant to an
Agreement and Plan of Merger dated as of May 10, 1999, without complying with
paragraphs (1) through (5) above.
The successor shall be substituted for the Company, and thereafter all
obligations of the Company under this Indenture, the Securities and any coupons
shall terminate.
ARTICLE 6 -- DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
Unless the Securities Resolution otherwise provides, an "Event of Default"
on a series occurs if:
(1) the Company defaults in any payment of interest on any Securities of
the series when the same becomes due and payable and the Default
continues for a period of 60 days;
(2) the Company defaults in the payment of the principal or premium, if
any, of any Securities of the series when the same becomes due and
payable at maturity or upon redemption, acceleration or otherwise;
(3) the Company defaults in the payment or satisfaction of any sinking
fund obligation with respect to any Securities of the series as
required by the Securities Resolution establishing such series and the
Default continues for a period of 60 days;
(4) the Company defaults in the performance of any of its other agreements
applicable to the series and the Default continues for 90 days after
the notice specified below;
(5) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
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(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian for it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian for the Company or for all or substantially
all of its property, or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days; or
(7) there occurs any other Event of Default provided for in the series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the Trustee or
the Holders of at least 25% in principal amount of the series notify the Company
of the Default and the Company does not cure the Default within the time
specified after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default."
If Holders notify the Company of a Default, they shall notify the Trustee at the
same time.
The failure to redeem any Security subject to a Conditional Redemption is
not an Event of Default if any event on which such redemption is so conditioned
does not occur and is not waived before the scheduled redemption date.
SECTION 6.02. Acceleration.
If an Event of Default occurs and is continuing on a series, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount of the
series by notice to the Company and the Trustee, may declare the principal of
and accrued interest on all the Securities of the series to be due and payable
immediately. Discounted Debt Securities may
<PAGE>
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provide that the amount of principal due upon acceleration is less than the
stated principal amount.
The Holders of a majority in principal amount of the series by notice to
the Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default on the series have been cured or waived except nonpayment of principal
or interest that has become due solely because of the acceleration.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing on a series, the Trustee
may pursue any available remedy to collect principal or interest then due on the
series, to enforce the performance of any provision applicable to the series, or
otherwise to protect the rights of the Trustee and Holders of the series.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or coupons or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Unless the Securities Resolution otherwise provides, the Holders of a
majority in principal amount of a series by notice to the Trustee may waive an
existing Default on the series and its consequences except:
(1) a Default in the payment of the principal of or interest on the
series, or
(2) a Default in respect of a provision that under Section 10.02 cannot be
amended without the consent of each Securityholder affected.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of a series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or of exercising any trust or power conferred on the Trustee, with
respect to such series. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or if the Trustee in good faith shall
determine that the action or direction might involve the Trustee in personal
liability.
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SECTION 6.06. Limitation on Suits.
A Securityholder of a series may pursue a remedy with respect to the series
only if:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default on the series;
(2) the Holders of at least 25% in principal amount of the series make a
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the series do not give the Trustee a direction inconsistent
with such request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Collection Suit by Trustee.
If an Event of Default in payment of interest, principal or sinking fund
specified in Section 6.01(1), (2) or (3) occurs and is continuing on a series,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal and interest
remaining unpaid on the series.
SECTION 6.08. Priorities.
If the Trustee collects any money for a series pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.06;
Second: to Securityholders of the series for amounts due and unpaid for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable for principal and interest,
respectively; and
Third: to the Company.
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The Trustee may fix a payment date for any payment to Securityholders.
ARTICLE 7 -- TRUSTEE
SECTION 7.01. Rights of Trustee.
(1) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on the Certificate or Opinion.
(3) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith in accordance with a direction received by it
pursuant to Section 6.05.
(5) The Trustee may refuse to perform any duty or exercise any right or
power which it reasonably believes may expose it to any loss,
liability or expense unless it receives indemnity satisfactory to it
against such loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(7) The Trustee shall have no duty with respect to a Default unless a
Trust Officer has actual knowledge of the Default. As used herein, the
term "actual knowledge" means the actual fact or statement of knowing,
without any duty to make any investigation with regard thereto.
(8) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized and within its
powers.
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(9) Any Agent shall have the same rights and be protected to the same
extent as if it were Trustee.
(10) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
SECTION 7.02. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities or coupons and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
SECTION 7.03. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities or any coupons; it shall not be accountable for the
Company's use of the proceeds from the Securities; it shall not be responsible
for any statement in the Securities or any coupons; it shall not be responsible
for any overissue; it shall not be responsible for determining whether the form
and terms of any Securities or coupons were established in conformity with this
Indenture; it shall not be responsible for determining whether any Securities
were issued in accordance with this Indenture; and it shall not be responsible
for the acts or omissions of any other Trustees appointed hereunder.
SECTION 7.04. Notice of Defaults.
If a Default occurs and is continuing on a series and if the Trustee has
actual knowledge of such Default, the Trustee shall mail a notice of the Default
within 90 days after it occurs to Holders of Registered Securities of the
series. Except in the case of a Default in payment on a series, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interest of Holders of
the series. The Trustee shall withhold notice of a Default described in Section
6.01(4) until at least 60 days after it occurs.
SECTION 7.05. Reports by Trustee to Holders.
Any report required by TIA ss. 313(a) to be mailed to Securityholders shall
be mailed by the Trustee on or before May 15th of each year.
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange on which any Securities are
listed. The Company shall notify the Trustee when any Securities are listed on a
stock exchange.
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SECTION 7.06. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel, if any.
The Company shall indemnify the Trustee against any loss or liability
incurred by it. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through its own negligence or willful
misconduct.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities and any coupons on all money or
property held or collected by the Trustee, except that held in trust to pay
principal or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(5) or (6) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive any termination or discharge
of this Indenture (including without limitation any termination under any
Bankruptcy Law) and the resignation or removal of the Trustee.
SECTION 7.07. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee with the Company's
consent.
The Company may remove the Trustee if:
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(1) the Trustee fails to comply with TIAss.310(a) orss.310(b) or with
Section 7.09;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a Custodian or other public officer takes charge of the Trustee or its
property;
(4) the Trustee becomes incapable of acting; or
(5) an event of the kind described in Section 6.01(5) or (6) occurs with
respect to the Trustee.
The Company also may remove the Trustee with or without cause if the
Company so notifies the Trustee three months in advance and if no Default occurs
during the three-month period.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with TIA ss. 310(a) or ss. 310(b) or with
Section 7.09, any Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders of Registered
Securities. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in Section
7.06.
SECTION 7.08. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
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SECTION 7.09. Trustee's Capital and Surplus.
The Trustee at all times shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published report of financial
condition.
ARTICLE 8 -- DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance.
Securities of a series may be defeased in accordance with their terms and,
unless the Securities Resolution otherwise provides, in accordance with this
Article.
The Company at any time may terminate as to a series all of its obligations
under this Indenture, the Securities of the series and any related coupons
("legal defeasance option"). The Company at any time may terminate as to a
series its obligations, if any, under any restrictive covenants which may be
applicable to a particular series ("covenant defeasance option"). However, in
the case of the legal defeasance option, the Company's obligations in Sections
2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.06, 7.07 and 8.04 shall survive until the
Securities of the series are no longer outstanding; thereafter the Company's
obligations in Section 7.06 shall survive.
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, a series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, a series may
not be accelerated by reference to any restrictive covenants as to which the
covenant defeasance option applicable to such series has been so exercised.
The Trustee upon request shall acknowledge in writing the discharge of
those obligations or restrictions that the Company terminates by defeasance.
SECTION 8.02. Conditions to Defeasance.
The Company may exercise as to a series its legal defeasance option or its
covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the Trustee or another
trustee money or U.S. Government Obligations;
(2) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion
that
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the payments of principal and interest when due on the deposited U.S.
Government Obligations without reinvestment plus any deposited money
without investment will provide cash at such times and in such amounts
as will be sufficient to pay principal, premium, if any, and interest
when due on all the Securities of the series to maturity or
redemption, as the case may be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under any other agreement
binding on the Company;
(5) the deposit does not cause the Trustee to have a conflicting interest
under TIAss. 310(a) orss. 310(b) as to another series; (6) the Company
delivers to the Trustee an Opinion of Counsel to the effect that
Holders of the series will not recognize income, gain or loss for
Federal income tax purposes as a result of the defeasance;
(7) 91 days pass after the deposit is made and during the 91-day period no
Default specified in Section 6.01(5) or (6) occurs that is continuing
at the end of the period; and
(8) the Company provides an Officers' Certificate and an Opinion of
Counsel to the effect that all conditions precedent pursuant to this
Section 8.02 have been satisfied.
Before or after a deposit the Company may make arrangements satisfactory to
the Trustee for the redemption of Securities at a future date in accordance with
Article 3.
"U.S. Government Obligations" means direct obligations of (i) the United
States or (ii) an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed by the United States, which, in either case,
have the full faith and credit of the United States pledged for payment and
which are not callable at the issuer's option, or certificates representing an
ownership interest in such obligations.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.02. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on
Securities of the defeased series.
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SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the Company
upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that remains
unclaimed for two years. After payment to the Company, Securityholders entitled
to the money must look to the Company for payment as unsecured general creditors
unless an abandoned property law designates another person.
ARTICLE 9 -- CONVERSION
SECTION 9.01. Conversion Privilege.
If the Securities Resolution establishing the terms of a series of
securities so provides, Securities of any series may be convertible at the
option of the Holders into or for Common Stock or other equity or debt
securities (a "Conversion Right"). The Securities Resolution may establish,
among other things, the Conversion Rate, provisions for adjustments to the
Conversion Rate and limitations upon exercise of the Conversion Right.
Unless the Securities Resolution otherwise provides, a Holder may convert a
portion of a Security if the portion is $1,000 or an integral multiples thereof.
Provisions of this Indenture that apply to the conversion of the aggregate
principal amount of a Security also apply to conversion of a portion of it.
The Securities Resolution providing for Securities with a Conversion Right
may establish any terms in addition to, or other than (including terms
inconsistent with), those set forth in this Article 9 with respect to the
conversion of the Securities established thereby (other than those of Section
9.16).
SECTION 9.02. Conversion Procedure.
To convert a Security a Holder must satisfy all requirements in the
Securities and the Securities Resolution and (i) complete and manually sign the
conversion notice (the "Conversion Notice") provided for in the Securities
Resolution or the Security (or complete and manually sign a facsimile thereof)
and deliver such notice to the Conversion Agent or any other office or agency
maintained for such purpose, (ii) surrender the Security to the Conversion Agent
or at such other office or agency by physical delivery, (iii) if required,
furnish appropriate endorsements and transfer documents, and (iv) if required,
pay all transfer or similar
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taxes. The date on which such notice shall have been received by and the
Security shall have been so surrendered to the Conversion Agent is the
"Conversion Date." Such Conversion Notice shall be irrevocable and may not be
withdrawn by a Holder for any reason.
The Company will complete settlement of any conversion of Securities within
the time periods set forth in the applicable Securities Resolution.
If any Security is converted between the record date for the payment of
interest and the next succeeding interest payment date, such Security must be
accompanied by funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such Security shall
have been called for redemption during such period, in which case no such
payment shall be required). A Security converted on an interest payment date
need not be accompanied by any payment, and the interest on the principal amount
of the Security being converted will be paid on such interest payment date to
the registered holder of such Security on the immediately preceding record date.
Subject to the aforesaid right of the registered holder to receive interest, no
payment or adjustment will be made on conversion for interest accrued on the
converted Security or for interest, dividends or other distributions payable on
any security issued on conversion.
If a Holder converts more than one Security at the same time, the
securities into which the Security is convertible issuable or cash payable upon
the conversion shall be based on the total principal amount of the Securities
converted.
Upon surrender of a Security that is converted in part the Trustee shall
authenticate for the Holder a new Security equal in principal amount to the
unconverted portion of the Security surrendered; except that if a global
Security is so surrendered the Trustee shall authenticate and, if applicable,
deliver to the depository a new global Security in a denomination equal to and
in exchange for the unconverted portion of the principal of the global Security
so surrendered.
If the last day on which a Security may be converted is a Legal Holiday in
a place where a Conversion Agent is located, the Security may be surrendered to
that Conversion Agent on the next succeeding day that is not a Legal Holiday.
SECTION 9.03. Taxes on Conversion.
If a Holder of a Security exercises a Conversion Right, the Company shall
pay any documentary, stamp or similar issue or transfer tax due on the issue of
the securities into which the Security is convertible upon the conversion.
However, the Holder shall pay any such tax which is due because securities or
other property are issued in a name other than the Holder's name. Nothing herein
shall preclude any income tax or other withholding required by law or
regulations.
<PAGE>
-30-
SECTION 9.04. Company Determination Final.
Any determination that the Board of Directors makes pursuant to this
Article 9 or consistent with terms provided for in any Securities Resolution is
conclusive, absent manifest error.
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer.
The Trustee (and each Conversion Agent other than the Company) has no duty
to determine when or if an adjustment under this Article 9 or any Securities
Resolution should be made, how it should be made or calculated or what it should
be. The Trustee (and each Conversion Agent other than the Company) makes no
representation as to the validity or value of any securities issued upon
conversion of Securities. The Trustee (and each Conversion Agent other than the
Company) shall not be responsible for the Company's failure to comply with this
Article 9 or any provision of a Securities Resolution relating to a Conversion
Right.
SECTION 9.06. Company to Provide Conversion Securities.
The Company shall reserve out of its authorized but unissued Common Stock
or its Common Stock held in treasury sufficient shares to permit the conversion
of all of the Securities convertible into Common Stock. The Company shall
arrange and make available for issuance upon conversion the full amount of any
other securities into which the Securities are convertible to permit such
conversion of the Securities.
All shares of Common Stock or other equity securities of any person which
may be issued upon conversion of the Securities shall be validly issued, fully
paid and non-assessable.
The Company will comply with all securities laws regulating the offer and
delivery of securities upon conversion of Securities.
SECTION 9.07. Cash Settlement Option.
If the Securities Resolution so provides, the Company may elect to satisfy,
in whole or in part, a Conversion Right of Securities convertible into Common
Stock or other securities of any person by the delivery of cash. The amount of
cash to be delivered shall be equal to the Market Price on the last Trading Day
preceding the applicable Conversion Date of a share of Common Stock or other
securities of any person into which the Securities are convertible multiplied by
the number of shares of Common Stock or the number of shares or principal amount
of other securities into which the Securities are convertible, respectively, in
respect of which the Company elects to deliver cash. If the Company elects to
satisfy, in whole or in part, a Conversion Right by the delivery of shares of
Common Stock or other se-
<PAGE>
-31-
curities, no fractional shares or portion of other securities will be delivered.
Instead, the Company will pay cash based on the Market Price for such fractional
share of Common Stock or portion of other securities.
The "Market Price" of the Common Stock into which Securities or other
equity securities into which the Securities are convertible may be converted
pursuant to a Securities Resolution or this Article 9 on any Trading Day means
the weighted average per share sale price for all sales of the Common Stock or
other equity securities on such Trading Day (or, if the information necessary to
calculate such weighted average per share sale price is not reported, the
average of the high and low sale prices, or if no sales are reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and average ask prices), as reported in the composite
transactions for the New York Stock Exchange, or if the Common Stock or other
equity securities into which the Securities are convertible are not listed or
admitted to trading on such exchange, as reported in the composite transactions
for the principal national or regional United States securities exchange on
which the Common Stock or other equity securities into which the Securities are
convertible are listed or admitted to trading or, if the Common Stock or other
equity securities into which the Securities are convertible are not listed or
admitted to trading on a United States national or regional securities exchange,
as reported by NASDAQ or by the National Quotation Bureau Incorporated, or if
not so reported, as determined in the manner set forth in the appropriate
Securities Resolution. In the absence of such quotations, the Company shall be
entitled to determine the Market Price on the basis of such quotations as it
considers appropriate.
The "Market Price" of any debt security into which Securities are
convertible shall be determined as set forth in the applicable Securities
Resolution.
SECTION 9.08. Adjustment in Conversion Rate for Change in Capital Stock.
If the Securities are convertible into Common Stock and the Company:
(1) pays a dividend or makes a distribution on its Common Stock in shares
of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller number
of shares;
(4) pays a dividend or makes a distribution on its Common Stock in shares
of its Capital Stock other than Common Stock; or
<PAGE>
-32-
(5) issues by reclassification of its Common Stock any shares of its
Capital Stock,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company (or, at the Company's option, an equivalent amount in cash) which he
would have owned immediately following such action if he had converted the
Security immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If the security into which the Securities are convertible is other than
Common Stock of the Company, the conversion rate shall be subject to adjustment
as set forth in the applicable Securities Resolution.
If after an adjustment a Holder of a Security may, upon conversion, receive
shares of two or more classes of Capital Stock of the Company or other
securities, the Board of Directors of the Company shall determine the allocation
of the adjusted Conversion Rate between or among the classes of Capital Stock or
other securities. After such allocation, the conversion privilege and the
Conversion Rate of each class of Capital Stock or other securities shall
thereafter be subject to adjustment on terms comparable to those applicable to
Common Stock in this Article or in such Securities Resolution.
SECTION 9.09. Adjustment in Conversion Rate for Common Stock Issued Below Market
Price.
If the Securities are convertible into Common Stock, and the Company issues
to all holders of Common Stock rights, options or warrants to subscribe for or
purchase shares of Common Stock, or any securities convertible into or
exchangeable for shares of Common Stock, or rights, options or warrants to
subscribe for or purchase such convertible or exchangeable securities at a Price
Per Share (as defined and determined according to the formula given below) lower
than the current Market Price on the date of such issuance, the Conversion Rate
shall be adjusted in accordance with the following formula:
AC = CC * (O + N )
O * R
---
M
where:
AC = the adjusted Conversion Rate.
<PAGE>
-33-
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding immediately prior
to such issuance (which number shall include shares owned or held by
or for the account of the Company).
N = the "Number of Shares," which (i) in the case of rights, options or
warrants to subscribe for or purchase shares of Common Stock or of
securities convertible into or exchangeable for shares of Common
Stock, is the maximum number of shares of Common Stock initially
issuable upon exercise, conversion or exchange thereof; and (ii) in
the case of rights, options or warrants to subscribe for or purchase
convertible or exchangeable securities, is the maximum number of
shares of Common Stock initially issuable upon the conversion or
exchange of the convertible or exchangeable securities issuable upon
the exercise of such rights, options or warrants.
R = the proceeds received or receivable by the Company, which (i) in the
case of rights, options or warrants to subscribe for or purchase
shares of Common Stock or of securities convertible into or
exchangeable for shares of Common Stock, is the aggregate amount
received or receivable by the Company in consideration for the sale
and issuance of such rights, options, warrants or convertible or
exchangeable securities, plus the minimum aggregate amount of
additional consideration, other than the convertible or exchangeable
securities, payable to the Company upon exercise, conversion or
exchange thereof; and (ii) in the case of rights, options or warrants
to subscribe for or purchase convertible or exchangeable securities,
is the aggregate amount received or receivable by the Company in
consideration for the sale and issuance of such rights, options or
warrants, plus the minimum aggregate consideration payable to the
Company upon the exercise thereof, plus the minimum aggregate amount
of additional consideration, other than the convertible or
exchangeable securities, payable upon the conversion or exchange of
the convertible or exchangeable securities; provided, that in each
case the proceeds received or receivable by the -------- Company shall
be deemed to be the amount of gross cash proceeds without deducting
therefrom any compensation paid or discount allowed in the sale,
underwriting or purchase thereof by underwriters or dealers or others
performing similar services or any expenses incurred in connection
therewith.
M = the current Market Price per share of Common Stock on the date of
issue of the rights, options or warrants to subscribe for or purchase
shares of Common Stock or the securities convertible into or
exchangeable for shares of Common
<PAGE>
-34-
Stock or the rights, options or warrants to subscribe for or purchase
convertible or exchangeable securities.
"Price Per Share" shall be defined and determined according to the
following formula:
P = R
---
N
where:
P = Price Per Share
and R and N have the meanings assigned above.
If the Company shall issue rights, options, warrants or convertible or
exchangeable securities with respect to its Common Stock for a consideration
consisting, in whole or in part, of property other than cash the amount of such
consideration shall be determined in good faith by the Board of Directors whose
determination shall be conclusive and evidenced by a resolution of the Board of
Directors filed with the Trustee.
The adjustment shall be made successively whenever any such additional
rights, options, warrants or convertible or exchangeable securities with respect
to its Common Stock are issued, and shall become effective immediately after the
date of issue of such shares, rights, options, warrants or convertible or
exchangeable securities.
To the extent that such rights, options or warrants to acquire Common Stock
expire unexercised or to the extent any convertible or exchangeable securities
with respect to its Common Stock are redeemed by the Company or otherwise cease
to be convertible or exchangeable into shares of Common Stock, the Conversion
Rate shall be readjusted to the Conversion Rate which would then be in effect
had the adjustment made upon the date of issuance of such rights, options,
warrants or convertible or exchangeable securities been made upon the basis of
the issuance of rights, options or warrants to subscribe for or purchase only
the number of shares of Common Stock as to which such rights, options or
warrants were actually exercised and the number of shares of Common Stock that
were actually issued upon the conversion or exchange of the convertible or
exchangeable securities.
If the Securities are convertible into securities other than the Common
Stock, any adjustment in the Conversion Rate required for the issuance or sale
of the securities into which the Securities are convertible shall be made as set
forth in the Securities Resolution.
<PAGE>
-35-
SECTION 9.10. Adjustment for Other Distributions.
If the Securities are initially convertible into Common Stock and the
Company distributes to all holders of its Common Stock any of its assets or debt
securities or any rights or warrants to purchase assets or debt securities of
the Company, the Conversion Rate shall be adjusted in accordance with the
following formula:
AC = CC * (O * M)
-------------
((O * M) - F)
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record date
mentioned below (which number shall include shares owned or held by or
for the account of the Company).
M = the current Market Price per share of Common Stock on the record
date mentioned below.
F = the fair market value on the record date of the assets, securities,
rights or warrants distributed. The Board of Directors of the Company
shall determine in good faith the fair market value and such
determination shall be conclusive and evidenced by a resolution of the
Board of Directors filed with the Trustee.
The adjustment shall become effective immediately after the record date for
the determination of stockholders entitled to receive the distribution.
If the securities into which the Securities are convertible are other than
Common Stock, any adjustments for such other distribution shall be made as set
forth in the Securities Resolution.
This Section does not apply to cash dividends or distributions or to
reclassifications or distributions referred to in Section 9.08. Also, this
Section does not apply to shares issued below Market Price referred to in
Section 9.09.
SECTION 9.11. Voluntary Adjustment.
The Company at any time may increase the Conversion Rate, temporarily or
otherwise, by any amount but in no event shall such Conversion Rate result in
the issuance of
<PAGE>
-36-
Capital Stock at a price less than the par value of such Capital Stock at the
time such increase is made.
SECTION 9.12. When Adjustment May Be Deferred.
No adjustment in the Conversion Rate need be made unless the adjustment
would require a change of at least 1% in the Conversion Rate. Any adjustments
that are not made due to the immediately preceding sentence shall be carried
forward and taken into account in any subsequent adjustment; provided, that any
adjustment carried forward shall be deferred not in excess of three years,
whereupon any adjustment to the Conversion Rate will be effected.
All calculations under this Article 9 shall be made to the nearest cent or
to the nearest 1/100th of a share, as the case may be.
SECTION 9.13. When No Adjustment Required.
Except as set forth in Section 9.09, no adjustment in the Conversion Rate
shall be made because the Company issues, in exchange for cash, property or
services, shares of Common Stock, or any securities convertible into shares of
Common Stock, or securities carrying the right to purchase shares of Common
Stock or such convertible securities.
No adjustment in the Conversion Rate need be made for rights to purchase or
the sale of Common Stock pursuant to a Company plan providing for reinvestment
of dividends or interest.
No adjustment in the Conversion Rate need be made for a change in the par
value of the Common Stock or other securities having a par value.
No adjustment need be made for a transaction referred to in Section 9.08,
9.09 or 9.10 if Securityholders are to participate in the transaction on a basis
and with notice that the Board of Directors determines to be fair and
appropriate in light of the basis and notice on which holders of Common Stock or
other securities into which the Securities are convertible participate in the
transaction.
SECTION 9.14. Notice of Adjustment.
Whenever the Conversion Rate is adjusted, the Company shall promptly mail
to Holders of Securities affected a notice of the adjustment. The Company shall
file with the Trustee an Officers' Certificate or a certificate from the
Company's independent public accountants stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence that the adjustment is correct, absent manifest error.
<PAGE>
-37-
SECTION 9.15. Notice of Certain Transactions.
If:
(1) the Company proposes to take any action that would require an
adjustment in the Conversion Rate,
(2) the Company proposes to take any action that would require a
supplemental indenture pursuant to Section 9.16, or
(3) there is a proposed liquidation or dissolution of the Company or of
the issuer of any other security into which the Securities are
convertible,
the Company shall mail to registered Holders of Securities of any affected
series a notice stating the proposed record date for a dividend or distribution
or the proposed effective date of a subdivision, combination, reclassification,
consolidation, merger, transfer, lease, liquidation or dissolution. The Company
shall mail the notice at least 15 days before such date. Failure to mail the
notice or any defect in it shall not affect the validity of the transaction.
SECTION 9.16. Reorganization of the Company.
If the Company is a party to a transaction subject to Section 5.01, the
successor corporation (if other than the Company) shall enter into a
supplemental indenture which shall provide that the Holder of a Security may
convert it into the kind and amount of securities, cash or other assets which he
would have owned immediately after the consolidation, merger or transfer if he
had converted the Security immediately before the effective date of the
transaction. The supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practical to the adjustments provided
for in this Article. The successor company shall mail to Holders of Securities
of any affected series a notice briefly describing the supplemental indenture.
If this Section applies, Sections 9.08, 9.09 and 9.10 do not apply.
ARTICLE 10 -- AMENDMENTS
SECTION 10.01. Without Consent of Holders.
The Company and the Trustee may amend this Indenture, the Securities or any
coupons without the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
<PAGE>
-38-
(2) to comply with Article 5 or Section 9.16;
(3) to provide that specific provisions of this Indenture shall not apply
to a series not previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or more series; or
(6) to make any change that does not materially adversely affect the
rights of any Securityholder.
SECTION 10.02. With Consent of Holders.
Unless the Securities Resolution otherwise provides, the Company and the
Trustee may amend this Indenture, the Securities and any coupons with the
written consent of the Holders of a majority in principal amount of the
Securities of all series affected by the amendment voting as one class. However,
without the consent of each Securityholder affected, an amendment under this
Section may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the interest on or change the time for payment of interest on
any Security (except an election to defer interest in accordance with
the applicable Securities Resolutions and Section 2.01(30) hereof);
(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted Debt Security or reduce the
amount of principal of any Discounted Debt Security that would be due
upon an acceleration thereof;
(5) change the currency in which principal or interest on a Security is
payable;
(6) make any change that materially adversely affects the right to convert
or exchange any Security; or
(7) make any change in Section 6.04 or 10.02, except to increase the
amount of Securities whose Holders must consent to an amendment or
waiver or to provide that other provisions of this Indenture cannot be
<PAGE>
-39-
amended or waived without the consent of each Securityholder affected
thereby.
An amendment of a provision included solely for the benefit of one or more
series does not affect Securityholders of any other series.
Securityholders need not consent to the exact text of a proposed amendment
or waiver; it is sufficient if they consent to the substance thereof.
SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment pursuant to Section 10.01 or 10.02 shall be set forth in a
supplemental indenture (except any amendment pursuant to Section 10.01(4), which
may be set forth in a Securities Resolution) that complies with the TIA.
If a provision of the TIA requires or permits a provision of this Indenture
and the TIA provision is amended, then the Indenture provision shall be
automatically amended to like effect.
SECTION 10.04. Effect of Consents.
An amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Securityholder entitled to consent to it.
A consent to an amendment or waiver by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security that
evidences the same debt as the consenting Holder's Security. Any Holder or
subsequent Holder may revoke the consent as to his Security if the Trustee
receives notice of the revocation before the amendment or waiver becomes
effective.
The Company may fix a record date for the determination of Holders of
Registered Securities entitled to give a consent. The record date shall not be
less than 10 nor more than 60 days prior to the first written solicitation of
Securityholders.
SECTION 10.05. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate notation about an
amendment or waiver on any Security thereafter authenticated. The Company may
issue in exchange for affected Securities new Securities that reflect the
amendment or waiver.
<PAGE>
-40-
SECTION 10.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that adversely affects
its rights. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment or supplement or waiver
authorized pursuant to this Article is authorized or permitted by this
Indenture, and that such amendment or supplement or waiver constitutes the
legal, valid and binding obligation of the Company.
ARTICLE 11 -- MISCELLANEOUS
SECTION 11.01. Trust Indenture Act.
The provisions of TIA ss.ss. 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not expressly set forth herein.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 11.02. Notices.
Any notice by one party to another is duly given if in writing and
delivered in person, sent by facsimile transmission confirmed by mail or mailed
by first-class mail to the other's address shown below:
Company:
The Empire District Electric Company
602 Joplin Street
Joplin, Missouri 64801
Fax: (417) 625-5153
Attention: Vice President - Finance
<PAGE>
-41-
Trustee:
Norwest Bank Minnesota, National Association
N9303-120
Sixth and Marquette
Minneapolis, Minnesota 55479
Fax: (612) 667-9825
Attention: Corporate Trust Department
A party by notice to the other parties may designate additional or
different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed to his address shown
on the register kept by the Transfer Agent or on the list referred to in Section
2.06. Failure to mail a notice to a Securityholder or any defect in a notice
mailed to a Securityholder shall not affect the sufficiency of the notice mailed
to other Securityholders or the sufficiency of any published notice.
If a notice is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice to Securityholders, it shall mail a copy to
the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a notice required to
be mailed or to publish a notice required to be published, the Company may give
such substitute notice as the Trustee approves. Failure to publish a notice as
required or any defect in it shall not affect the sufficiency of any mailed
notice.
All notices shall be in the English language, except that any published
notice may be in an official language of the country of publication.
A "notice" includes any communication required by this Indenture.
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall, if so requested, furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
<PAGE>
-42-
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
SECTION 11.05. Rules by Company and Agents.
The Company may make reasonable rules for action by or a meeting of
Securityholders. An Agent may make reasonable rules and set reasonable
requirements for its functions.
SECTION 11.06. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open or a day on which the Federal Reserve
Bank of New York is not open. If a payment date is a Legal Holiday at a place of
payment, unless the Securities Resolution establishing a series otherwise
provides with respect to Securities of the series, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period except that, if such next succeeding day
is in the next succeeding calendar year, payment shall be made on the date
immediately preceding such Legal Holiday.
<PAGE>
-43-
SECTION 11.07. No Recourse Against Others.
All liability described in the Securities of any director, officer,
employee or stockholder, as such, of the Company is waived and released.
SECTION 11.08. Duplicate Originals; Counterparts.
The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture. The parties may sign multiple
counterparts of this Indenture. Each signed counterpart shall be deemed an
original, but all of them together represent one and the same agreement.
SECTION 11.09. Governing Law.
The laws of the State of Kansas shall govern this Indenture, the Securities
and any coupons, unless federal law governs.
<PAGE>
S-1
SIGNATURES
Dated: as of September 10, 1999 THE EMPIRE DISTRICT ELECTRIC COMPANY
By /s/ R. B. Fancher
--------------------------------
Name: R. B. Fancher
Title: Vice President - Finance
Dated: as of September 10, 1999 Norwest Bank Minnesota, National
Association
By /s/ Jane Y. Schweiger
--------------------------------
Name: Jane Y. Schweiger
Title: Corporate Trust Officer
<PAGE>
EXHIBIT A
A Form of Registered Security
No. [$]
THE EMPIRE DISTRICT ELECTRIC COMPANY
[Title of Security]
THE EMPIRE DISTRICT ELECTRIC COMPANY
promises to pay to
or registered assigns
the principal sum of Dollars on ,
Interest Payment Dates:
Record Dates:
Dated:
Norwest Bank Minnesota, National Association
Transfer Agent and Paying Agent
THE EMPIRE DISTRICT ELECTRIC COMPANY
By:
------------------------------------
[Title of Authorized Officer]
By:
------------------------------------
[Title of the Authorized Officer]
(SEAL)
Authenticated:
Norwest Bank Minnesota, National Association
Registrar
By: _____________________________
Authorized Signature
A-1
<PAGE>
THE EMPIRE DISTRICT ELECTRIC COMPANY
[Title of Security]
[Explanatory Notes follow Exhibit B]
1. Interest.(1)
The Empire District Electric Company (the "Company"), a Kansas
corporation, promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company will pay
interest on and of each year commencing , . Interest on the Securities
will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from , . Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.(2)
The Company will pay interest on the Securities to the persons who are
registered holders of Securities at the close of business on the
record date for the next interest payment date, except as otherwise
provided in the Indenture. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay
principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts.
The Company may pay principal and interest by check payable in such
money. It may mail an interest check to a holder's registered address.
3. Securities Agents.(2A)
Initially, Norwest Bank Minnesota, National Association, Attention:
Corporate Trust Department, will act as Paying Agent, Transfer Agent
and Registrar. The Company may change any Paying Agent or Transfer
Agent without notice or provide for more than one such agent. The
Company or any Affiliate may act in any such capacity. Subject to
certain conditions, the Company may change the Trustee.
4. Indenture.
The Company issued the securities of this series (the "Securities")
under an Indenture dated as of September 10, 1999 (the "Indenture")
between the Company and Norwest Bank Minnesota, National Association
(the "Trustee"). The terms of the Securities include those stated in
the Indenture and in the Securities Resolution creating the Securities
and those made part of the Indenture by the Trust Indenture Act of
1939 (15 U.S. Code ss.ss. 77aaa-77bbbb). Security-
A-2
<PAGE>
holders are referred to the Indenture, the Securities Resolution and
the Trust Indenture Act of 1939 for a statement of such terms.
5. Optional Redemption.(3)
On or after , the Company may redeem all the Securities at any time or
some of them from time to time at the following redemption prices
(expressed in percentages of principal amount), plus accrued interest
to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter at 100%.
6. Mandatory Redemption.(4)
The Company will redeem $ principal amount of Securities on and on
each thereafter through at a redemption price of 100% of principal
amount, plus accrued interest to the redemption date.(5) The Company
may reduce the principal amount of Securities to be redeemed pursuant
to this paragraph by subtracting 100% of the principal amount
(excluding premium) of any Securities (i) that the Company has
acquired or that the Company has redeemed other than pursuant to this
paragraph and (ii) that the Company has delivered to the Registrar for
cancellation. The Company may so subtract the same Security only once.
7. Additional Optional Redemption.(6)
In addition to redemptions pursuant to the above paragraph(s), the
Company may redeem not more than $ principal amount of Securities on
and on each thereafter through at a redemption price of 100% of
principal amount, plus accrued interest to the redemption date.
8. Notice of Redemption.(7)
Notice of redemption will be mailed at least 30 but not more than 60
days before the redemption date to each holder of Securities to be
redeemed at his registered address.
A-3
<PAGE>
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice of
Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.
9. Conversion.(8)
A Holder of a Security may convert it into Common Stock of the Company
or cash, or a combination thereof, at the Company's option, at any
time before the close of business on ___________, or, if the Security
is called for redemption, the Holder may convert it at any time before
the close of business on the redemption date. The initial Conversion
Rate is ____________ (or an equivalent amount in cash) per $1,000
principal amount of the Securities, subject to adjustment as provided
in Article 9 of the Indenture.(9) The Company will deliver a check in
lieu of any fractional share. On conversion no payment or adjustment
for interest accrued on the Securities will be made nor for dividends
on the Common Stock issued on conversion. If any Security is converted
between the record date for the payment of interest and the next
succeeding interest payment date, such Security must be accompanied by
funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such
Security shall have been called for redemption, in which case no such
payment shall be required). A Security converted on an interest
payment date need not be accompanied by any payment, and the interest
on the principal amount of the Security being converted will be paid
on such interest payment date to the registered holder of such
Security on the immediately preceding record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements
and transfer documents if required by the Registrar or Conversion
Agent and (4) pay any transfer or similar tax if required. A Holder
may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000.
10. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in denominations
of $1,000(10) and whole multiples of $1,000. The transfer of
Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Transfer Agent may require a holder,
among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or the
Indenture. The Transfer Agent need not exchange or reg-
A-4
<PAGE>
ister the transfer of any Security or portion of a Security selected
for redemption. Also, it need not exchange or register the transfer of
any Securities for a period of 15 days before a selection of
Securities is to be redeemed.
11. Persons Deemed Owners.
The registered holder of a Security may be treated as its owner for
all purposes.
12. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal
amount of the securities of all series affected by the amendment.(11)
Subject to certain exceptions, a default on a series may be waived
with the consent of the holders of a majority in principal amount of
the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any ambiguity,
omission, defect or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make any change that
does not materially adversely affect the rights of any Securityholder.
13. Restrictive Covenants.(12)
The Securities are unsecured general obligations of the Company
limited to $ principal amount. The Indenture does not limit other
unsecured debt.
14. Successors.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
15. Defeasance Prior to Redemption or Maturity.(13)
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the
Securities to redemption or maturity. U.S. Government Obligations are
securities backed by the full faith and credit of the United States of
America or certificates representing an ownership interest in such
Obligations.
A-5
<PAGE>
16. Defaults and Remedies.
An Event of Default14 includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default for 60 days in payment or satisfaction of any
sinking fund obligation; default by the Company for a specified period
after notice to it in the performance of any of its other agreements
applicable to the Securities; certain events of bankruptcy or
insolvency; and any other Event of Default provided for in the series.
If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the Securities may
declare the principal15 of all the Securities to be due and payable
immediately.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice
of any continuing default (except a default in payment of principal or
interest) if it determines that withholding notice is in their
interests. The Company must furnish an annual compliance certificate
to the Trustee.
17. Trustee Dealings with Company.
Norwest Bank Minnesota, National Association, the Trustee under the
Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates,
as if it were not Trustee.
18. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
19. Authentication.
This Security shall not be valid until authenticated by a manual
signature of the Registrar.
A-6
<PAGE>
20. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entirety), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), U/G/M/A (=Uniform
Gifts to Minors Act) and U/T/M/A (=Uniform Transfers to Minors Act).
A-7
<PAGE>
EXHIBIT B
A Form of Bearer Security
No. [$]
THE EMPIRE DISTRICT ELECTRIC COMPANY
[Title of Security]
THE EMPIRE DISTRICT ELECTRIC COMPANY
promises to pay to
bearer
the principal sum of Dollars on ,
Interest Payment Dates:
Record Dates:
Dated:
Norwest Bank Minnesota, National Association
Transfer Agent and Paying Agent
THE EMPIRE DISTRICT ELECTRIC COMPANY
By:
--------------------------------------
[Title of Authorized Officer]
By:
--------------------------------------
[Title of Authorized Officer]
(SEAL)
Authenticated:
Norwest Bank Minnesota, National Association
Registrar
By: _______________________________
Authorized Signature
B-1
<PAGE>
THE EMPIRE DISTRICT ELECTRIC COMPANY
[Title of Security]
[Explanatory Notes follow Exhibit B]
1. Interest.(1)
The Empire District Electric Company (the "Company"), a Kansas
corporation, promises to pay to bearer interest on the principal
amount of this Security at the rate per annum shown above. The Company
will pay interest on and of each year commencing , . Interest on the
Securities will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from , . Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.(2)
Holders must surrender Securities and any coupons to a Paying Agent to
collect principal and interest payments. The Company will pay
principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts.
The Company may pay principal and interest by check payable in such
money.
3. Securities Agents.(2A)
Initially, Norwest Bank Minnesota, National Association, Attention:
Corporate Trust Department, will act as Transfer Agent, Paying Agent
and Registrar. The Company may change any Paying Agent or Transfer
Agent without notice or provide for more than one such agent. The
Company or any Affiliate may act in any such capacity. Subject to
certain conditions, the Company may change the Trustee.
4. Indenture.
The Company issued the securities of this series (the "Securities")
under an Indenture dated as of September 10, 1999 (the "Indenture")
between the Company and Norwest Bank Minnesota, National Association
(the "Trustee"). The terms of the Securities include those stated in
the Indenture and the Securities Resolution and those made part of the
Indenture by the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa-77bbbb). Securityholders are referred to the Indenture, the
Securities Resolution and the Trust Indenture Act of 1939 for a
statement of such terms.
B-2
<PAGE>
5. Optional Redemption.(3)
On or after , the Company may redeem all the Securities at any time or
some of them from time to time at the following redemption prices
(expressed in percentages of principal amount), plus accrued interest
to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter 100%.
6. Mandatory Redemption.(4)
The Company will redeem $ principal amount of Securities on and on
each thereafter through at a redemption price of 100% of principal
amount, plus accrued interest to the redemption date.(5) The Company
may reduce the principal amount of Securities to be redeemed pursuant
to this paragraph by subtracting 100% of the principal amount
(excluding premium) of any Securities (i) that the Company has
acquired or that the Company has redeemed other than pursuant to this
paragraph and (ii) that the Company has delivered to the Registrar for
cancellation. The Company may so subtract the same Security only once.
7. Additional Optional Redemption.(6)
In addition to redemptions pursuant to the above paragraph(s), the
Company may redeem not more than $ principal amount of Securities on
and on each thereafter through at a redemption price of 100% of
principal amount, plus accrued interest to the redemption date.
8. Notice of Redemption.(7)
Notice of redemption will be published once in an Authorized Newspaper
in the City of New York and if the Securities are listed on any stock
exchange located outside the United States and such stock exchange so
requires, in any other required city outside the United States at
least 30 but not more than 60 days before the redemption date. Notice
of redemption also will be mailed to holders who have filed their
names and addresses with the Transfer Agent within the two preceding
years. A holder of Securities may miss important notices if he fails
to maintain his name and address with the Transfer Agent.
B-3
<PAGE>
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice of
Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.
9. Conversion.(8)
A Holder of a Security may convert it into Common Stock of the Company
or cash, or a combination thereof, at the Company's option, at any
time before the close of business on ___________, or, if the Security
is called for redemption, the Holder may convert it at any time before
the close of business on the redemption date. The initial Conversion
Rate is ____________ (or an equivalent amount in cash) per $1,000
principal amount of the Securities, subject to adjustment as provided
in Article 9 of the Indenture.(9) The Company will deliver a check in
lieu of any fractional share. On conversion no payment or adjustment
for interest accrued on the Securities will be made nor for dividends
on the Common Stock issued on conversion. If any Security is converted
between the record date for the payment of interest and the next
succeeding interest payment date, such Security must be accompanied by
funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such
Security shall have been called for redemption, in which case no such
payment shall be required). A Security converted on an interest
payment date need not be accompanied by any payment, and the interest
on the principal amount of the Security being converted will be paid
on such interest payment date to the registered holder of such
Security on the immediately preceding record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements
and transfer documents if required by the Registrar or Conversion
Agent and (4) pay any transfer or similar tax if required. A Holder
may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000.
10. Denominations, Transfer, Exchange.
The Securities are in bearer form with coupons in denominations of
$5,000(10) and whole multiples of $5,000. The Securities may be
transferred by delivery and exchanged as provided in the Indenture.
Upon an exchange, the Transfer Agent may require a holder, among other
things, to furnish appropriate documents and to pay any taxes and fees
required by law or the Indenture. The Transfer Agent need not exchange
any Security or portion of a Security se-
B-4
<PAGE>
lected for redemption. Also, it need not exchange any Securities for a
period of 15 days before a selection of Securities is to be redeemed.
11. Persons Deemed Owners.
The holder of a Security or coupon may be treated as its owner for all
purposes.
12. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal
amount of the securities of all series affected by the amendment.(11)
Subject to certain exceptions, a default on a series may be waived
with the consent of the holders of a majority in principal amount of
the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any ambiguity,
omission, defect or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make any change that
does not materially adversely affect the rights of any Securityholder.
13. Restrictive Covenants.(12)
The Securities are unsecured general obligations of the Company
limited to $ principal amount. The Indenture does not limit other
unsecured debt.
14. Successors.
When a successor assumes all the obligations of the Company under the
Securities, any coupons and the Indenture, the Company will be
released from those obligations.
15. Defeasance Prior to Redemption or Maturity.(13)
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities, any coupons and
the Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on
the Securities to redemption or maturity. U.S. Government Obligations
are securities backed by the full faith and credit of the United
States of America or certificates representing an ownership interest
in such Obligations.
B-5
<PAGE>
16. Defaults and Remedies.
An Event of Default(14) includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default for 60 days in payment or satisfaction of any
sinking fund obligation; default by the Company for a specified period
after notice to it in the performance of any of its other agreements
applicable to the Securities; certain events of bankruptcy or
insolvency; and any other Event of Default provided for in the series.
If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the Securities may
declare the principal(15) of all the Securities to be due and payable
immediately.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice
of any continuing default (except a default in payment of principal or
interest) if it determines that withholding notice is in their
interests. The Company must furnish annual compliance certificates to
the Trustee.
17. Trustee Dealings with Company.
Norwest Bank Minnesota, National Association, the Trustee under the
Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates,
as if it were not Trustee.
18. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
19. Authentication.
This Security shall not be valid until authenticated by a manual
signature of the Registrar.
B-6
<PAGE>
20. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entirety), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), U/G/M/A (=Uniform
Gifts to Minors Act) and U/T/M/A (=Uniform Transfers to Minors Act).
B-7
<PAGE>
$-------------
[$]------------
Due __________
THE EMPIRE DISTRICT ELECTRIC COMPANY
[Title of Security]
Unless the Security attached to this coupon has been called for redemption,
The Empire District Electric Company (the "Company") will pay to bearer, upon
surrender, the amount shown hereon when due. This coupon may be surrendered for
payment to any Paying Agent listed on the back of this coupon unless the Company
has replaced such Agent. Payment may be made by check. This coupon represents
months' interest.
THE EMPIRE DISTRICT ELECTRIC COMPANY
By
--------------------------------------
[REVERSE OF COUPON]
PAYING AGENTS
B-8
<PAGE>
NOTES TO EXHIBITS A AND B
1 If the Security is not to bear interest at a fixed rate per annum, insert a
description of the manner in which the rate of interest is to be
determined. If the Security is not to bear interest prior to maturity, so
state.
2 If the method or currency of payment is different, insert a statement
thereof.
3 If applicable. If the Security is to be subject to a nonrefunding
restriction, insert a brief summary thereof. If the redemption is to be
subject to a condition, insert a brief summary thereof.
4 Such provisions as are applicable, if any.
5 If the Security is a Discounted Debt Security, insert amount to be redeemed
or method of calculating such amount.
6 If applicable. Also insert, if applicable, provisions for repayment of
Securities at the option of the Securityholder.
7 If applicable.
8 If applicable. If convertible into securities other than Common Stock,
insert appropriate summary.
9 If additional or different adjustment provisions apply so specify.
10 If applicable. Insert additional or different denominations and terms as
appropriate.
11 If different terms apply, insert a brief summary thereof.
12 If applicable. If additional or different covenants apply, insert a brief
summary thereof.
13 If applicable. If different defeasance terms apply, insert a brief summary
thereof.
14 If additional or different Events of Default apply, insert a brief summary
thereof.
15 If the Security is a Discounted Debt Security, set forth the amount due and
payable upon an Event of Default.
Note: U.S. tax law may require certain legends on Discounted Debt and Bearer
Securities.
<PAGE>
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
------------------------------------------
: :
: :
------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Date: _______________ Your Signature: ____________________________________
____________________________________
(Sign exactly as your name(s)
appear(s) on the other side of this
Security)
Signature(s) guaranteed by: __________________________________________________
(All signatures must be guaranteed by an
"eligible guarantor institution" as defined by
Rule 17Ad-15 of the Securities Exchange Act of
1934, as amended)
C-1
<PAGE>
EXHIBIT D
CONVERSION NOTICE
To convert this Security, check the box:
-------------
-------------
To convert only part of this Security, state the
amount (must be in integral multiples of $1,000);
$_________________________
If you want the securities delivered upon conversion
made out in another person's name, fill in the form
below:
(Insert other person's Social Security or Tax I.D. Number)
___________________________________
___________________________________
___________________________________
___________________________________
(Print or type other person's name, address and
zip code
Date: ____________ Signature(s): ____________________________
----------------------------------
(Sign exactly as your name(s)
appear(s) on the other side of
this Security)
Signature(s) guaranteed by: ___________________________________________
(All signatures must be guaranteed by an
"eligible guarantor institution" as defined by
Rule 17Ad-15 of the Securities Exchange Act of
1934, as amended)
D-1
Exhibit 4(w)
SECURITIES RESOLUTION NO.
OF
THE EMPIRE DISTRICT ELECTRIC COMPANY
I, __________, Corporate Secretary of The Empire District Electric Company
(the "Company"), do hereby certify that the attached is a true and correct copy
of Securities Resolution No.__ duly adopted by [the authorized officers of the
Company pursuant to authorization delegated to them by]1 the Board of Directors
of the Company at a meeting called and held on __________; and I do further
certify that said resolution has not been rescinded and remains in full force
and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate
seal of THE EMPIRE DISTRICT ELECTRIC COMPANY this _____ day of ___________.
By: ______________________________________
Name:
Title: Secretary
[CORPORATE SEAL]
- ----------
1 To be used if Securities Resolution adopted by officers pursuant to Board
delegation.
<PAGE>
% Notes Due
SECURITIES RESOLUTION NO.
OF
THE EMPIRE DISTRICT ELECTRIC COMPANY
The actions described below are taken by the [Board (as such term is
defined in the Indenture referred to below)](1) [duly authorized officers](2) of
THE EMPIRE DISTRICT ELECTRIC COMPANY (the "Company"), [pursuant to Board
delegation](2), in accordance with resolutions adopted [by the Board (as such
term is defined in the Indenture referred to below) of the Company](2) on
___________, and Section 2.01 of the Indenture dated September 10, 1999 (the
"Indenture") between the Company and Norwest Bank Minnesota, National
Association, as Trustee. Terms used herein and not defined have the same meaning
given such terms in the Indenture.
RESOLVED, that a new series of Securities is authorized as follows:
1. The title of the series is ____% ______ Notes Due ______ (the
"Notes").
2. The form of the Notes shall be substantially in form of Exhibit 1
hereto.
3. The Notes shall have the terms set forth in Exhibit 1.
This Securities Resolution shall be effective as of .
-----------------------
Name:
Title:
-----------------------
Name:
Title:
- ----------
1 To be used if Securities Resolution adopted by the Board.
2 To be used if Securities Resolution adopted by officers pursuant to Board
delegation.
[Letterhead of Anderson, Byrd, Richeson, Flaherty & Henrichs]
September 13, 1999
The Empire District Electric Company
602 Joplin, P. O. Box 127
Joplin, Missouri 64802
Ladies and Gentlemen:
We are acting as counsel for The Empire District Electric Company, a Kansas
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), pursuant to the Company's
Registration Statement on Form S-3 (the "Registration Statement"), of up to
$150,000,000 principal amount of shares of the Company's Common Stock, par value
$1.00 (the "New Common Stock"), and the related Preference Stock Purchase Rights
(the "Rights") and/or one or more series of the Company's unsecured debt
securities (the "New Debt Securities") and/or one or more series of the
Company's ____% First Mortgage Bonds, due __________.
The New Debt Securities are to be issued under the indenture dated
September 10, 1999 (the "Indenture") between the Company and Norwest Bank
Minnesota, National Association, as trustee, which may hereafter be supplemented
by one or more Securities Resolutions (as defined in the Indenture) creating
each series of New Debt Securities (a form of which is filed as an exhibit to
the Registration Statement).
We advise you that in our opinion:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Kansas.
2. The New Common Stock will have been duly authorized, legally issued,
fully paid and non-assessable when (i) the Registration Statement has become
effective under the Act, (ii) the Board of Directors of the Company has adopted
the appropriate resolutions, (iii) the State Corporation Commission of the State
of Kansas has issued its order authorizing the issuance and
<PAGE>
The Empire District Electric Company
Page 2
September 13, 1999
- - - - - - - - - - - - - - - - - - - -
sale of the New Common Stock and (iv) the New Common Stock has been sold by the
Company for cash at a price approved by the Board of Directors.
3. The New Debt Securities will have been duly authorized and legally
issued and will constitute binding obligations of the Company when (i) the
Registration Statement has become effective under the Act, (ii) the Board of
Directors of the Company and/or the authorized officers have adopted the
appropriate resolutions, (iii) the Securities Resolution, if in the form of a
supplemental indenture, has been duly executed and delivered, or, if in the form
of a resolution, has been duly adopted, (iv) the State Corporation Commission of
the State of Kansas has issued its order authorizing the issuance and sale of
the New Debt Securities and (v) the New Debt Securities have been duly issued in
accordance with the provisions of the Indenture and the Securities Resolution
relating thereto and sold by the Company for cash at a price approved by the
Board of Directors.
4. The issuance of the Rights has been validly authorized by all necessary
corporation action on the part of the Company and, when issued in accordance
with the Rights Agreement, dated July 26, 1990, as amended, between the Company
and ChaseMellon Shareholder Services, LLC, as Rights Agent, will be validly
issued.
We hereby consent to the use of a copy of this opinion as an exhibit to
said Registration Statement. We also consent to the use of our name and the
making of the statements with respect to our firm in the Registration Statement
and the Prospectus constituting a part thereof.
Sincerely,
/s/ James G. Flaherty
James G. Flaherty
[Letterhead of Spencer, Scott & Dwyer, P.C.]
September 13, 1999
The Empire District Electric Company
602 Joplin Street
Joplin, Missouri 64801
Dear Sirs:
We refer to the proposed issue and sale of up to $150,000,000 principal
amount of shares of Common Stock, par value $1.00 and/or _____% First Mortgage
Bonds due ______________________ (the "New Bonds"), in one or more series and/or
unsecured debt securities, in one or more series, from time to time, of The
Empire District Electric Company (the "Company"), with respect to which the
company is filing a Registration Statement on Form S-3 with the Securities and
Exchange Commission under the Securities Act of 1933.
The New Bonds are to be issued under the Indenture of Mortgage and Deed of
trust, dated as of September 1, 1944, under which Harris Trust and Savings Bank
and State Street Bank and Trust Company of Missouri, N.A. act as Trustees, as
heretofore supplemented and amended (the "Mortgage"), and as to be supplemented
by a supplemental indenture relating to each series of New Bonds (each a
"Supplemental Indenture").
We advise you that in our opinion:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Kansas.
<PAGE>
The Empire District Electric Company
September 13, 1999
Page Two
2. When (i) the Registration Statement has become effective under the
Securities Act of 1933, (ii) the Board of Directors of the Company has duly
adopted appropriate resolutions, (iii) the proposed Supplemental Indenture has
been duly executed and delivered, (iv) the New Bonds have been duly issued in
accordance with the provisions of the Mortgage and the Supplemental Indenture
relating thereto and sold by the Company for cash at a price approved by the
Board of Directors, and (v) the State Corporation Commission of the State of
Kansas, the Public Service Commission of the State of Missouri, the Corporation
Commission of the State of Oklahoma, and the Arkansas Public Service Commission
shall have issued their respective orders authorizing the issuance and sale of
the New Bonds and the mortgaging of the property of the Company in such States
to secure the New Bonds, the New Bonds will have been duly authorized and
legally issued and will constitute binding obligations of the Company.
We hereby consent to the use of a copy of this opinion as an exhibit to
said Registration Statement. We also consent to the use of our name and the
making of the statements with respect to our firm in the Registration Statement
and the prospectus constituting a part thereof.
Very truly yours,
SPENCER, SCOTT, & DWYER, P.C.
By /s/ E.P. Dwyer, Jr.
------------------------------------
E.P. Dwyer, Jr.
Exhibit 23(a)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 26, 1999 appearing on page 25
of The Empire District Electric Company's Annual Report on Form 10-K for the
year ended December 31, 1998. We also consent to the references to us under the
heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
St. Louis, Missouri
September 13, 1999
Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our reports dated
February 1, 1999, included in UtiliCorp United Inc.'s Form 10-K for the year
ended December 31, 1998, and to all references to our firm included in this
registration statement.
/s/ Arthur Andersen LLP
Kansas City, Missouri,
September 10, 1999
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of THE EMPIRE DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of Kansas, which Company
proposes to file with the Securities and Exchange Commission a Registration
Statement and amendments thereto under the Securities Act of 1933, as amended,
with respect to the issuance by the Company of shares of the Company's Common
Stock and/or of one or more new series of Unsecured Debt Securities issued under
the Company's Indenture dated as of September 10, 1999 and/or of one or more new
series of First Mortgage Bonds issued under the Company's Indenture of Mortgage
and Deed of Trust dated as of September 1, 1944, does hereby constitute and
appoint Myron W. McKinney and Robert B. Fancher, and each of them, the true and
lawful attorney-in-fact of the undersigned, in the name, place and stead of the
undersigned to sign the name of the undersigned to said Registration Statement
and any Amendment or Post-Effective Amendment thereto, and to cause the same to
be filed with the Securities and Exchange Commission, it being intended to give
and hereby giving and granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any act and thing necessary and
proper to be done in the premises as fully and to all intents and purposes as
the undersigned could do if personally present; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact, or any one of them, shall
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 10th day of September, 1999.
/s/ G.A. Knapp
------------------------------
G.A. Knapp
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of THE EMPIRE DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of Kansas, which Company
proposes to file with the Securities and Exchange Commission a Registration
Statement and amendments thereto under the Securities Act of 1933, as amended,
with respect to the issuance by the Company of shares of the Company's Common
Stock and/or of one or more new series of Unsecured Debt Securities issued under
the Company's Indenture dated as of September 10, 1999 and/or of one or more new
series of First Mortgage Bonds issued under the Company's Indenture of Mortgage
and Deed of Trust dated as of September 1, 1944, does hereby constitute and
appoint Myron W. McKinney and Robert B. Fancher, and each of them, the true and
lawful attorney-in-fact of the undersigned, in the name, place and stead of the
undersigned to sign the name of the undersigned to said Registration Statement
and any Amendment or Post-Effective Amendment thereto, and to cause the same to
be filed with the Securities and Exchange Commission, it being intended to give
and hereby giving and granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any act and thing necessary and
proper to be done in the premises as fully and to all intents and purposes as
the undersigned could do if personally present; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact, or any one of them, shall
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 10th day of September, 1999.
/s/ V.E. Brill
--------------------------
V.E. Brill
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of THE EMPIRE DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of Kansas, which Company
proposes to file with the Securities and Exchange Commission a Registration
Statement and amendments thereto under the Securities Act of 1933, as amended,
with respect to the issuance by the Company of shares of the Company's Common
Stock and/or of one or more new series of Unsecured Debt Securities issued under
the Company's Indenture dated as of September 10, 1999 and/or of one or more new
series of First Mortgage Bonds issued under the Company's Indenture of Mortgage
and Deed of Trust dated as of September 1, 1944, does hereby constitute and
appoint Myron W. McKinney and Robert B. Fancher, and each of them, the true and
lawful attorney-in-fact of the undersigned, in the name, place and stead of the
undersigned to sign the name of the undersigned to said Registration Statement
and any Amendment or Post-Effective Amendment thereto, and to cause the same to
be filed with the Securities and Exchange Commission, it being intended to give
and hereby giving and granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any act and thing necessary and
proper to be done in the premises as fully and to all intents and purposes as
the undersigned could do if personally present; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact, or any one of them, shall
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 10th day of September, 1999.
/s/ R.D. Hammons
-------------------------
R.D. Hammons
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of THE EMPIRE DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of Kansas, which Company
proposes to file with the Securities and Exchange Commission a Registration
Statement and amendments thereto under the Securities Act of 1933, as amended,
with respect to the issuance by the Company of shares of the Company's Common
Stock and/or of one or more new series of Unsecured Debt Securities issued under
the Company's Indenture dated as of September 10, 1999 and/or of one or more new
series of First Mortgage Bonds issued under the Company's Indenture of Mortgage
and Deed of Trust dated as of September 1, 1944, does hereby constitute and
appoint Myron W. McKinney and Robert B. Fancher, and each of them, the true and
lawful attorney-in-fact of the undersigned, in the name, place and stead of the
undersigned to sign the name of the undersigned to said Registration Statement
and any Amendment or Post-Effective Amendment thereto, and to cause the same to
be filed with the Securities and Exchange Commission, it being intended to give
and hereby giving and granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any act and thing necessary and
proper to be done in the premises as fully and to all intents and purposes as
the undersigned could do if personally present; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact, or any one of them, shall
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of September, 1999.
/s/ R.C. Hartley
----------------------------
R.C. Hartley
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of THE EMPIRE DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of Kansas, which Company
proposes to file with the Securities and Exchange Commission a Registration
Statement and amendments thereto under the Securities Act of 1933, as amended,
with respect to the issuance by the Company of shares of the Company's Common
Stock and/or of one or more new series of Unsecured Debt Securities issued under
the Company's Indenture dated as of September 10, 1999 and/or of one or more new
series of First Mortgage Bonds issued under the Company's Indenture of Mortgage
and Deed of Trust dated as of September 1, 1944, does hereby constitute and
appoint Myron W. McKinney and Robert B. Fancher, and each of them, the true and
lawful attorney-in-fact of the undersigned, in the name, place and stead of the
undersigned to sign the name of the undersigned to said Registration Statement
and any Amendment or Post-Effective Amendment thereto, and to cause the same to
be filed with the Securities and Exchange Commission, it being intended to give
and hereby giving and granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any act and thing necessary and
proper to be done in the premises as fully and to all intents and purposes as
the undersigned could do if personally present; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact, or any one of them, shall
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 10th day of September, 1999.
/s/ J.R. Herschend
---------------------------
J.R. Herschend
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of THE EMPIRE DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of Kansas, which Company
proposes to file with the Securities and Exchange Commission a Registration
Statement and amendments thereto under the Securities Act of 1933, as amended,
with respect to the issuance by the Company of shares of the Company's Common
Stock and/or of one or more new series of Unsecured Debt Securities issued under
the Company's Indenture dated as of September 10, 1999 and/or of one or more new
series of First Mortgage Bonds issued under the Company's Indenture of Mortgage
and Deed of Trust dated as of September 1, 1944, does hereby constitute and
appoint Myron W. McKinney and Robert B. Fancher, and each of them, the true and
lawful attorney-in-fact of the undersigned, in the name, place and stead of the
undersigned to sign the name of the undersigned to said Registration Statement
and any Amendment or Post-Effective Amendment thereto, and to cause the same to
be filed with the Securities and Exchange Commission, it being intended to give
and hereby giving and granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any act and thing necessary and
proper to be done in the premises as fully and to all intents and purposes as
the undersigned could do if personally present; and the undersigned hereby
ratifies and confirms all that said attorneys-in-fact, or any one of them, shall
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 10th day of September, 1999.
/s/ R.E. Mayes
-----------------------
R.E. Mayes
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street; Chicago, Illinois 60603
(Address of principal executive offices)
Frank A. Pierson; Harris Trust and Savings Bank;
111 West Monroe Street; Chicago, Illinois, 60603
312/461-2533
(Name, address and telephone number for agent for service)
THE EMPIRE DISTRICT ELECTRIC COMPANY.
(Name of obligor)
Kansas
(State of Incorporation)
44-0236370
(I.R.S. Employer Identification Number)
602 Joplin Street
Joplin, Missouri 64801
(Address of principal executive offices)
Debt Securities
First Mortgage Bonds, _________________% Series due
(Title of Indenture Securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of Governors
of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in effect
which includes the authority of the trustee to commence business and
to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in
effect and includes the authority of the Trustee to commence business
and to exercise corporate trust powers was filed in connection with
the Registration Statement of Louisville Gas and Electric Company,
File No. 2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in
connection with the Registration Statement of C-Cube Microsystems,
Inc.; File No. 33-97166, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 2nd day of September , 1999.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Frank A. Pierson
------------------------------
Frank A. Pierson
Vice President
EXHIBIT A
The consents of the Trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Frank A. Pierson
-----------------------------
Frank A. Pierson
Vice President
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of March 31, 1999, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on March 31, 1999, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve System.
Published in accordance with a call made by the Commissioner of Banks and Trust
Companies of the State of Illinois and by the Federal Reserve Bank of this
District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin $1,237,336
Interest bearing $137,061
balances....................................................................
Securities:.................................................................
a. Held-to-maturity securities $0
b. Available-for-sale securities $5,455,837
Federal funds sold and securities purchased under agreements to resell $87,250
Loans and lease financing receivables:
Loans and leases, net of unearned income .............................. $9,500,293
LESS: Allowance for loan and lease losses ............................ $109,979
-----------------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b) .................................................. $9,390,314
Assets held in trading accounts ............................................ $161,168
Premises and fixed assets (including capitalized leases).................... $255,438
Other real estate owned .................................................... $243
Investments in unconsolidated subsidiaries and associated companies......... $75
Customer's liability to this bank on acceptances outstanding................ $40,869
Intangible assets .......................................................... $254,549
Other assets ............................................................... $1,183,465
-----------------
TOTAL ASSETS $18,203,605
=================
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices..................................................... $9,099,851
Non-interest bearing................................................. $2,743,074
Interest bearing..................................................... $6,356,777
In foreign offices, Edge and Agreement subsidiaries, and IBF's.......... $1,822,400
Non-interest bearing................................................. $26,371
Interest bearing .................................................... $1,796,029
Federal funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds purchased & securities sold under agreements to repurchase..... $3,354,582
Trading Liabilities ......................................................... 96,517
Other borrowed money: .......................................................
a. With remaining maturity of one year or less ............................. $1,681,346
b. With remaining maturity of more than one year ........................... $0
Bank's liability on acceptances executed and outstanding .................... $40,869
Subordinated notes and debentures ........................................... $225,000
Other liabilities ........................................................... $390,234
------------
TOTAL LIABILITIES $16,890,799
============
EQUITY CAPITAL
Common stock $100,000
Surplus..................................................................... $608,510
a. Undivided profits and capital reserves.................................. $616,084
b. Net unrealized holding gains (losses) on available-for-sale securities.. ($11,788)
-----------
TOTAL EQUITY CAPITAL $1,312,806
===========
Total liabilities, limited-life preferred stock, and equity capital......... $18,203,605
===========
</TABLE>
I, Pamela Piarowski, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
PAMELA PIAROWSKI
4/30/99
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
JAMES J. GLASSER
Directors.
Exhibit 25(b)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)__
STATE STREET BANK AND TRUST COMPANY OF MISSOURI, N.A.
(Exact name of trustee as specified in its charter)
U.S. national bank 43-1745664
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
127 West 10th Street, Kansas City, Missouri 64105
(Address of principal executive offices) (Zip Code)
Susan James, Vice President
State Street Bank and Trust Company of Missouri, N.A.
211 North Broadway, Suite 3900
St. Louis, Missouri 63102
314/206-3024
(Name, address and telephone number of agent for service)
--------
THE EMPIRE DISTRICT ELECTRIC COMPANY.
(Exact name of obligor as specified in its charter)
Kansas 44-0236370
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
602 Joplin Street
Joplin, Missouri 64801
(Address of principal executive offices) (Zip Code)
--------
First Mortgage Bonds, ___% Due __
(Title of indenture securities)
<PAGE>
GENERAL
ITEM 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject.
Comptroller of the Currency of the United States, Washington, D.C.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its parent, State
Street Bank and Trust Company. (See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the articles of association of the Trustee, as now in
effect, is attached hereto as Exhibit 1 and made a part hereof.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
A copy of the certificate of the Comptroller of the Currently
authorizing the trustee to commence the business of banking as a national
banking association is attached hereto as Exhibit 2 and made a part hereof.
3. A copy of the authorization of the trustee to exercise corporate
trust powers, if such authorization is not contained in the documents
specified in paragraph (1) or (2), above.
A copy of the certificate of the Comptroller of the Currency dated
September 15, 1995 authorizing the trustee to exercise corporate trust
powers is attached hereto as Exhibit 3 and made a part hereof.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the existing amended and restated by-laws of the trustee is
attached hereto as Exhibit 4 and made a part hereof.
1
<PAGE>
5. A copy of each indenture referred to in Item 4. if the obligor is
in default.
Not applicable.
6. The consents of United States institutional trustees required by
Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act is
annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority is annexed hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility and Qualification
which relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to it by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company of Missouri N.A., a
national banking association existing under the laws of the United States of
America, has duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of St. Louis and the State of Missouri, on the 2nd day of September, 1999.
STATE STREET BANK AND TRUST COMPANY
OF MISSOURI, N.A.
By: /s/ ROBERT A. CLASQUIN
-------------------------------
Robert A. Clasquin
Assistant Vice President
<PAGE>
EXHIBIT 1
ARTICLES OF ASSOCIATION
OF
STATE STREET BANK AND TRUST COMPANY OF MISSOURI,
NATIONAL ASSOCIATION
For the purpose of organizing an Association to carry on the business of a
limited purpose trust company under the laws of the United States, the
undersigned do enter into the following Articles of Association:
FIRST. The title of this Association shall be State Street Bank and Trust
Company of Missouri, National Association.
SECOND. The Main Office of the Association shall be in the City of Kansas
City, County of Jackson, State of Missouri. The business of the Association will
be limited to the operations of a national trust company and to support
activities incidental thereto. The Association will not expand or alter its
business beyond that stated in this Article Second without the prior approval of
the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five shareholders, the exact number to be fixed
and determined from time to time by resolution of a majority of the full Board
of Directors or by resolution of the shareholders at any annual or special
meeting thereof. Each Director, during the full term of his or her directorship,
shall own a minimum of $1,000 aggregate par value of stock of this Association
or a minimum par, market value or equity interest of $1,000 of stock in the bank
holding company controlling this Association.
Any vacancy in the Board of Directors may be filled by action of the Board
of Directors; provided, however, that a majority of the full Board of Directors
may not increase the number of Directors to a number which: (1) exceeds by more
than two the number of Directors last elected by shareholders where the number
was 15 or less; and (2) exceeds by more than four the number of Directors last
elected by shareholders where the number was 16 or more, but in no event shall
the number of directors exceed 25.
Terms of Directors, including Directors selected to fill vacancies, shall
expire at the next regular meeting of shareholders at which Directors are
elected, unless the Directors resign or are removed from office. Despite the
expiration of a Director's term, the Director shall continue to serve until his
or her successor is elected and qualifies or until there is a decrease in the
number of Directors and his or her position is eliminated.
FOURTH. There shall be an annual meeting of the shareholders to elect
Directors and transact whatever other business may be brought before the
meeting. It shall be held at the main office or any other convenient place as
the Board of Directors may designate, on the day of each year specified
therefore in the By-laws, but if no election is held on that day, it may be held
on any subsequent day according to such lawful rules as may be prescribed by the
Board of Directors.
<PAGE>
Nominations for election to the Board of Directors may be made by the Board
of Directors or by any shareholder of any outstanding class of capital stock of
this Association entitled to vote for election of Directors. Nominations other
than those made by or on behalf of the existing management shall be made in
writing and be delivered or mailed to the president of this Association and to
the Comptroller of the Currency, Washington, D.C., not less than 14 days nor
more than 50 days prior to any meeting of shareholders called for the election
of Directors; provided, however, that if less than 21 days notice of the meeting
is given to the shareholders, such nominations shall be mailed or delivered to
the president of this Association and to the Comptroller of the Currency not
later than the close of business on the seventh day following the day on which
the notice of meeting was mailed. Such notification shall contain the following
information to the extent known to the notifying shareholder: the name and
address of each proposed nominee; the principal occupation of each proposed
nominee; the total number of shares of capital stock of this Association that
will be voted for each proposed nominee; the name and residence address of the
notifying shareholder; and the number of shares of capital stock of this
Association owned by the notifying shareholder. Nominations not made in
accordance herewith may, in his or her discretion, be disregarded by the
chairperson of the meeting, and upon his or her instructions, the vote tellers
may disregard all votes cast for each such nominee.
FIFTH. The authorized amount of capital stock of this Association shall be
1,000,000 shares of common stock of the par value of one dollar ($1) each; but
said capital stock may be increased or decreased from time to time, in
accordance with the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of this Association
shall have any preemptive or preferential right of subscription to any shares of
any class of stock of this Association, whether now or hereafter authorized, or
to any obligations convertible into stock of this Association, issued, or sold,
nor any right of subscription to any thereof other than such, if any, as the
Board of Directors, in its discretion may from time to time determine and at
such price as the Board of Directors may from time to time fix.
Transfers of the Association's capital stock are subject to the prior
approval of a federal depository institution regulatory agency. If no other
agency approval is required, the Comptroller of the Currency's approval shall be
obtained prior to the transfers. In such cases where the Comptroller of the
Currency approval is required, the Comptroller of the Currency will apply the
definitions and standards set forth in the Change in Bank Control Act and the
Comptroller of the Currency's implementing regulation (12 U.S.C. 1817(j) and 12
C.F.R. 5.50) to ownership changes in the Association.
This Association, at any time and from time to time, may authorize and
issue debt obligations, whether or not subordinated, without the approval of the
shareholders.
-2-
<PAGE>
SIXTH. The Board of Directors shall appoint one of its members President of
this Association, who shall be Chairperson of the Board, unless the Board
appoints another director to be the Chairperson. The Board of Directors shall
have the power to appoint one or more Vice Presidents; and to appoint a Cashier
and such other officers and employees as may be required to transact the
business of this Association.
The Board of Directors shall have the power to define the duties of the
officers and employees of this Association; to fix the salaries to be paid to
the officers and employees; to dismiss officers and employees; to require bonds
from officers and employees and to fix the penalty thereof; to regulate the
manner in which any increase of the capital of this Association shall be made;
to manage and administer the business and affairs of this Association; to make
all By-laws that it may be lawful for the Board of Directors to make; and
generally to do and perform all acts that it may be legal for a Board of
Directors to do and perform.
SEVENTH. The Board of Directors shall have the power to change the location
of the main office to any other place within the limits of the City of Kansas
City, without the approval of the shareholders, and shall have the power to
establish or change the location of any branch or branches of this Association
to any other location, without the approval of the shareholders.
EIGHTH. The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholder
owning, in the aggregate, not less than ten percent of the stock of this
Association, may call a special meeting of shareholders at any time. Unless
otherwise provided by the laws of the United States, a notice of the time,
place, and purpose of every annual and special meeting of the shareholders shall
be given by first-class mail, postage prepaid, mailed at least ten days prior to
the date of such meeting to each shareholder of record at his address as shown
upon the books of this Association.
-3-
<PAGE>
TENTH. This Association shall to the fullest extent legally permissible
indemnify each person who is or was a director, officer, employee or other agent
of this Association and each person who is or was serving at the request of this
Association as a director, trustee, officer, employee or other agent of another
organization or of any partnership, joint venture, trust, employee benefit plan
or other enterprise or organization against all liabilities, costs and expenses,
including but not limited to amounts paid in satisfaction of judgments, in
settlement or as fines and penalties, and counsel fees and disbursements,
reasonably incurred by him in connection with the defense or disposition of or
otherwise in connection with or resulting from any action, suit or other
proceeding, whether civil, criminal, administrative or investigative, before any
court or administrative or legislative or investigative body, in which he may be
or may have been involved as a party or otherwise or with which he may be or may
have been threatened, while in office or thereafter, by reason of his being or
having been such a director, officer, employee, agent or trustee, or by reason
of any action taken or not taken in any such capacity, except with respect to
any matter as to which he shall have been finally adjudicated by a court of
competent jurisdiction not to have acted in good faith in the reasonable belief
that his action was in the best interests of the corporation (any person serving
another organization in one or more of the indicated capacities at the request
of this Association who shall not have been adjudicated in any proceeding not to
have acted in good faith in the reasonable belief that his action was in the
best interest of such other organization shall be deemed so to have acted in
good faith with respect to the National Trust Company) or to the extent that
such matter relates to service with respect to an employee benefit plan, in the
best interest of the participants or beneficiaries of such employee benefit
plan. Expenses, including but not limited to counsel fees and disbursements, so
incurred by any such person in defending any such action, suit or proceeding,
shall be paid from time to time by this Association in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the person indemnified to repay the amounts so paid if it shall
ultimately be determined that indemnification of such expenses is not authorized
hereunder.
As to any matter disposed of by settlement by any such person, pursuant to
a consent decree or otherwise, no such indemnification either for the amount of
such settlement or for any other expenses shall be provided unless such
settlement shall be approved as in the best interests of the National Trust
Company, after notice that it involves such indemnification, (a) by a vote of a
majority of the disinterested directors then in office (even though the
disinterested directors be less than a quorum), or (b) by any disinterested
person or persons to whom the question may be referred by vote of a majority of
such disinterested directors, or (c) by vote of the holders of a majority of the
outstanding stock at the time entitled to vote for directors, voting as a single
class, exclusive of any stock owned by any interested person, or
-4-
<PAGE>
(d) by any disinterested person or persons to whom the question may be referred
by vote of the holders of a majority of such stock. No such approval shall
prevent the recovery from any such director, officer, employee, agent or trustee
of any amounts paid to him or on his behalf as indemnification in accordance
with the preceding sentence if such person is subsequently adjudicated by a
court of competent jurisdiction not to have acted in good faith in the
reasonable belief that his action was in the best interests of this Association.
The right of indemnification hereby provided shall not be exclusive of or affect
any other rights to which any director, officer, employee, agent or trustee may
be entitled or which may lawfully be granted to him. As used herein, the terms
"director", "officer", "employee", "agent", and "trustee", include their
respective executors, administrators and other legal representatives, an
"interested" person is one against whom the action, suit or other proceeding in
question or another action, suit or other proceeding on the same or similar
grounds is then or had been pending or threatened, and a "disinterested" person
is a person against whom no such action, suit or other proceeding is then or had
been pending or threatened. By action of the board of directors, notwithstanding
any interest of the directors in such action, this Association may purchase and
maintain insurance, in such amounts as the board of directors may from time to
time deem appropriate, on behalf of any person who is or was a director,
officer, employee or other agent of this Association, or is or was serving at
the request of this Association as a director, trustee, officer, employee or
other agent of another organization or of any partnership, joint venture, trust,
employee benefit plan or other enterprise or organization against any liability
incurred by him in any such capacity, or arising out of his status as such,
whether or not this Association would have the power to indemnify him against
such liability.
Nothing contained in this Article Tenth shall be construed to (i) allow the
indemnification of or insurance coverage for a director, trustee, officer,
employee or agent of this Association against expenses, penalties or other
payments incurred in an administrative action instituted by an appropriate bank
regulatory agency which results in a final order assessing civil money penalties
or requires the payments of money to the Association, or (ii) exceed the
provisions of Massachusetts General Laws, chapter 156B, section 67, as in effect
from time to time.
ELEVENTH. These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of a
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount.
TWELFTH. This Association may be a partner in any business or enterprise
which this Association would have power to conduct by itself.
-5-
<PAGE>
IN WITNESS WHEREOF, we have hereunto set our hands this 27th day of April,
1995.
/s/ MARSHALL N. CARTER
----------------------
Marshall N. Carter
/s/ DAVID A. SPINA
----------------------
David A. Spina
/s/ A. EDWARD ALLINSON
----------------------
A. Edward Allinson
/s/ RONALD E. LOGUE
---------------------
Ronald E. Logue
/s/ JOHN R. TOWERS
----------------------
John R. Towers
-6-
<PAGE>
EXHIBIT 2
[COMPTROLLER OF THE CURRENCY TREASURY DEPARTMENT LOGO]
Washington, D.C.
WHEREAS, satisfactory evidence has been presented to the Comptroller of the
Currency that STATE STREET BANK AND TRUST COMPANY OF MISSOURI, NATIONAL
ASSOCIATION located in KANSAS CITY State of MISSOURI has complied with all
provisions of the statutes of the United States required to be complied with
before being authorized to commence the business of banking as a National
Banking Association;
NOW, THEREFORE, I hereby certify that the above-named association is
authorized to commence the business of banking as a National Banking
Association.
IN TESTIMONY WHEREOF, witness my signature and seal of
office this FIFTEENTH day of SEPTEMBER 1995.
/s/ DAVID A. BOMGAARS
-----------------------------------------
District Administrator
Comptroller of the Currency
Charter No. 22874
<PAGE>
EXHIBIT 3
[LOGO]
Comptroller of the Currency
Administrator of National Banks
Northeastern District
1114 Avenue of the Americas, Suite 3900
New York, New York 10036
TRUST PERMIT
WHEREAS, STATE STREET BANK AND TRUST COMPANY OF MISSOURI, NATIONAL
ASSOCIATION, located in KANSAS CITY, state of MISSOURI, being a National
Banking Association, organized under the statutes of the United States,
has made application for authority to act as fiduciary;
AND WHEREAS, applicable provisions of the statutes of the United States
authorize the grant of such authority;
NOW THEREFORE, I hereby certify that the said association is authorized to act
in all fiduciary capacities permitted by such statutes.
IN TESTIMONY WHEREOF, witness my signature and seal of Office this 15TH day of
SEPTEMBER, 1995.
CHARTER NO. 22874
/s/ DAVID A. BOMGAARS
---------------------------------
David A. Bomgaars
District Administrator
**OCC SEAL**
<PAGE>
EXHIBIT 4
STATE STREET BANK AND TRUST COMPANY OF MISSOURI,
NATIONAL ASSOCIATION
AMENDED AND RESTATED
BY-LAWS
ARTICLE I
Meetings of Shareholders
Section 1.1 Annual Meeting. The regular annual meeting of the shareholders
to elect directors and transact whatever other business may properly come before
the meeting, shall be held at the Main Office of the National Trust Company, in
the City of Kansas City, State of Missouri or such other places as the Board of
Directors may designate, at 10 o'clock, on the fourth Wednesday of April of each
year. Notice of such meeting shall be mailed, postage prepaid, at least ten days
prior to the date thereof, addressed to each shareholder at his/her address
appearing on the books of the National Trust Company. If for any cause, an
election of directors is not made on that day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting.
Section 1.2. Special Meetings. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by the Board of Directors or by any shareholder owning, in the
aggregate, not less than 10 percent of the stock of the National Trust Company.
Every such special meeting, unless otherwise provided by law, shall be called by
mailing, postage prepaid, not less than ten days prior to the date fixed for
such meeting, to each shareholder at his address appearing on the books of the
National Trust Company a notice stating the purpose of the meeting.
Section 1.3. Nominations for Director. Nominations for election to the
Board of Directors may be made by the Board of Directors or by any shareholder
of any outstanding class of capital stock of the National Trust Company entitled
to vote for the election of directors. Nominations, other than those made by or
on behalf of the existing management of the National Trust Company, shall be
made in writing and shall be delivered or mailed to the President of the
National Trust Company and to the Comptroller of the Currency, Washington, D.C.,
not less than 14 days nor more than 50 days prior to any meeting of shareholders
called for the election of directors, provided however, that if less than 21
days' notice of the meeting is given to shareholders, such nomination shall be
mailed or delivered to the President of the National Trust Company and to the
Comptroller of the Currency not later than the close of business on the seventh
day following the day on which the notice of meeting was mailed. Such
notification shall contain the following information to the extent known to the
notifying shareholder:
<PAGE>
(a) the name and address of each proposed nominee; (b) the principal
occupation of each proposed nominee; (c) the total number of shares of capital
stock of the National Trust Company that will be voted for each proposed
nominee; (d) the name and residence address of the notifying shareholder; and
(e) the number of shares of capital stock of the National Trust Company owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his/her discretion, be disregarded by the Chairperson of the meeting, and upon
his/her instructions, the vote tellers may disregard all votes cast for each
such nominee.
Section l.4. Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of this National Trust Company shall act as proxy. Proxies shall be valid only
for one meeting, to be specified therein, and any adjournments of such meeting.
Proxies shall be dated and shall be filed with the records of the meeting.
Section 1.5. Quorum. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law; but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board of Directors shall have the
power to manage and administer the business and affairs of the National Trust
Company. Except as expressly limited by law, all corporate powers of the
National Trust Company shall be vested in and may be exercised by the Board of
Directors.
Section 2.2. Number. the Board of Directors shall consist of not less than
five nor more than twenty-five shareholders, the exact number within such
minimum and maximum limits to be fixed and determined from time to time by
resolution of a majority of the full Board or by resolution of the shareholders
at any meeting thereof.
Section 2.3. Organization Meeting. The Cashier, upon receiving the results
of any election, shall notify the directors-elect of their election and of the
time at which they are required to meet at the Main Office of the National Trust
Company to organize the new Board and elect and appoint officers of the National
Trust Company for the succeeding year. Such meeting shall be held on the day of
the election or as soon thereafter as practicable, and, in any event, within
thirty days thereof. If, at the time fixed for such meeting, there shall not be
a quorum present, the Directors present may adjourn the meeting, from time to
time, until a quorum is obtained.
-2-
<PAGE>
Section 2.4. Regular Meetings. Regular Meetings of the Board of Directors
shall be held, without notice, at least once in each quarter on such days and at
such hours as the Directors may from time to time determine. When any regular
meeting of the Board falls upon a holiday, the meeting shall be held on the next
banking business day unless the Board shall designate some other day. (Amended
1/1/97)
Section 2.5. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board of the National Trust Company, or at
the request of three or more directors. Each member of the Board of Directors
shall be given notice stating the time and place, by telegram, letter, or in
person, of each such special meeting.
Section 2.6. Quorum. A majority of the directors shall constitute a quorum
at any meeting, except when otherwise provided by law; but a less number may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice.
Section 2.7. Vacancies. When any vacancy occurs among the directors, the
remaining members of the Board, in accordance with the laws of the United
States, may appoint a director to fill such vacancy at any regular meeting of
the Board, or at a special meeting called for that purpose in conformance with
Section 2.2 of this Article.
Section 2.8. Action Without a Meeting. Any action required or permitted to
be taken at any meeting of the Directors may be taken without a meeting if all
the Directors consent to the action in writing and the written consents are
filed with the records of the meetings of the Directors. Such consents shall be
treated for all purposes as a vote at a meeting.
Section 2.9. Meeting by Telecommunications. Members of the Board of
Directors or any committee elected thereby may participate in a meeting of such
Board or committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in a meeting can hear each
other at the time and participation by such means shall constitute presence in
person at the meeting.
ARTICLE III
Committees of the Board
Section 3.1. Investment Committee. There shall be an Investment Committee
composed of not less than two Directors, appointed by the Board annually or more
often. The Investment Committee shall have the power to insure adherence to
Investment Policy, to recommend amendments thereto, to purchase and sell
securities, to exercise authority regarding investments and to exercise, when
the Board is not in session, all other powers of the Board regarding investment
securities that may be lawfully delegated. The Investment Committee shall keep
minutes of its meetings, and such minutes shall be submitted at the next regular
meeting of the Board of Directors at which a quorum is present, and any action
taken by the Board with respect thereto shall be entered in the minutes of the
Board.
-3-
<PAGE>
Section 3.2. Examining Committee. There shall be an Examining Committee
composed of not less than two directors, exclusive of any active officers,
appointed by the Board annually or more often, whose duty it shall be to make an
examination at least once during each calendar year into the affairs of the
National Trust Company or cause suitable examinations to be made by auditors
responsible only to the Board of Directors and to report the result of such
examination in writing to the Board at the next regular meeting thereafter. Such
report shall state whether the National Trust Company is in a sound condition,
and whether adequate internal controls and procedures are being maintained shall
recommend to the Board of Directors such changes in the manner of conducting the
affairs of the National Trust Company as shall be deemed advisable. (Amended
8/5/97)
Section 3.3. Other Committees. The Board of Directors may appoint, from
time to time, from its own members, other committees of one or more persons, for
such purposes and with such powers as the Board may determine. However, a
committee may not authorize distribution of assets or dividends; approve action
required to be approved by shareholders; fill vacancies on the board of
directors or any of its committees; amend articles of association; adopt, amend
or repeal by-laws; or authorize or approve issuance or sale or contract for sale
of shares, or determine the designation and relative rights, preferences and
limitations of a class or series of shares.
ARTICLE IV
Officers and Employees
Section 4.1. Chairperson of the Board. The Board of Directors shall appoint
one of its members to be Chairperson of the Board to serve at its pleasure. Such
person shall preside at all meetings of the Board of Directors. The Chairperson
of the Board shall supervise the carrying out of the policies adopted or
approved by the Board; shall have general executive powers, as well as the
specific powers conferred by these Bylaws; and shall also have and may exercise
such further powers and duties as from time to time may be conferred upon, or
assigned by the Board of Directors.
Section 4.2. President. The Board of Directors shall appoint one of its
members to be President of the National Trust Company. In the absence of the
Chairperson, the President shall preside at any meeting of the Board. The
President shall have general executive powers, and shall have and may exercise
any and all other powers and duties pertaining by law, regulations, or practice,
to the Office of President, or imposed by these Bylaws. The President shall also
have and may exercise such further powers and duties as from time to time may be
conferred, or assigned by the Board of Directors.
Section 4.3. Vice President. The Board of Directors may appoint one or more
Vice Presidents. Each Vice President shall have such powers and duties as may be
assigned by the Board of Directors. One Vice President shall be designated by
the Board of Directors, in the absence of the President, to perform all the
duties of the President.
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<PAGE>
Section 4.4. Secretary. The Board of Directors shall appoint a Secretary,
Cashier, or other designated officer who shall be Secretary of the Board and of
the National Trust Company, and shall keep accurate minutes of all meetings. The
Secretary shall attend to the giving of all notices required by these Bylaws to
be given; shall be custodian of the corporate seal, records, documents and
papers of the National Trust Company; shall provide for the keeping of proper
records of all transactions of the National Trust Company; shall have and may
exercise any and all other powers and duties pertaining by law, regulation or
practice, to the Office of Cashier, or imposed by these Bylaws; and shall also
perform such other duties as may be assigned from time to time, by the Board of
Directors.
Section 4.5. Other Officers. The Board of Directors may appoint one or more
Executive Vice Presidents, Senior Vice Presidents, Assistant Vice Presidents,
one or more Assistant Secretaries, one or more Assistant Cashiers, one or more
Managers and Assistant Managers of offices and such other officers and attorneys
in fact as from time to time may appear to the Board of Directors to be required
or desirable to transact the business of the National Trust Company. Such
officers shall respectively exercise such powers and perform such duties as
pertain to the several offices, or as may be conferred upon, or assigned to,
them by the Board of Directors, the Chairperson of the Board, or the President.
The Board of Directors may authorize an officer to appoint one or more officers
or assistant officers.
Section 4.6. Tenure of Office. The President and all other officers shall
hold office for the current year for which the Board was elected, unless they
shall resign, become disqualified, or be removed; and any vacancy occurring in
the Office of President shall be filled promptly by the Board of Directors.
Section 4.7. Resignation. An officer may resign at any time by
delivering notice to the National Trust Company. A resignation is effective
when the notice is given unless the notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 5.1. Trust Department. There shall be a department of the
National Trust Company known as the Trust Department that shall perform the
fiduciary responsibilities of the National Trust Company.
Section 5.2. Trust Officer. There shall be a Trust Officer of this National
Trust Company whose duties shall be to manage, supervise and direct all the
activities of the Trust Department. Such persons shall do or cause to be done
all things necessary or proper in carrying on the business of the Trust
Department according to provisions of law and applicable regulations; and shall
act pursuant to opinion of counsel where such opinion is deemed necessary.
Opinions of counsel shall be retained on file in connection with all important
matters pertaining to fiduciary activities. The Trust Officer shall be
responsible for all assets and documents held by the National Trust Company in
connection with fiduciary matters.
-5-
<PAGE>
The Board of Directors may appoint other trust officers of the Trust
Department, as it may deem necessary, with such duties as may be assigned.
Section 5.3. Trust Investment Committee. There shall be a Trust Investment
Committee of this National Trust Company composed of not less than two members,
who shall be capable and experienced officers or directors of the National Trust
Company. All investments of funds held in a fiduciary capacity shall be made,
retained or disposed of only with the approval of the Trust Investment
Committee, and the Committee shall keep minutes of all its meetings, showing the
disposition of all matters considered and passed upon by it. The Committee
shall, promptly after the acceptance of an account for which the National Trust
Company has investment responsibilities, review the assets thereof, to determine
the advisability of retaining or disposing of such assets. The Committee shall
conduct a similar review at least once during each calendar year thereafter and
within 15 months of the last such review. A report of all such reviews, together
with the action taken as a result thereof, shall be noted in the minutes of the
Committee.
Section 5.4. Trust Audit Committee. The Board of Directors shall appoint a
committee of not less than two directors, exclusive of any active officer of the
National Trust Company, which shall, at least once during each calendar year
make suitable audits of the Trust Department or cause suitable audits to be made
by auditors responsible only to the Board of Directors, and at such time shall
ascertain whether the Department has been administered according to law, Part 9
of the Regulations of the Comptroller of the Currency, and sound fiduciary
principles. (Amended 8/5/97)
Section 5.5. Fiduciary Files. There shall be maintained in the Trust
Department files all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section 5.6. Trust Investments. Funds held in a fiduciary capacity shall be
invested according to the instrument establishing the fiduciary relationship and
local law. Where such instrument does not specify the character and class of
investments to be made and does not vest in the National Trust Company a
discretion in the matter, funds held pursuant to such instrument shall be
invested in investments in which corporate fiduciaries may invest under local
law.
ARTICLE VI
Stock and Stock Certificates
Section 6.1 Transfers. Shares of stock shall be transferable on the books
of the National Trust Company, and a transfer book shall be kept in which all
transfers of stock shall be recorded. Every person becoming a shareholder by
such transfer shall, in proportion to his shares, succeed to all rights of the
prior holder of such shares.
-6-
<PAGE>
Section 6.2. Stock Certificates. Certificates of stock shall bear the
signature of the President (which may be engraved, printed or impressed), and
shall be signed manually or by facsimile process by the Secretary, Assistant
Secretary, Cashier, Assistant Cashier, or any other officer appointed by the
Board of Directors for that purpose, to be known as an Authorized Officer, and
the seal of the National Trust Company shall be engraved thereon. Each
certificate shall recite on its face that the stock represented thereby is
transferable only upon the books of the National Trust Company properly
endorsed.
ARTICLE VII
Corporate Seal
The President, the Cashier, the Secretary or any Assistant Cashier or
Assistant Secretary, or other officer thereunto designated by the Board of
Directors, shall have authority to affix the corporate seal to any document
requiring such seal, and to attest the same. Such seal shall be substantially in
the following form:
ARTICLE VIII
Miscellaneous Provisions
Section 8.1. Fiscal Year. The Fiscal Year of the National Trust
Company shall be the calendar year.
Section 8.2. Execution of Instruments. All agreements, indentures,
mortgages, deeds, conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions, schedules,
accounts, affidavits, bonds, undertakings, proxies and other instruments or
documents may be signed, executed, acknowledged, verified, delivered or accepted
in behalf of the National Trust Company by the Chairperson of the Board, or the
President, or any Executive Vice President, or any Vice President, or the
Secretary, or the Cashier. Any such instruments may also be executed,
acknowledged, verified, delivered or accepted in behalf of the National Trust
Company in such other manner and by such other officers as the Board of
Directors may from time to time direct. The provisions of this Section 8.2. are
supplementary to any other provision of these Bylaws.
Section 8.3. Records. The Articles of Association, the By-laws and the
proceedings of all meetings of the shareholders, the Board of Directors, and
standing committees of the Board, shall be recorded in appropriate minute books
provided for the purpose. The minutes of each meeting shall be signed by the
Secretary, Cashier or other Officer appointed to act as Secretary of the
meeting.
-7-
<PAGE>
ARTICLE IX
By-laws
Section 9.1. Inspection. A copy of the By-laws, with all amendments
thereto, shall at all times be kept in a convenient place at the Main Office of
the National Trust Company, and shall be open for inspection to all
shareholders, during banking hours.
Section 9.2. Amendments. The By-laws may be amended, altered or
repealed, at any regular meeting of the Board of Directors, by a vote of a
majority of the total number of the Directors.
-8-
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issuance by Empire District
Electric Company of its First Mortgage Bonds ____% Due ______________, we hereby
consent that reports of examination by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
OF MISSOURI N.A.
By: /s/ ROBERT A. CLASQUIN
--------------------------------
Robert A. Clasquin
Assistant Vice President
Dated: September 2, 1999
<PAGE>
EXHIBIT 7
STATE STREET BANK AND TRUST COMPANY OF MISSOURI, N.A.
CONSOLIDATED STATEMENT OF CONDITION
MAY 1999
ASSETS 1999 1998
---- ----
Cash and Due from Bank $ 1,677,360.00 $ 611,529.00
Total Investment Securities $ 292,500.00 $ 292,500.00
Total Premises and Equipment $ 182,025.00 $ 228,974.00
Accrued Income Receivable $ 182,982.00 $ 236,561.00
Other Assets $ - $ -
Goodwill Net $ 7,595,806.00 $8,208,972.00
-------------- -------------
TOTAL ASSETS $ 9,930,673.00 $9,578,536.00
-------------- -------------
LIABILITIES
Accrued Tax and Other $ (149,279.00) $ (356,945.00)
Unearned Revenue $ 183,809.00 $ 201,750.00
------------- -------------
TOTAL LIABILITIES $ 34,530.00 $ (155,195.00)
------------- -------------
STOCKHOLDERS EQUITY
Common Stock $ 500,000.00 $ 500,000.00
Paid in Surplus $9,250,000.00 $9,250,000.00
Retained Earnings $ 146,143.00 $ (16,270.00)
------------- -------------
TOTAL STOCKHOLDERS EQUITY $9,896,143.00 $9,733,730.00
------------- -------------
TOTAL LIABILITIES AND
STOCKHOLDERS EQUITY $9,930,673.00 $9,578,535.00
============= =============
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-----------------------------
___ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b) (2)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A U.S. National Banking Association 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(Address of principal executive offices) (Zip code)
Stanley S. Stroup, General Counsel
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(612) 667-1234
(Agent for Service)
-----------------------------
THE EMPIRE DISTRICT ELECTRIC COMPANY
(Exact name of obligor as specified in its charter)
Kansas 44-0236370
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
602 Joplin Street
Joplin, Missouri 64801
(Address of principal executive offices) (Zip code)
-----------------------------
Debt Securities
(Title of the indenture securities)
===============================================================================
<PAGE>
Item 1. General Information. Furnish the following information as to
the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
The Board of Governors of the Federal Reserve System
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is
not in default as provided under Item 13.
Item 15. Foreign Trustee. Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as a part of this
Statement of Eligibility. Norwest Bank incorporates
by reference into this Form T-1 the exhibits
attached hereto.
Exhibit 1. a. A copy of the Articles of Association of the
trustee now in effect.*
Exhibit 2. a. A copy of the certificate of authority of the
trustee to commence business issued June 28, 1872,
by the Comptroller of the Currency to The
Northwestern National Bank of Minneapolis.*
b. A copy of the certificate of the Comptroller
of the Currency dated January 2, 1934,
approving the consolidation of The
Northwestern National Bank of Minneapolis
and The Minnesota Loan and Trust Company of
Minneapolis, with the surviving entity being
titled Northwestern National Bank and Trust
Company of Minneapolis.*
c. A copy of the certificate of the Acting Comp-
troller of the Currency dated January 12, 1943,
as to change of corporate title of Northwestern
National Bank and Trust Company of
Minneapolis to Northwestern National Bank of
Minneapolis.*
d. A copy of the letter dated May 12, 1983 from
the Regional Counsel, Comptroller of the
Currency, acknowledging receipt of notice of
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name change effective May 1, 1983 from
Northwestern National Bank of Minneapolis to
Norwest Bank Minneapolis, National
Association.*
e. A copy of the letter dated January 4, 1988
from the Administrator of National Banks for
the Comptroller of the Currency certifying
approval of consolidation and merger
effective January 1, 1988 of Norwest Bank
Minneapolis, National Association with
various other banks under the title of
"Norwest Bank Minnesota, National
Association."*
Exhibit 3. A copy of the authorization of the trustee to exercise
corporate trust powers issued January 2, 1934, by the
Federal Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b) of
the Act.
Exhibit 7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.**
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
* Incorporated by reference to exhibit number 25 filed with registration
statement number 33-66026.
** Incorporated by reference to exhibit number 25 filed with registration
statement number 333-83117
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, Norwest Bank Minnesota, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Minneapolis and State of Minnesota on the 31st day of August 1999.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Jane Schweiger
---------------------------------
Jane Y. Schweiger
Corporate Trust Officer
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EXHIBIT 6
August 31, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities
authorized to make such examination may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Jane Schweiger
----------------------------
Jane Y. Schweiger
Corporate Trust Officer
